Singh, appealing pro se, seeks to reverse a twelve-year-old OWI-second conviction for which his sentence is long over. He had initially been found liable for a first offense; this forfeiture was reopened and dismissed, presumably after a prior out-of-state implied consent suspension was discovered. (¶¶2, 6). Singh claims that this violated his double jeopardy rights and perhaps also that the suspension didn’t count under the counting statute, Wis. Stat. § 343.307(1). (¶6). (No appellant’s briefs being available online, we can only surmise his precise arguments.)
Being out of custody, Singh can’t raise these issues via Wis. Stat. § 974.06, so he instead sought a writ of coram nobis in the circuit court. He appeals the denial of same.
The court of appeals notes some fairly robust violations of appellate briefing rules by the appellant (¶1 n.2), but this isn’t the basis for affirmance. Instead the court observes that, at least in Wisconsin, coram nobis can only be used to correct crucial factual errors not apparent from the circuit court record, while Singh seeks to raise questions of law. See State ex rel. Patel v. State, 2012 WI App 117, ¶¶12-13, 344 Wis. 2d 405, 824 N.W.2d 862.
Whether a defendant’s conviction violates his or her double jeopardy rights is a question of law. State v. Sauceda, 168 Wis. 2d 486, 492, 485 N.W.2d 1 (1992). Whether an out of state implied consent suspension may be used to statutorily enhance an OWI penalty is a question of statutory interpretation, which is also a question of law. See WIS. STAT. § 343.307(1) (setting forth which convictions, suspensions, or revocations count as prior offenses in an OWI case); Apprendi v. New Jersey, 530 U.S. 466 (2000); State v. Cole, 2000 WI App 52, ¶3, 233 Wis. 2d 577, 608 N.W.2d 432 (statutory interpretation is a question of law). Accordingly, I affirm the circuit court’s order denying Singh’s petition.
Though the court declines to address the double jeopardy claim, it’s well settled in Wisconsin that an erroneous conviction for a first offense, being civil, does not bar a criminal prosecution for the same incident as a second offense. See, e.g., Walworth Cty. v. Rohner, 108 Wis. 2d 713, 722, 324 N.W.2d 682 (1982). For more discussion of Wisconsin’s narrow view of the writ of coram nobis, as contrasted with that of at least some federal courts, see our post on Patel.