author: ANN WALSH BRADLEY, J. N. PATRICK CROOKS, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Jeremy J. Hanson, Defendant-Appellant-Petitioner.
    Supreme Court

      No. 99-3142-CR.

      Oral argument April 12, 2001.

    Decided June 26, 2001.

    2001 WI 70
    (Also reported in 628 N.W.2d 759.)

      For the defendant-appellant-petitioner there were briefs by James B. Connell and Crooks, Low, Connell &

      Rottier, S.C., Wausau, and oral argument by James B. Connell.

    For the plaintiff-respondent the cause was argued by Kathleen M. Ptacek, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.

       Brief of Defendant-Appellant-Petitioner at 18 (emphasis added).
      We also note that Hanson presents an argument regarding the legislature's intent to reserve criminal punishment for serious offenses, and argues that the legislature did not intend that he be treated criminally. Hanson's reliance on this legislative intent is misplaced. The legislative intent on which he relies is that of the legislature's reclassification of the offenses of OAR and OAS in 1997 Wis. Act 84. While some of the provisions of that act, including Wis. Stat. § 351.09, were in effect on October 31, 1998, the date of Hanson's fifth offense, the reclassification of OAR and OAS did not take effect until August 1, 2000. Hanson therefore is not subject to the statutory scheme to which the proffered legislative intent applies. Rather, as we have explained, he is subject to the law of OAR and OAS under the prior statutory scheme. Under that statutory scheme he can evade a criminal penalty only if the revocation or suspension that is the basis of the violation was imposed solely due to a failure to pay a fine or forfeiture. Wis. Stat. § 343.44(2)(e)2.

   ANN WALSH BRADLEY, J.

¶ 1. The defendant, Jeremy J. Hanson (Hanson), seeks review of a decision of the court of appeals upholding the circuit court's judgment convicting him of operating a motor vehicle while his operating privileges were revoked as a habitual traffic offender (HTO). Hanson contends that because his HTO status was rescinded pursuant to Wis. Stat. § 351.09 (1997-98), the circuit court erroneously imposed a criminal sentence rather than a civil forfeiture.

¶ 2. We conclude that a criminal sentence based solely upon Hanson's HTO status, which was rescinded under § 351.09 prior to his conviction, is a sentence in excess of that authorized by law and is invalid under Wis. Stat. § 971.13. However, given the state of the record, we cannot determine whether Hanson's driving record supported a criminal sentence even without consideration of his HTO status. Accordingly, we reverse the decision of the court of appeals and remand to the circuit court for such a determination.

r-H

¶ 3. On four occasions in 1996, Hanson was convicted of operating a motor vehicle after his license had been revoked or suspended (OAR/OAS), contrary to Wis. Stat. § 343.44(1) (1995-96). As a consequence of the four OAR/OAS convictions, Hanson was classified as an HTO in December 1996 pursuant to Wis. Stat. § 351.02 (1995-96). His HTO classification resulted in the revocation of his driving privileges for a period of five years. See Wis. Stat. § 351.025(1) (1995-96). The five-year HTO revocation was one of a number of suspensions and revocations imposed upon Hanson for his numerous 1996 violations.

¶ 4. While still subject to the HTO revocation, and perhaps to other suspensions and revocations, Hanson was caught illegally driving a fifth time on October 31, 1998. Hanson was charged with his fifth violation of Wis. Stat. § 343.44(1). In the criminal complaint, the State listed the four 1996 OAR/OAS convictions and alleged that for his fifth offense Hanson was subject to a maximum fine of $2,500 and a potential sentence of one year in jail.

¶ 5. The complaint also set forth that Hanson's sentence was subject to enhancement due to his HTO classification. The state alleged that under Wis. Stat. § 351.08, Hanson was subject to an additional $5,000 fine and a possible 180 additional days of imprisonment.

¶ 6. Following the issuance of the complaint, Hanson pursued a rescission of his HTO status through the Department of Transportation (Department). As part of the 1997 legislative overhaul of the offense of OAR/OAS, which included the removal of OAR/OAS as a predicate offense that may be used to classify a driver as an HTO, the Department was authorized to redetermine a driver's HTO status without consideration of OAE/OAS convictions. Wis. Stat. § 351.09; 1997 Wis. Act 84, §§ 149, 151. In February 1999, the Department rescinded Hanson's HTO status, which was based on his OAR/OAS convictions, pursuant to Wis. Stat. § 351.09.

