Tate v. State
Tate v. State
Opinion of the Court
For his part in the safecrack-ing at the savings and loan association, the defendant was charged and convicted of burglary
The evidence, circumstantial as it usually is in burglary cases,
2. New trial sought.
Defendant asserts a new trial should be ordered “in the interest of justice” because his partner, Richard
Marciniak’s statement does not impair the credibility of the state’s witnesses and in light of a number of factors is itself worthy of little credibility. Defendant and Marciniak were arrested two blocks from the savings and loan building five to ten minutes after the alarm sounded. In another case, both have been convicted as a result of their joint effort to burglarize a West Allis credit union. Marciniak’s long record for criminal activity would hardly enhance his reputation for truth and veracity. Of new trials ordered in the interest of justice, this court has termed them an “. . . extraordinary remedy ... to be resorted to on appeal only when it clearly appears that there has been a miscarriage of justice.”
3. Sentences imposed.
As to the sentence imposed by the Honorable ROBERT C. Cannon in the savings and loan safecracking, defendant claims error based on the trial judge’s not ordering or using a presentence report, and in his not stating reasons for the particular sentence imposed. We find no abuse of discretion, under the facts here, in not ordering a presentence report or using one available from another conviction in another case of this defendant.
As to the other sentence challenged, there is involved a sentence imposed by the Honorable Herbert J. Steffes for another burglary committed by defendant and his partner, Marciniak. They were arrested at the scene of
“. . . I am not predicating my sentence on the crime on which Judge Cannon sentenced him, so I am going to give him the same kind of sentence I gave Marciniak, except it won’t be consecutive — it’s concurrent. . . .”
As Judge Steppes stated:
“. . . on the facts in this case and on the prior and complete history of this defendant prior to this offense, and the nature of this offense — this was a ‘safe job’— a safe burglary — he deserves the kind of sentence I am going to give him . . . .”
These facts — with this record — given the nature of these burglaries — the gravity of the offenses — the juvenile court appearances — the sentences imposed in the two cases present no abuse of discretion on the part of either sentencing judge.
By the Court. — In Case Number G-9832, the judgment of conviction and sentence, and the order denying motions after verdict are affirmed.
In Case Number G-8116, the judgment of sentence is affirmed.
Sec. 943.10 (1) (a), Stats.
Sec. 939.05, Stats. See also: State v. Nutley (1964), 24 Wis. 2d 527, 554, 555, 129 N. W. 2d 155; Bautista v. State (1971), 53 Wis. 2d 218, 224, 191 N. W. 2d 725; Bethards v. State (1970), 45 Wis. 2d 606, 619, 173 N. W. 2d 634.
Harris v. State (1971), 52 Wis. 2d 703, 707, 191 N. W. 2d 198.
See: Bautista v. State, supra, at page 223. See also: Taylor v. State (1972), 55 Wis. 2d 168, 176, 197 N. W. 2d 805; State ex rel. Kanieski v. Gagnon (1972), 54 Wis. 2d 108, 116, 194 N. W. 2d 808.
See: Whitmore v. State (1973), 56 Wis. 2d 706, 203 N. W. 2d 56. The conviction was upheld where defendant was arrested in a car a few minutes after the crime at a point one block from the scene of the crime, and a search of the car revealed the victim’s property. See also: Taylor v. State, supra, where the conviction was upheld where police spotted an automobile matching the description of the getaway car about five minutes after the robbery and circumstantial evidence was held sufficient to support the conclusion that defendant was a party to the crime.
Freeman v. State (1971), 51 Wis. 2d 537, 541, 187 N. W. 2d 191. See also: State v. Lindsey (1972), 53 Wis. 2d 759, 769, 193 N. W. 2d 699; Zdiarstek v. State (1972), 53 Wis. 2d 420, 430, 192 N. W. 2d 833.
See: Byas v. State (1972), 55 Wis. 2d 125, 129, 197 N. W. 2d 757, this court stating: “. . . We are of the opinion that the failure to order and consider a presentenee report was not an abuse of discretion.”
See: McCleary v. State (1971), 49 Wis. 2d 263, 182 N. W. 2d 512, where this court adopted a court rule requiring a sentencing judge to state reasons for imposing a particular sentence. Reaffirmed in State v. Schilz (1971), 50 Wis. 2d 395, 401-403, 184 N. W. 2d 134. See also: State v. Morales (1971), 51 Wis. 2d 650, 658, 187 N. W. 2d 841, this court stating: “. . . In view of the fact that the sentence herein was imposed long before the mandate in MeCleary, the trial judge cannot be expected to conform precisely to those standards. . . .”
“The Court: First of all, as I said before, I am convinced beyond a reasonable doubt that he committed the crime of burglary. . . . No one is safe with all the burglaries that are taking place in Milwaukee today.”
“. . . He’s been arrested and convicted of a previous burglary charge . . . you go back into his whole history, and it is burglary, burglary, theft, all the way through . . . .”
State v. Tuttle (1963), 21 Wis. 2d 147, 150, 124 N. W. 2d 9.
Reference
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- Tate, in error v. State, in error
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- 1 case
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- Published