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07/01/83 STATE WISCONSIN v. PERVAN ZEB SMITH

July 1, 1983

STATE OF WISCONSIN, PLAINTIFF-RESPONDENT,
v.
PERVAN ZEB SMITH, DEFENDANT-APPELLANT



Appeal from an order of commitment of the Circuit Court for Milwaukee County, Frederick P. Kessler, Circuit Judge, an order denying motion for post-conviction relief of the Circuit Court for Milwaukee County, Clarence R. Parrish, Circuit Judge, and an order of recommitment of the Circuit Court for Milwaukee County, Clarence R. Parrish, Circuit Judge. On bypass from Court of Appeals.

Shirley S. Abrahamson, J. Day, J. (dissenting). Justices William G. Callow and Louis J. Ceci join this Dissenting opinion.

The opinion of the court was delivered by: Abrahamson

This matter is before us on a petition to bypass the court of appeals. The defendant appealed to the court of appeals from a commitment order after being found not guilty by reason of mental disease or defect, *fn1 an order denying post-conviction relief, sec. 974.02, Stats. 1981-82, *fn2 and an order recommitting the defendant on defendants' petition for reexamination pursuant to sec. 971.17(2), 1981-82. *fn3 The state, relying on Hoppenrath v. State, 97 Wis. 2d 449, 293 N.W.2d 910 (1980), moved to dismiss the appeal on jurisdictional grounds. The defendant then petitioned to bypass the court of appeals, secs. 808.05(1), 809.60, 1981-82, and the state supported defendant's petition. We granted the petition to bypass for the limited purpose of reexamining this court's decision in Hoppenrath v. State, 97 Wis. 2d 449, 293 N.W.2d 910 (1980).

Both the state and the defendant urge this court to reconsider Hoppenrath. Both the state and the defendant maintain that Hoppenrath's holding is wrong insofar as it denies a defendant appellate review of possible errors occurring in the guilt phase of a trifurcated trial when the defendant pleads not guilty (thereby contesting the issue of guilt) and not guilty by reason of mental disease or defect and the defendant appeals from the final order of commitment. While the state urges us to reconstrue our holding in Hoppenrath and overrule it only to the extent that Hoppenrath would govern the facts of this case, the defendant goes further than the state and urges this court to overrule the Hoppenrath decision entirely. We have been persuaded to overrule Hoppenrath entirely.

The facts relating to the jurisdictional issue which is presented to this court are undisputed. *fn4

The defendant was charged with battery and first degree murder. He entered a plea of not guilty and not guilty by reason of mental disease or defect. Prior to trial the defendant moved to suppress his oral statements and to dismiss the action because his arrest was illegal. The circuit court denied those motions.

Following the first phase of the trifurcated trial, a jury found the defendant guilty of both crimes charged. The defendant waived the jury as to phases two and three. In phase two of the trial, the circuit court found that the defendant lacked the capacity to appreciate the wrongfulness of his acts or to conform his actions to law. In phase three, the circuit court found the defendant to be a danger to the community and committed him to the Department of Health and Social Services, Central State Hospital.

The defendant sought review of alleged errors committed during the guilt phase of the trial by filing a motion for a new trial. The defendant contended that a new trial should be granted on the following grounds: (1) newly discovered evidence indicates someone else committed the crimes; (2) the circuit court erred in denying his motions to suppress and dismiss; (3) the circuit court erred in instructing the jury that a defense witness was unavailable due to incompetency; (4) evidence was not disclosed; and (5) the interests of Justice require a new trial. The circuit court, citing this court's decision in State v. Hoppenrath, 97 Wis. 2d 449, 293 N.W.2d 910 (1980), denied the motion on the ground that it lacked jurisdiction to hear matters relating to the guilt phase of the trial. The circuit court ordered the defendant recommitted upon the defendant's petition for reexamination.

The defendant appealed to the court of appeals from the original order of commitment, the order denying post-conviction relief, and the order of recommitment. The court of appeals consolidated these appeals. The issues raised on appeal relate to the alleged errors in the guilt phase of the trifurcated trial which were raised in the defendant's motion for post-conviction relief. This court granted direct review.

We begin our Discussion by summarizing the Hoppenrath decision. In Hoppenrath, the defendant plead guilty and not guilty by reason of mental disease or defect after the trial court had denied his motion to suppress evidence. *fn5 After the defendant was found not guilty by reason of mental disease or defect and was ordered committed, he sought review of the trial court's order denying his motion to suppress. The court concluded in Hoppenrath that an appellate court had no jurisdiction to review an order denying a motion for suppression entered in the underlying criminal proceeding when the defendant is found not guilty by reason of mental disease or defect and is ordered committed. The Hoppenrath court apparently reasoned as follows: The defendant can not challenge the order denying suppression of evidence on appeal from a finding of not guilty by reason of mental disease or defect, because such a finding is not equivalent to a judgment of conviction and the defendant is not "aggrieved" by such a finding; the defendant can not challenge the order denying suppression of evidence on appeal from the commitment order, because the commitment order is wholly separate and independent from the underlying criminal proceeding in which the suppression order arose and an appeal from the commitment order does not bring up issues raised in the separate guilt proceeding. Hoppenrath, supra, 97 Wis. 2d at 462.

Although Hoppenrath involved a guilty plea, in conjunction with a plea of not guilty by reason of mental disease or defect, this court, as both the state and defendant recognize, did not limit its language or reasoning to that fact situation. The Hoppenrath holding is applicable to a case in which the defendant contests guilt (pleads both not guilty and not guilty by reason of mental disease or defect), is found guilty and not guilty by reason of mental disease or defect, and is committed. Thus Hoppenrath can be read to govern the situation presented in this case.

The state and the defendant agree that this court should, at a minimum, limit Hoppenrath so that it does not apply to defendants who have contested the issue of guilt and who are found not guilty by reason of mental disease or defect. The state explains its position in this case as follows:

"t is the State's position that Hoppenrath erroneously denies review of alleged errors occurring in the guilt phase of a trifurcated trial where the defendant has, in fact, contested the issue of guilt. . . . The state acknowledges that its earlier position, especially at oral argument in Hoppenrath, was not entirely consistent with its position in the instant case. However, the analysis proffered in the Dissenting opinion in Hoppenrath and careful reflection have lead us to conclude that we must ask the court to modify the approach taken in Hoppenrath." State's Memorandum, p. 5.

The state's position in this case is consistent with the position the state took immediately after the Hoppenrath decision was announced when the state supported Hoppenrath's motion to reconsider that decision. The state's memorandum in support of reconsideration of Hoppenrath explained its position as follows:

"The state reluctantly asks the Court to modify its opinion. We won this case and certainly, at least at oral argument, proffered arguments not entirely inconsistent with some of the points which we now ask the Court to rethink. Yet, the Dissenting opinion and careful reflection has led us to the Conclusion that we must ask the Court to modify its opinion." ...


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