¶ 7. Subsequent to the rescission of his HTO status, in May 1999, the defendant entered a plea of no contest to the charge of OAR, fifth offense, as an HTO, as alleged in the criminal complaint. During the plea colloquy, Hanson admitted that the OAR offense was his fifth offense and that as a result the court could impose a sentence of up to one year in jail. Hanson also admitted that he had been adjudged an HTO in December 1996 and that as a consequence of his HTO status the court could impose an additional 180 days in jail. Thereafter, the circuit court accepted his plea of no contest, imposed a fine of $300, and sentenced Hanson to 20 days in jail. In rendering the sentence, the circuit court did not articulate whether the OAR offense, the HTO enhancer, or both, provided the basis for the criminal penalty.

¶ 8. Thereafter, Hanson pursued a post-conviction motion challenging the imposition of a term of imprisonment and requesting that the circuit court substitute the criminal sentence with a civil forfeiture. His argument was premised on the February 1999 rescission of his HTO status. Hanson argued that because his HTO status had been rescinded, it could not be the basis for the imposition of a criminal sentence. He further advanced that in the absence of the HTO enhancer, there was no basis for imposing a criminal sentence.

¶ 9. The circuit court denied Hanson's motion, and Hanson appealed. In an unpublished decision, the court of appeals concluded that Hanson had waived the right to challenge his conviction and sentence by the entry of his no contest plea.

hH HH

¶ 10. In order to adequately address the parties' arguments, we believe a brief introduction to the recent legislative changes and relevant statutory scheme is necessary.

¶ 11. In 1997, the Wisconsin legislature enacted sweeping changes to the treatment of the motor vehicle offenses of operating after suspension (OAS) and operating after revocation (OAR). These changes were made in response to the recommendations of the 1995 Governor's Task Force on Operating After Revocation and Operating While Intoxicated and reflect an intent to simplify the previously confusing and complicated law of OAR and OAS.

¶ 12. Prior to August 1,2000, the effective date of many of the relevant provisions of 1997 Wis. Act 84, operating after revocation and operating after suspension were treated as one offense (OAR/OAS). See Wis. Stat. § 343.44(1). The punishment upon conviction was dependent upon the underlying basis for the revocation or suspension and the number of prior OAR/OAS convictions. See Wis. Stat. § 343.44(2). A driver who violated a suspension or revocation imposed solely for failure to pay a fine or forfeiture was subject only to a civil forfeiture. See, e.g., Wis. Stat. § 343.44(2)(e)2. The amount of that forfeiture increased with each successive OAR/OAS conviction. A driver whose privileges were suspended or revoked for any other reason was subject to a civil forfeiture for the first offense of OAR/OAS, but faced potential imprisonment for all subsequent offenses. See Wis. Stat. § 343.44(2).

¶ 13. Currently, as a result of the 1997 legislation, the offenses of OAS and OAR are individual offenses. See Wis. Stat. § 343.44(1)(a) & (b) (1999-2000). The legislature has provided that revocation of driving privileges is to occur for more serious violations. See generally Wis. Stat. § 343.30 (1999-2000). Consequently, OAR is treated as a criminal offense, the violation of which carries the potential for imprisonment. Wis. Stat. § 343.44(2)(b) (1999-2000). Suspensions, on the other hand, are now reserved for more minor infractions. See generally Wis. Stat. § 343.30 (1999-2000). Thus, OAS is treated as a less serious violation, for which the only penalty is a civil forfeiture. Wis. Stat. § 343.44(2)(a) (1999-2000).

¶ 14. 1997 Wis. Act 84 also made changes to chapter 351, which defines and regulates habitual traffic offenders. 1997 Wis. Act 84, §§ 149-52. Under the prior statutory scheme, a person who had been convicted of four OAR/OAS offenses was classified as an HTO pursuant to Wis. Stat. § 351.02(1)(a)4 (1995-96). Classification as an HTO subjects the driver to a five-year revocation and also serves as a penalty enhancer for subsequent violations of § 343.44. Wis. Stat. § 351.025 & § 351.08. A driver classified as an HTO who is convicted of violating § 343.44 is subject to an additional fine of up to $5,000 and an additional term of imprisonment of up to 180 days in jail. Wis. Stat. § 351.08.

¶ 15. Consistent with the legislative intent to decriminalize OAS, 1997 Wis. Act 84 amended chapter 351 to alleviate the effect of prior OAR/O AS convictions on repeat offenders who had been classified as HTOs as a result of those convictions. It did so by removing OAR/O AS from the list of offenses that may serve as the basis for determining HTO status. 1997 Wis. Act 84, § 149.

