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COA denies writ of coram nobis seeking to vacate OWI based on Forrett

State v. Singh, 2021AP1111-CR, 8/18/22, District 4 (1-judge opinion, ineligible for publication); case activity (including briefs)

Singh challenges his 2005 conviction for OWI, first offense. He first asks for a writ of coram nobis vacating the conviction. Alternatively, he asks that his conviction be vacated or amended under State v. Forrett, 2022 WI 37, 401 Wis. 2d 678, 974 N.W.2d 422, which held that an OWI penalty cannot be increased because of a prior revocation stemming from a refusal to submit a warrantless blood draw.

A writ of coram nobis allows the trial court to correct its own error of fact–an error that is not evidence in the record and that it would not have committed had the problem been brought to its attention.

Singh’s petition for writ of coram nobis argued that §345.52(1) prohibits a subsequent conviction under state law where the defendant’s conviction for that conduct under a traffic ordinance was vacated.  This is an error of law, not an error of fact. A petition for writ of coram nobis cannot be used to correct an error of law. Opinion, ¶11.

Petitions for writ of coram nobis are rare and a successful one is even rarer. Click here to read how the Innocence Project recently won one.

As for Singh’s Forret argument, he previously presented it to the circuit court via a motion under §973.13, which authorizes the commutation of a sentence that exceeds the maximum penalty authorized by law.  He was already granted that relief. Section 973.13 does not authorize a court to amend or vacate a conviction, which is the relief Singh seeks in this appeal. Opinion, ¶12.

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