State Ex Rel. McDonald v. Circuit Court for Douglas County
State Ex Rel. McDonald v. Circuit Court for Douglas County
Opinion of the Court
This is a review of a decision of the court of appeals granting a supervisory writ prohibiting the circuit court for Douglas county, Branch II, Hon. Douglas S. Moodie, the Douglas county district attorney, and the state attorney general from conducting a preliminary examination in the prosecution of a violation of sec. 346.67, Stats.
This action arises from a criminal complaint filed by the district attorney for Douglas county on November 13, 1979, charging David M. McDonald with “feloniously” failing to stop his vehicle and return to the scene of an accident involving injury to a person, in violation of sec. 346.67, Stats. Prior to a scheduled preliminary examination, the judge advised McDonald of his belief that the charge was a felony and rescheduled the preliminary examination to provide McDonald an opportunity to seek extraordinary relief from the court of appeals in the form of a determination whether the offense with
I. MOOTNESS
McDonald’s plea of guilty, payment of a fine, and consequent discharge raises the issue of mootness. The attorney general, representing the petitioners on this review, concedes that as to McDonald individually the question is moot because the controversy with respect to his violation of sec. 346.67, Stats., has been terminated.
A case is moot when a determination is sought which, if rendered, could have no practical effect upon a then-existing controversy. In Matter of K. H., 98 Wis.2d 295, 300, 296 N.W.2d 746 (1980); Family Savings & Loan v. Barkwood Landscaping Co., Inc., 93 Wis.2d 190, 207, 286 N.W.2d 581 (1980); State ex rel. Ellenburg v. Gagnon, 76 Wis.2d 532, 535, 251 N.W.2d 773 (1977). A determination by this court whether a violation of sec. 346.67, Stats., constitutes a felony or a misdemeanor will have no effect upon McDonald, and as the case involves him individually, we hold it to be moot. This conclusion does not preclude our consideration of the basic question involved in the case, however, as we have often stated that we will reach the merits of a moot question where it presents an issue of great public importance or where the situation involved will arise with sufficient frequency to warrant a definitive decision to guide trial courts in
II. FELONY OR MISDEMEANOR
Sec. 346.67, Stats., imposes upon the operator of a motor vehicle involved in an accident the duty to stop at or return to the scene of the accident, provide identification, and render reasonable assistance to any person injured in the accident. The penalty for violating sec. 346.67 is found in sec. 346.74(5). Pursuant to that section, if the accident does not involve death or injury of a person, a violator may be fined not more than $200 and imprisoned for not more than six months. If the accident results in death or injury to a person, the violator may be fined $5 to $5,000 or imprisoned from ten days to one year.
The state argues that the violation involved in this case, that is, one involving death or injury to a person, is a felony because the maximum period of incarceration upon conviction, pursuant to sec. 346.74(5), Stats., is one year with no place of confinement designated. Sec. 939.60,
McDonald responds that the issue is not properly determined solely by reference to secs. 939.60 and 973.02, Stats., because the offense involved predates the adoption of the predecessor to sec. 973.02. Rather, he argues that the issue is controlled by this court’s decision in State ex rel. Gaynon v. Krueger, 31 Wis.2d 609, 143 N.W.2d 437 (1966). In Gaynon we held that, where an offense predated the 1945 revision of the criminal code which created sec. 353.27 (2), Stats, (later 959.044 and now 973.02), its classification as a felony or misdemeanor must be determined by resort to legislative intent at the time of its creation. This holding was based upon the view that “[sec. 973.02] was not legislation for the purpose of changing grades of crimes but was as its caption indicates to designate the ‘Place of imprisonment when none expressed’ in the section creating the crime. It deals solely with the place of imprisonment of felonies and misdemeanors and should not be used retroactively as a whiplash to change the grade of an offense by reference to sec. 939.60.” Id. at 618. Applying the principles set forth in Gaynon, McDonald argues that an examination of the legislative history of sec. 346.67 reveals a legislative intent that the hit and run offense be classi
In an effort to circumvent Gaynon, the state relies upon Zastrow v. State, 62 Wis.2d 381, 215 N.W.2d 426 (1974), and State v. Asfoor, 75 Wis.2d 411, 249 N.W.2d 529 (1977), for the proposition that, even where an offense predates the 1945 revision of the criminal code, if the section creating the offense is substantively changed subsequent to that revision, it is permissible to apply the normal presumption that the legislature is aware of other sections of the statutes when enacting legislation. Arguing that the penalty provisions applicable to a violation of sec. 346.67, Stats., were substantively changed in 1957, the state concludes it is permissible to presume that in revising that section the legislature was aware of secs. 939.60 and the predecessor to 973.02, and that those sections apply.