¶ 16. Most important for our purposes, the legislature also provided for the recalculation of HTO status of those drivers already determined to be HTOs because of OAR/OAS convictions through the creation of Wis. Stat. § 351.09. Under § 351.09, a driver can request that the Department recalculate a previous HTO determination without consideration of OAR/OAS convictions, and may have the HTO status rescinded and driving privileges reinstated, if appropriate:

If the recalculation demonstrates that the person is not a habitual traffic offender or repeat habitual traffic offender, the department shall rescind the order declaring the applicant a habitual traffic offender or repeat habitual traffic offender. Upon the completion of the recalculation under this section, the department shall provide written notice to the person of the result of the recalculation, of the order of rescission, if any, under this section and, if appropriate, of the process for reinstating the person's operating privilege.

Wis. Stat. § 351.09.

¶ 17. When it enacted 1997 Wis. Act 84, the legislature assigned to the Department the authority to determine the effective dates of the various provisions of the act. Wis. Stat. § 85.515. Many provisions, including the revisions to § 343.44, did not become effective until August 1, 2000. Wis. Admin. Reg. No. 534, 24-25 (June 2000). However, the Department implemented § 351.09 on an earlier date, allowing the recalculation and rescission of HTO determinations to begin on August 1,1998. Note, Wis. Stat. § 351.09; Wis. Admin. Reg. No. 510, 51-52 (June 1998).

¶ 18. As a consequence of the staggered implementation of 1997 Wis. Act 84, the case before us presents us with a blend of the old and the new. Hanson was convicted under the prior statutory scheme. Therefore, the definition of the offense and the appropriate level of punishment are defined by since-supplanted statutory provisions. However, because of the DOT's early implementation of § 351.09, this case also presents us with issues involving the new statutory scheme, namely the effect of the Department's rescission of Hanson's HTO status on his sentence.

III

¶ 19. At the outset, the State contends that we should not reach the merits of Hanson's challenge. It argues that Hanson waived the challenge to the sentence by entering a plea of no contest. We disagree.

¶ 20. Hanson contests the imposition of criminal penalties by the circuit court on the grounds that the sentence imposed by the circuit court is a penalty in excess of that authorized by law. As such, his argument implicates the command of Wis. Stat. § 973.13:

Excessive sentence, errors cured. In any case where the court imposes a maximum penalty in excess of that authorized by law, such excess shall be void and the sentence shall be valid only to the extent of the maximum term authorized by statute and shall stand commuted without further proceedings.

Wis. Stat. § 973.13. "When a court imposes a sentence greater than that authorized by law, § 973.13 voids the excess." State v. Spaeth, 206 Wis. 2d 135, 155, 556 N.W.2d 728 (1996) (applying § 973.13 to sentence imposed upon conviction for OAR). If the rescission of Hanson’s HTO status precluded the use of the Wis. Stat. § 351.08 penalty enhancer and if the defendant was not otherwise subject to criminal penalties, the imposition of a criminal sentence would be void as it is in excess of that authorized by law.

¶ 21. Section 973.13 requires Wisconsin courts to declare a sentence void ”[i]n any case where the court imposes a maximum penalty in excess of that authorized by law." § 973.13 (emphasis added). In an analogous context, our court of appeals concluded that the command of § 973.13 allowed a defendant to challenge a faulty repeater sentence despite the existence of an otherwise effective procedural bar. State v. Flowers, 221 Wis. 2d 20, 22-23, 586 N.W.2d 175 (Ct. App. 1998). In explaining that the mandate of § 973.13 prevents the imposition of a sentence not authorized by the legislature, the court of appeals advanced the interest of justice over the interest of finality:

To adopt the State's argument would promote finality, but at the expense of justice. It would raise the specter of a defendant being incarcerated for a term (possibly years) in excess of that prescribed by law simply because he or she failed to raise the issue earlier. Such a result is in direct conflict with the explicit language of § 973.13. The State is without authority to incarcerate individuals for a term longer than the maximum term authorized by law. Therefore, we conclude that the express statutory mandate in § 973.13 to alleviate all maximum penalties imposed in excess of that prescribed by law applies to faulty repeater sentences and is not "trumped" by a procedural rule of exclusion.

Id. at 29.

¶ 22. As in Flowers, to allow the imposition of a criminal penalty where none is authorized by the legislature, simply on the basis of waiver, would ignore the dictate of § 973.13. We thus reach the merits of Hanson's challenge and determine whether any basis existed for the imposition of a criminal sentence.

