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Charge of driving without valid license instead of operating after revocation didn’t deprive circuit court of jurisdiction

State v. Cindy Lou Hilsgen, 2013AP659-CR & 2013AP660-CR, District 3, 11/19/13; court of appeals decision (1-judge; ineligible for publication); case activity

When Hilsgen moved here from Minnesota her driver’s license was revoked, and she never got a Wisconsin license. She was charged in two separate cases with operating without a valid license. Relying on § 343.05(6), she claimed in postconviction motions that she should have been charged instead with operating while revoked based on the status of her Minnesota license. (¶¶2-3). The circuit court held she forfeited this claim by not raising it before trial, so on appeal she argues the improper charge deprived the circuit court of subject-matter jurisdiction, which may be challenged at any time. (¶¶4-5).

A circuit court lacks criminal subject-matter jurisdiction only where the complaint does not charge an offense known to law. State v. Aniton, 183 Wis. 2d 125, 129-30, 515 N.W.2d 302 (Ct. App. 1994). Here the state charged an offense known to law—operating without a valid license contrary to § 343.05(3)(a)–so the circuit court had subject matter jurisdiction. (¶7). Further, Hilsgen failed to address the circuit court’s conclusion that she forfeited her challenge to the charge; that failure operates as a concession that the circuit court was correct. Schlieper v. DNR, 188 Wis. 2d 318, 322, 525 N.W.2d 99 (Ct. App. 1994) (ignoring grounds upon which circuit court ruled constitutes a concession of the validity of the court’s ruling). (¶10).

Note that § 343.05(6) says that for persons whose license is revoked or suspended,  § 343.44 “and the penalties thereunder shall apply in lieu of” § 343.05. So maybe Hilsgen should have claimed that the criminal sentences for the offenses are illegal. An illegal sentence claim can arguably be brought at any time under § 973.13, see State v. Hanson, 2001 WI 70, 244 Wis. 2d 405, 628 N.W.2d 759 (defendant’s plea to habitual traffic offender charge did not waive later challenge to HTO status because § 973.13 requires a court to declare a sentence void “in any case” where the court imposes a maximum penalty that exceeds that authorized by law), and § 974.06, see State v. Flowers, 221 Wis. 2d 20, 22-23, 28-29, 586 N.W.2d 175 (Ct. App. 1998) (defendant could raise state’s failure to prove repeater status for the first time in a successive § 974.06 motion).

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