Both parties agree that under a strict reading of the applicable statutes sec. 346.67, Stats., and its penalty section, 346.74(5), create a felony where the accident involves death or personal injury. The question then is whether under the rationale of Gaynon and its progeny a strict reading is permissible and, if not, whether the intent of the legislature as reflected in the legislative history of secs. 346.67 and 346.74(5) was to classify the instant violation as a felony or misdemeanor.
In Gaynon we were confronted with the task of classifying a violation of sec. 71.11(42), Stats. 1965,
Three members of this court dissented in Gaynon, expressing the opinion that the statutes in question were plain and unambiguous and were not susceptible to any other interpretation. Citing Town of Madison v. City of Madison, 269 Wis. 609, 614, 70 N.W.2d 249 (1955), for the rule that statutes are presumed to be enacted with
In Zastrow the court again rejected a literal application of secs. 939.60 and 973.02, Stats., but it was able to employ the exception foreshadowed in Gaynon to hold that welfare fraud involving a sum of money between $100 and $500 is a felony. The statutory penalty, found in sec. 49.12, Stats. 1971, was similar to the one we are dealing with in this case in that it provided for a term of confinement not to exceed one year. We stated:
“The penalties provided by sec. 49.12, Stats., were changed considerably in 1957 and must be presumed to have been enacted in light of the provisions of the Criminal Code and the ‘place of imprisonment’ statute. Therefore, we agree with the position of the state that the statutes compel the conclusion that a penalty of ‘not more than one year’ creates a felony.” 62 Wis.2d at 387.
The most recent consideration of this sort of issue was in State v. Asfoor, supra. There we applied the post criminal code amendment technique to hold that a violation of sec. 940.24(1), Stats. 1973, was a felony. Discussing the nature and effect of the amendments to the statute in question, we said:
“Presumably the legislature was aware that when no place of imprisonment was expressed and the sentence was for a year, a violator could be imprisoned in either the state prison or county jail. Again, presumably, the legislature was aware that a crime which was punishable (not punished) by imprisonment in the state prison was a felony.” 75 Wis.2d at 439.
Our examination of these cases leads us to question seriously the rationale of Gaynon and the post criminal
As was argued by Chief Justice Currie, dissenting in Gaynon, concerning the statutes at issue there, the statutes involved directly in this review (secs. 346.67, 346.74 (5), 939.60, and 973.02) are clear and unambiguous and thus leave no room for any interpretation except that which can be derived from the plain meaning of the statutes themselves. Kearney & Trecker Corp. v. Dept. of Revenue, 91 Wis.2d 746, 753, 284 N.W.2d 61 (1979); State v. Tollefson, 85 Wis.2d 162, 167, 270 N.W.2d 201 (1978); Moherek v. Tucker, 69 Wis.2d 41, 45, 230 N.W. 2d 148 (1975). The statutes clearly denominate the offense of which McDonald was convicted a felony.
Not only is this method of analysis compelled by allegiance to basic principles of statutory construction, but it is to be favored for other reasons as well. A review of the current statutes reveals an alarming number of
Despite the foregoing, our holding in this case does not require that we expressly overrule Gaynon. We believe the legislative history of sec. 346.67 and its accompanying penalty section, sec. 346.74(5), reveal a clear intent that failing to return to the scene of an accident involving death or injury to a person be a felony, and thus Gaynon is not an obstacle to reaching that result.
By the Court. — The decision of the court of appeals is reversed.
Sec. 346.67, Stats., provides:
“346.67 Duty upon striking person or attended or occupied vehicle. (1) The operator of any vehicle involved in an accident resulting in injury to or death of any person or in damage to a vehicle which is driven or attended by any person shall immediately stop such vehicle at the scene of the accident or as close thereto as possible but shall then forthwith return to and in every event shall remain at the scene of the accident until he has fulfilled the following requirements:
*571 “(a) He shall give his name, address and the registration number of the vehicle he is driving to the person struck or to the operator or occupant of or person attending any vehicle collided with; and
“(b) He shall, upon request and if available, exhibit his operator’s license to the person struck or to the operator or occupant of or person attending any vehicle collided with; and
“(c) He shall render to any person injured in such accident reasonable assistance, including the carrying, or the making of arrangements for the carrying, of such person to a physician, surgeon or hospital for medical or surgical treatment if it is apparent that such treatment is necessary or if such carrying is requested by the injured person.”