A

¶ 23. Hanson challenges the imposition of a criminal sentence for his conviction. He maintains that the sole basis for the criminal sentence was his HTO status and that because his HTO status was rescinded pursuant to § 351.09, the circuit court should have imposed a .civil forfeiture rather than a criminal sentence.

¶ 24. The resolution of this challenge hinges on the interpretation of Wis. Stat. § 351.09, and in particular the words "rescind" and "rescission" as they are used in that statute. Interpretation’of a statute is a question of law that we review independently of the determinations rendered by the circuit court and the court of appeals. State v. Floyd, 2000 WI 14, ¶ 11, 232 Wis. 2d 767, 606 N.W.2d 155. The sole purpose of statutory interpretation is to ascertain the intent of the legislature by first examining the language of the statute. State v. Vennemann, 180 Wis. 2d 81, 93, 508 N.W.2d 404 (1993).

¶ 25. Hanson argues that the effect of the Department's rescission of his HTO status was to nullify and, in essence, void ab initio, his HTO classification, thus precluding the applicability of the § 351.08 HTO penalty enhancer. The State argues the rescission under § 351.09 does not relate back to the date of the offense, October 31,1998, and because Hanson was an HTO on the date he committed the offense, he was properly sentenced.

¶ 26. We conclude that as a consequence of the rescission of Hanson's HTO status, he could not be subject to the HTO penalty enhancer when subsequently convicted of a violation of § 343.44(1). Accordingly, it was beyond the power of the circuit court to impose a criminal sentence based solely upon Hanson's rescinded HTO status. We base this conclusion on the ordinary and accepted meaning of the words "rescind" and "rescission," the legal implications of those words, and the legislative history of Wis. Stat. § 351.09.

¶ 27. We begin with the language of the statute. Wisconsin Stat. § 351.09 directs that when recalculating a defendant's HTO status "[i]f the recalculation demonstrates that the person is not a habitual traffic offender or repeat habitual traffic offender, the department shall rescind the order declaring the applicant a habitual traffic offender." Wis. Stat. § 351.09 (emphasis added). The statute also refers to the order entered upon such a recalculation as an "order of rescission." Id. (emphasis added).

¶ 28. When interpreting a statute, we must give effect to the ordinary and accepted meaning of the language chosen by the legislature. Wis. Stat. § 990.01(1) (1999-2000); Seider v. O'Connell, 2000 WI 76, ¶ 32, 236 Wis. 2d 211, 612 N.W.2d 659. We thus attribute to the operative words of § 351.09, "rescind" and "rescission," their ordinary and accepted meaning.

¶ 29. To "rescind" is commonly understood, when used by lawyers and non-lawyers alike, to mean "[t]o abrogate or cancel" or "[t]o make void, to repeal or annul." Black's Law Dictionary 1308 (7th ed. 1999); see The American Heritage Dictionary of the English Language 1534 (3d ed. 1993) ("To make void, repeal or annul."). "Rescission" too shares a likeness of meaning in both legal and non-legal contexts, and generally refers to the annulment or abrogation of something, i.e., the act of rescinding. The American Heritage Dictionary of the English Language 1534 (3d ed. 1993).

¶ 30. This court visited the meaning of the words "rescind" and "rescission" on a prior occasion, concluding that as a matter of general usage the terms relate to abrogation or annulment:

" 'Rescind' and 'rescission' are words in ordinary use and should have no different signification in legal terminology than they have in other connections. 'Rescind' means to abrogate or annul, and may be applied to a variety of transactions such as a vote, a transfer of property or a contract."

Illges v. Congdon, 248 Wis. 85, 95b, 20 N.W.2d 722 (1945) (quoted source omitted).

¶ 31. The words "rescind" and "rescission" also carry certain legal implications, which are consistent with their ordinary and accepted meaning. The legal effect of a rescission is an undoing from the beginning and a return to status quo ante. This legal effect of a rescission is expressed most clearly in the realm of contract law:

The effect of a rescission of a contract is to restore the parties to the position they would have occupied had no contract ever been made. In other words, when a contract is rescinded the parties are placed in the status quo as if no contract had ever been made.

Schnuth v. Harrison, 44 Wis. 2d 326, 339, 171 N.W.2d 370 (1969) (footnote omitted); see also Wagner v. Wagner, 80 Wis. 2d 299, 302, 259 N.W.2d 60 (1977) ("[T]he right of rescission. . .will undo the mischief ab initio and restore the parties, substantially to their original situation."). The notion that rescission amounts to an undoing ab initio has been acknowledged more recently by this court:

The parties have used the words "rescission ab ini-tio" and "rescission" interchangeably. Because we can find no difference in the meaning of either expression, we have done the same.

