00-3292-CR State v. Douangmala

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Defendant is a native of Laos; defense counsel requested an interpreter but none was found; at the preliminary hearing defendant said he was having difficulty understanding the proceedings; at the plea hearing he said that he was understanding “not much” of the colloquy; following the plea, defendant was sentenced to consecutive sentences totally 25 years in prison on charges of burglary, robbery, and false imprisonment; he was later ordered deported because of the conviction.

Defendant seeks to withdraw the plea, claiming he would not have made it had he known that being sent back to Laos was a possible consequence.

Section 971.08(2) states that under these circumstances the circuit court “shall vacate any applicable judgment against the defendant and permit the defendant to withdraw the plea and enter another plea.”

The precise words of sec. 971.08(2) lead inexorably to one conclusion in the present case: the circuit court must permit the defendant to withdraw his plea. Further, the legislative history indicates that the legislature intended what the statute explicitly states. We overrule the line of cases offered by the State, to the extent that these cases hold that harmless-error principles apply to a defendant who satisfies the conditions set forth in sec. 971.08(2).

We remand the cause to the circuit court with direction to vacate the judgment of conviction and permit the defendant to withdraw his plea and enter another plea.

Reversed and remanded.

Recommended for publication in the official reports.

Review of a decision of the Court of Appeals, Abrahamson, C.J.

Attorneys:

For Appellant: Robert R. Flatley, Green Bay

For Respondent: Shunette T. Campbell, James E. Doyle, Madison