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Hit-and-Run – §§ 346.67(1) and 346.74(5)(b), Hit and Run Causing Personal injury – Felony Rather Than Misdemeanor

State v. Ross M. Brandt, 2009 WI App 115
For Brandt: John M. Yackel

Issue/Holding: Although it carries a maximum penalty of 9 months’ imprisonment, hit-and-run causing injury less than serious bodily harm, §§ 346.67(1) and 346.74(5)(b), is a felony.

Obviously, this result is going to make life more difficult for hit-run representation, for the obvious reason: it’s one thing to advise your client to plead out to a misdemeanor, another to plead to a felony. But if nothing else, the holding may well have narrow application, notwithstanding some cause for concern. Which brings us to the question, What makes a crime a felony as opposed to a misdemeanor? Legislative whim, apparently, as exemplified by this case. Thus, § 346.74(5)(e) explicitly labels as a “felony” any violation of § 346.67(1) if either death or bodily injury is a result of the accident. And that’s enough for the court of appeals. The court relegates the potential tension to a footnote, ¶6 n. 3, worth quoting in full:

Wisconsin Stat. § 939.60 provides that “[a] crime punishable by imprisonment in the Wisconsin state prisons is a felony. Every other crime is a misdemeanor.” Wis. Stat. § 973.02 provides, in relevant part, that “if a statute authorizes imprisonment for its violation but does not prescribe the place of imprisonment, a sentence of less than one year shall be to the county jail.” Read together, these statutes indicate that crimes subject to a maximum period of incarceration of less than one year are generally classified as misdemeanors, because they are not punishable by imprisonment in the Wisconsin state prisons.

In other words, Brandt’s argument is: all jail sentences are misdemeanors; a hit-run-injury sentence must be served in jail; therefore, a hit-run-injury is a misdemeanor. The syllogism is impeccable, far as it goes, but it simply doesn’t go far enough. As the court of appeals says in so many words, while it is generally true that a jail sentence makes the crime a misdemeanor, nothing in the statute makes it necessarily so. In this instance the effective presumption of a misdemeanor is overcome by a specific, explicit designation of the offense as a felony, ¶¶6-8. In terms of statutory construction principles, resolution turns on the idea that the specific controls the general:

¶8        However, while Wis. Stat. §§ 939.60 and 973.02 involve the general categorization of crimes as felonies and misdemeanors, Wis. Stat. § 346.74(5)(e) specifically applies to the violations. Any inconsistency is therefore resolved by the principle that when two or more statutes relate to the same subject matter, the more specific statute controls. Machgan, 306 Wis.  2d 752, ¶7. This conflict was not present in McDonald, as the application of § 939.60 and § 973.02 in that case was consistent with the language of § 346.74(5)(e). Because the specific language of § 346.74(5)(e) stating that the offense is a felony controls in this case, the 2001 amendment to § 346.74(5)(b) reducing the maximum punishment to less than one year of imprisonment did not change the offense to a misdemeanor.

Like the conclusion or not, its logic is hard to argue with. Net result, then, is that place (prison) and term (1+ years) of incarceration ordinarily draw the line between felony and misdemeanor, but a very specific legislative designation overrides this general categorization. And that makes the holding narrow: there must be a specific designation before a jail-sentence crime is elevated to felony status. The worrisome part is that, so far as can be seen, nothing precludes the legislature from labeling any offense a felony.


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