Wisconsin Housing & Econ. Dev. Auth. v. Verex Assurance, Inc., 166 Wis. 2d 636, 643 n.2, 480 N.W.2d 490 (1992).

¶ 32. Given the accepted meaning of the language of § 351.09 and the legal effect attributable to "rescind" and "rescission," we conclude that the effect of the Department's recalculation of Hanson's HTO status was an annulment and abrogation of that status from the outset of its existence. Consequently, when the circuit court sentenced Hanson, it could not properly treat him as an HTO, or for that matter as if he ever were an HTO. Hanson's rescinded HTO status can have no legal effect and Hanson must be treated as if it never existed.

¶ 33. The ordinary and accepted meanings of the language of § 351.09 and the legal implications given to those words are supported by the legislative history of Wis. Stat. § 351.09. As we explained above, § 351.09 was created by 1997 Wis. Act 84, which enacted the recommendations of the 1995 Governor's Task Force. See 1997 S.B. 470 (containing analysis of the Legislative Reference Bureau); 1997 A.B. 795. The task force’s initial recommendation called for "Amnesty/Recalculation of HTO Status":

Amnesty/Recalculation of HTO Status (Non-statutory provisions)
The department shall review its orders revoking persons' operating privileges as habitual traffic offenders. If the department concludes that a person's operating privilege would not have been revoked and would not be revoked as a habitual traffic offender or repeat habitual traffic offender if offenses were counted in accordance with the provisions of Ch. 351, Stats., as amended by this law rather than the law in effect at the time of the prior order, the department shall recind [sic] the order.

Legislative Reference Bureau Drafting File for 1997 A.B. 795, Recommendations of Governor's Task Force on OAR/OWI (Oct. 24, 1995). This recommendation was subsequently adopted by the legislature, albeit in modified form, and codified as § 351.09.

¶ 34. We find significant the use of the word "amnesty" by the Governor's Task Force in making its recommendation. It signifies to us that the Task Force intended broad relief to those who had been classified as an HTO as a consequence of the convictions for OAR/OAS, an offense believed by the Task Force to be a "minor offense." Id. We believe that this evidence of an intent to provide expansive relief to those determined to be HTOs as a consequence of OAR/OAS convictions supports our interpretation of the ordinary and accepted meaning of "rescind" and "rescission" as those terms are used in § 351.09 and the legal effect attributable to those terms.

¶ 35. Contrary to the conclusions we draw from our above language and legislative intent analysis, the State advances that our prior decision in State v. Orethun, 84 Wis. 2d 487, 267 N.W.2d 318 (1978), should control. In Orethun, the defendant, after being charged with operating after revocation, obtained a vacation of a speeding conviction on which the revocation of his driving privileges was based. Consequently, the defendant argued that a statutory provision calling for "automatic reinstatement" of his driving privileges related back to the date of his OAR/OAS offense. We disagreed, concluding that the reinstatement did not apply retroactively and that he was properly convicted of operating a vehicle while his license was revoked on the date of the offense. Id. at 489.

¶ 36. The State maintains that the reasoning of Orethun should apply to Hanson's HTO status, which was not undone until after he committed the OAR offense. We do not find Orethun controlling in the instant case for the simple reason that Orethun relied upon and interpreted a different statute. Section 351.09, unlike the statute discussed in Orethun, calls for a "rescission" of Hanson's HTO status. As we have explained, today's decision rests upon the operation of "rescind" and "rescission" in § 351.09.

¶37. The State also attempts to draw distinctions between the automatic reinstatement of driving privileges in Orethun and the affirmative steps required of a driver whose HTO status has been rescinded to obtain reinstatement of their driving privileges under § 351.09. We do not see how this is relevant to the discussion of the rescission of Hanson's HTO status and its use as a penalty enhancer. This case is not about the reinstatement of Hanson's driving privileges. This case concerns only the impact of the rescission of his HTO status on the appropriate penalty to be meted out for liis OAR conviction.

¶ 38. As a consequence of the rescission of Hanson's HTO status, we conclude that the circuit court could not properly impose a criminal penalty based solely upon that status. The imposition of a criminal penalty based solely upon that status would be in excess of that authorized by the legislature and must be declared void pursuant to Wis. Stat. § 971.13.