The penalties for violating this section are provided in sec. 346.-74(5), Stats., as follows:
“(5) Any person violating any provision of s. 346.67 may be fined not more than $200 or imprisoned not more than 6 months or both if the accident did not involve death or injury to a person and may be fined not less than $5 nor more than $5,000 or imprisoned not less than 10 days nor more than one year if the accident involved death or injury to a person.”
Sec. 939.60, Stats., provides:
“939.60 Felony and misdemeanor defined. A crime punishable by imprisonment in the Wisconsin state prisons is a felony. Every other crime is a misdemeanor.”
Sec. 973.02, Stats., provides:
“973.02 Place of imprisonment when none expressed. When a statute authorizes imprisonment for its violation but does not*574 prescribe the .place of imprisonment, 1) a sentence of less than one year shall be to the county jail, 2) a sentence of more than one year shall be to the Wisconsin state prisons and the minimum under the indeterminate sentence law shall be one year, and 3) a sentence of one year may be to either the Wisconsin state prisons or the county jail. But in any proper case sentence and commitment may nevertheless be to the department or any house of correction or other institution as provided by law.”
Sec. 71.11(42), Stats. 1965, provides:
“71.11 Administrative provisions; penalties. . . .
“(42) Same; failure to pile return; fraud. Any person, other than a corporation, who fails or refuses to make a return at the time hereinbefore specified in each year or shall render a false or fraudulent return shall upon conviction be fined not to exceed $500, or be imprisoned not to exceed one year, or both, at the discretion of the court, together with the cost of prosecution.”
This section was amended and its violation expressly designated a felony by Chapter 314, Laws of 1969.
See, for example: secs. 47.07(6), 49.12(1), 72.86(6), 79.17(6), 100.03(2) (b), 100.26(6), 101.94(8) (b), 134.05, 139.25(2), 161.41 (1) (d), 161.41(lm) (d), 161.41(2) (d), 161.41 (2r) (a), 161.42(2), 176.053(2), 344.48(2), 446.07, 765.30(1), 765.30(2), 768.07, Stats. 1979-80.
The court of appeals concluded that the violation involved herein was intended by the legislature to be a misdemeanor. We disagree. The “hit and run” offense was introduced as a misdemeanor by Chapter 600, Laws of 1911, creating sec. 1636-54, Stats. Chapter 576, Laws of 1913, changed the offense to a felony and provided a penalty of a fine and imprisonment from three months up to two years. That section, later renumbered sec. 4416a and then 343.181, was captioned “Motorist to assist injured person,” and the offense was limited to a failure to stop where the acci
Concurring Opinion
(concurring). A computer search shows that more than 15 statutes provide that an offense may be punished by imprisonment for one year without specifying the place of confinement. Each statute raises the Gaynon-Zastrow-Asfoor and (now) McDonald issue of legislative intent, namely, did the legislature intend the offense to be' punished as a felony or misdemeanor. Though the court “question [s] seriously” the Gaynon decision, it does not “expressly overrule” it. The court continues to look to legislative history to determine whether the legislature intended the offense to be a felony or misdemeanor.
Whether the “alarming number of offenses” (supra, p. 578) which present this question will spawn an alarming number of cases of the Gaynon-Zastrow-Asfoor-McDonald species remains to be seen. The prospect is not an attractive one. Determining legislative intent by judicial decision of the trial court, the court of appeals and then the supreme court is an expensive and time-consuming procedure. A simpler, speedier and cheaper way to determine the legislative intent as to these 15 or so offenses is by legislative decision. The legislature should clearly state its intent. The legislature can compile a list of all statutes providing that the offense may be punished by imprisonment for one year without specifying the place of confinement; the legislature can then decide which offenses are to be punished as felonies and
Reference
- Full Case Name
- State Ex Rel. David M. McDonald, Petitioner, v. Circuit Court for Douglas County, Branch II, the Honorable Douglas S. Moodie, Presiding; Keith Peterson, Douglas County District Attorney; And the Wisconsin State Attorney General’s Office, Respondents-Petitioners
- Cited By
- 30 cases
- Status
- Published