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§ 974.06 Motion – Custody Requirement; OWI – Enhancer

State v. David D. Austin, 2011AP1042, District 1, 4/10/12

court of appeals decision (1-judge, not for publication); pro se; case activity

Because Austin was no longer in custody under the conviction he sought to collaterally attack pursuant to § 974.06, the court lacked jurisdiction to entertain his motion. It is not enough that he was in custody under some sentence, rather than the particular conviction he sought to attack:

¶12      Austin submits that the wording of Wis. Stat. § 974.06 permits the bringing of an action regardless of whether he is serving a sentence for that case.  He points to language found in the statute which states:  “a prisoner in custody under sentence of a court” is eligible for petitioning under the statute as evidence that he can bring his action as he is currently serving a sentence handed down by “a court.”  Austin is mistaken.

¶13      The case law does not support his interpretation of the statute.  As early as 1976, our supreme court held that a party must be serving the sentence of the specific case for which relief is sought under Wis. Stat. § 974.06 in order for the trial court to have jurisdiction. See State v. Theoharopoulos, 72 Wis. 2d 327, 329, 240 N.W.2d 635 (1976) (quoting § 974.06 and recognizing that the circuit court lacks jurisdiction to consider a motion for postconviction relief brought under § 974.06 if the defendant has completed his sentence).  In that case, the petitioner was in custody under federal detention and threatened with deportation as a result of the state charge.  Theoharopoulos, 72 Wis. 2d at 330. Theoharopoulos wished to attack his state conviction via § 974.06.  Id.   Because he had already served his sentence, the supreme court found that the trial court had no jurisdiction.  Id.  The same result applies here.  Consequently, the trial court did not have jurisdiction to hear Austin’s motion.

Austin, citing Clay v. McBride, 946 F. Supp 639 (N.D. Ind. 1996), also argued that he comes within the rule that a prior conviction used to enhance a present sentence may be collaterally attacked, even if the prior sentence has reached discharge. The court rejects the argument, because the prior conviction at issue wasn’t in fact used to enhance Austin’s present sentence but, rather, was merely used as a factor to deny work-release, ¶14. Note, separately, the limitation imposed by authority such as State v. Hahn, 2000 WI 118, ¶4, 238 Wis.2d 889, 618 N.W.2d 528 (“We conclude that an offender does not have a federal constitutional right to use the enhanced sentence proceeding predicated on a prior state conviction as the forum in which to challenge the prior conviction, except when the offender alleges that a violation of the constitutional right to a lawyer occurred in the prior state conviction.”), modified on other grounds, 2001 WI 6, 241 Wis.2d 85, 621 N.W.2d 902.

OWI – Enhancer 

Even if it were to reach the merits of the claim, it would hold that Austin was subject to OWI enhancement, notwithstanding his argument that 2 of his priors must have occurred within a 10-year period,  § 346.65(2)(b).

¶18      Although this court will concede that the statute is confusing, its application to the facts here prove that Austin fell within Wis. Stat. § 346.65(2)(c), which reads:

Except as provided in pars. (f) and (g), shall be fined not less than $600 nor more than $2,000 and imprisoned for not less than 30 days nor more than one year in the county jail if the number of convictions under ss. 940.09(1) and 940.25 in the person’s lifetime, plus the total number of suspensions, revocations and other convictions counted under s. 343.307(1), equals 3, except that suspensions, revocations or convictions arising out of the same incident or occurrence shall be counted as one.

This is so because Austin, in his lifetime, had three prior convictions for OWI.

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