B

¶ 39. Having concluded that the circuit court could not properly impose a criminal penalty based on Hanson's rescinded HTO status, we must address whether Hanson was otherwise subject to a criminal penalty for his conviction. Hanson was convicted under the prior statutory scheme. Section 343.44 formerly distinguished between OAR/OAS convictions that arose solely out of suspensions or revocations for failure to pay a fine or forfeiture, and those that did not. Convictions that arise out of suspensions or revocations for the failure to pay a fine or forfeiture are subject only to civil penalties, whereas other convictions for OAR/OAS, fifth offense, are subject to criminal penalties. See Wis. Stat. § 343.44(2)(e). If the circuit court had concluded that Hanson's conviction had not arisen solely from suspensions or revocations for failure to pay a fine or forfeiture, the court could have sentenced Hanson to up to one year in jail, even if he was not an HTO. See Wis. Stat. § 343.44(2)(e)1.

¶ 40. The court of appeals noted in this case that the parties failed to discuss whether Hanson's driving record supported a criminal conviction, even absent consideration of Hanson’s HTO status. In their briefs to this court, the parties have referenced whether such an alternative basis for a criminal sentence exists. However, they have each taken seemingly inconsistent positions which do not assist us in deciphering the record and applying the law.

¶ 41. The State advanced in its brief that regardless of the HTO penalty enhancer, Hanson was subject to a criminal penalty for his conviction under Wis. Stat. § 343.44(2)(e)1 because suspensions or revocations in effect at the time of his fifth offense were not imposed solely for the failure to pay a fine or forfeiture. At oral argument, however, the State made no argument regarding this alternative basis for imposing a criminal penalty in the present case, which, if it exists, would carry the day.

¶ 42. The dissent advances that Hanson's failure to reinstate an April 1996 suspension provides a basis for a criminal sentence. That result is directly contrary to the court of appeals decision in State v. Muniz, 181 Wis. 2d 928, 512 N.W.2d 252 (Ct. App. 1994). In Muniz, the court of appeals addressed the very situation the dissent describes and concluded that the failure to reinstate following a suspension based on grounds other than the failure to pay a fine or forfeiture cannot serve as the basis to criminalize subsequent OAK/OAS violations. Id. at 932-33.

¶ 43. The Muniz court rested its decision on the interpretation of the clause that recurs in § 343.44 that states that the civil penalties apply" 'regardless of the person's failure to reinstate his or her operating privilege.' " Id. at 930-31 (quoting Wis. Stat. § 343.44(2)(b)2). While the dissent relies on another court of appeals case, State v. Biljan, 177 Wis. 2d 14, 501 N.W.2d 820 (Ct. App. 1993), which seems to interpret the same provision to reach a contrary result, the question of law the dissent resolves on its own accord has not been briefed by the parties. Accordingly, we decline to reach out and resolve the question.

¶ 44. Hanson himself puts forth arguments that would suggest that not all-of his prior OAR/OAS convictions were based solely upon the failure to pay a fine or forfeiture. Hanson's brief states that his "driving privileges were suspended for point accumulation and failure to pay fines." Yet, at the same time Hanson argues that in the absence of the HTO enhancer, no criminal penalty is applicable.

¶ 45. We also note that the circuit court did not delineate whether the suspensions that were in effect on October 31,1998, arose solely from the failure to pay a fine or forfeiture. Because we are unable to do so, we must remand to the circuit court so that the parties may clarify their positions and the circuit court may make a proper determination as to whether a civil or criminal penalty is appropriate. In doing so, it is to determine whether Hanson's conviction falls under § 343.44(2)(e)2, in which case only a civil forfeiture may be imposed, or whether § 343.44(2)(e)l applies and allows for the imposition of a criminal sentence.

¶ 46. In closing we note that the difficulties faced in this case are a consequence of the prior statutory scheme, which the 1995 Governor's Task Force described as "overly complex" and a source of confusion "among law enforcement, DAs, attorneys, public defenders and the courts." Governor's Task Force on Operating After Revocation and Operating While Intoxicated, Summary of Proceedings (Oct. 1995). Fortunately, as a consequence of the legislative overhaul embodied by 1997 Wis. Act 84 and the streamlining and simplification of the law of OAR and OAS, these are problems that our courts will no longer be asked to address.

IV

¶ 47. In conclusion, we have determined that the imposition of a criminal penalty based solely upon Hanson's HTO status, which was rescinded under Wis. Stat. § 351.09 prior to his conviction, is a sentence in excess of that authorized by law. If there is no additional basis for the imposition of a criminal sentence, the criminal penalty is a sentence in excess of that authorized by law and is invalid under Wis. Stat. § 971.13. Because of the state of the record, however, we are unable to determine whether such additional basis exists. We thus must remand this case to the circuit court for a determination of the appropriate penalty under § 343.44(2)(e). Accordingly, the decision of the court of appeals is reversed and the case is remanded to the circuit court for further proceedings consistent with this opinion.

By the Court. — The decision of the court of appeals is reversed and the cause is remanded to the circuit court.

N. PATRICK CROOKS, J.

¶ 48. (dissenting). I cannot join the majority opinion because it abandons a long-standing rule of Wisconsin law — that a plea of no contest waives all non-jurisdictional challenges. The majority does not provide a valid legal reason for its failure to apply the waiver rule. The majority opinion also ignores clear information in the record when it reaches the conclusion that a remand is necessary.

¶ 49. It is a well-established principle that a plea of no contest or guilty waives all non-jurisdictional defenses and defects. State v. Bangert, 131 Wis. 2d 246, 293, 389 N.W.2d 12 (1986); State v. Damaske, 212 Wis. 2d 169, 188, 567 N.W.2d 905 (Ct. App. 1997). Wisconsin courts have recognized the waiver rule for a long time. See State v. Princess Cinema of Milwaukee, Inc., 96 Wis. 2d 646, 651, 292 N.W.2d 807 (1980); Hawkins v. State, 26 Wis. 2d 443, 448, 132 N.W.2d 545 (1965).

¶ 50. In this case, Hanson pled no contest to the charge of operating after revocation/suspension (OAR/OAS) (Plea Hr'g at 9), and, therefore, he waived all non-jurisdictional defenses or defects. In his post-conviction motion, Hanson claimed that the circuit court could not impose criminal penalties for the OAR/OAS charge because the Wisconsin Department of Transportation, Division of Motor Vehicles, rescinded his status as a HTO. This challenge is not a jurisdictional one. Consequently, Hanson waived such a defense or defect when he pled no contest to the criminal OAR/OAS charge.

¶ 51. The majority opinion avoids the waiver rule, by holding that Wis. Stat. § 973.13 demands that we address Hanson's challenge to the criminal penalties. Majority op. at ¶ 22. Wisconsin Stat. § 973.13 provides that "[i]n any case where the court imposes a maximum penalty in excess of that authorized by law, such excess shall be void and the sentence shall be valid only to the extent of the maximum term authorized by statute and shall stand commuted without further proceedings." According to the majority opinion, Hanson's criminal sentence could be void under § 973.13, if the rescission of Hanson's status as a HTO prevented the application of the penalty enhancer.

¶ 52. The fatal flaw in the majority opinion is that there is no legal justification for departing from the well-established waiver rule. The majority opinion relies upon State v. Flowers, 221 Wis. 2d 20, 586 N.W.2d 175 (Ct. App. 1998) to support its holding. Flowers presents an entirely different fact situation, one that makes its holding inapplicable to this case.

¶ 53. In Flowers, the defendant claimed that his criminal sentence was void as a matter of law. 221 Wis. 2d at 26. The State charged the defendant, flowers, with two counts of retail theft, as party to a crime, in violation of Wis. Stat. §§ 943.50(lm) and 939.05, for stealing various items from a food store. Id. at 23. In addition, the State charged Flowers as a repeat offender, pursuant to Wis. Stat. § 939.62, because he was previously convicted of felony firearm possession. Id. Flowers pled guilty to one count of retail theft as a repeat offender, but Flowers never admitted to the prior felony conviction, nor did the State enter sufficient evidence of such conviction. Id. In a post-conviction motion, Flowers claimed that his sentence as a repeater was void as a matter of law, because the State failed to establish his repeater status, and it was undisputed that he did not admit to a prior felony conviction within five years. Id. at 24-25. The circuit court denied Flowers' motion and Flowers appealed. Id. at 25.

¶ 54. The court of appeals concluded that Wis. Stat. § 973.13 permitted Flowers to challenge his sentence as a repeater, despite the effective procedural bar of Wis. Stat. § 974.06(4), which provides that a defendant must raise all grounds for relief in the original, supplemental, or amended post-conviction motion. Id. at 28. The court of appeals determined that the policy articulated in State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), did not prevent Flowers from challenging his criminal sentence. Id. at 28.

¶ 55. Here the majority opinion is overlooking a critical limitation on the Flowers holding, namely, that "if a defendant is sentenced. . .and the State has either failed to prove the prior conviction or gain the defendant's admission to such fact, then § 973.13 becomes applicable." Id. (emphasis added).

¶ 56. At the plea hearing in this case, Hanson admitted he had previously been found to be a habitual traffic offender, and to his prior convictions for OAB/OAS. The circuit court judge specifically asked Hanson if he admitted to four prior convictions, and that he had been adjudged a habitual traffic offender. (Plea Hr'g at 9-10). Hanson responded "yes" to these questions. (Plea Hr'g at 10). Flowers is, therefore, clearly distinguishable and, as a result, the majority opinion provides no legal justification for departing from the long-standing rule that a plea of no contest waives all non-jurisdictional defenses and defects.

¶ 57. Because the majority opinion concludes that Wis. Stat. § 973.13 permits Hanson to challenge his sentence, the majority opinion does not address Hanson's claim that the circuit court did not have jurisdiction over his case. Majority op. at ¶ 20, n.5. Hanson contends that the circuit court lacked criminal subject matter jurisdiction over his criminal case "because his status as a habitual traffic offender was rescinded, and therefore, the offense with which he was charged was not a crime." (Br. of Def.-Appellant-Pet'r at 17). Therefore, Hanson argues that an exception to the waiver rule applies.

¶ 58. I reject this claim, as the court of appeals did, when it relied on Article VII, Section 8 of the Wisconsin Constitution which confers original jurisdiction on the circuit court for all matters civil and criminal within Wisconsin. In State v. Aniton, 183 Wis. 2d 125, 129, 515 N.W.2d 302 (Ct. App. 1994), it was stated that: "[t]he circuit court lacks criminal subject-matter jurisdiction only where the complaint does not charge an offense known to law." See also State v. Bratrud, 204 Wis. 2d 445, 450, 555 N.W.2d 663 (Ct. App. 1996)("vari-ous facts relevant to a defendant's conviction are admitted when a plea is taken").

¶ 59. It is important to note what the record in this case clearly establishes. Attached to the criminal complaint is a teletype which shows that on April 12, 1996, Hanson was suspended for two months. There is nothing in the record to show that Hanson had been reinstated by the time of this offense on October 31, 1998, nor does Hanson claim that he had been reinstated by that date.

¶ 60. The two-month suspension was a result of convictions for violation of license restriction (VOR), and that suspension served as the basis for three operating after suspension (OAS or OWS) charges that occurred on May 6 and May 29, 1996. These charges resulted in two convictions for operating after suspension (or while suspended) in Waupaca County on August 27, 1996, and in Outagamie County on July 3, 1996.

¶ 61. Wisconsin Stat. § 343.44(2)(b)2 states that if a revocation or suspension which forms the basis of a violation was imposed solely due to a failure to pay a fine or forfeiture then a forfeiture (rather than a crime) results. However, here it is clear that at least one of Hanson's suspensions that formed the basis for the criminal charge of OAR/OAS was predicated not on failure to pay a fine or forfeiture, but on a suspension resulting from convictions for violation of license restriction (VOR). Due to that fact, his lack of reinstatement, and his failure to apply for rescission of his HTO status prior to the offense, his violation on October 31, 1998, was a criminal offense and criminal sanctions could be imposed. See State v. Biljan, 177 Wis. 2d 14, 21-22, 501 N.W.2d 820 (Ct. App. 1993), and State v. Doyen, 185 Wis. 2d 635, 642-43, 518 N.W.2d 321 (Ct. App. 1994).

¶ 62. The majority opinion claims that this conclusion is contrary to the holding in State v. Muniz, 181 Wis. 2d 928, 512 N.W.2d 252 (Ct. App. 1994). Majority op. at ¶ 42. In Muniz, the defendant, Muniz, appealed the sentence that resulted from a conviction of second offense OAR/OAS, in violation of Wis. Stat. § 343.44(1). 181 Wis. 2d at 930. Muniz argued that the imposition of criminal penalties under Wis. Stat. § 343.44(2)(b)l was improper because the suspension that formed the basis for the OAR/OAS charge was for failure to pay a forfeiture. Id. The court of appeals agreed, stating that "[bjecause we conclude that the only suspension in effect at the time of the current violation was imposed solely for failure to pay a forfeiture, even though Muniz failed to reinstate his operating privileges after another suspension period had expired, Muniz should have been sentenced under § 343:44(2)(b)2." Id. (emphasis added).

¶ 63. After Muniz, the court of appeals decided the case of State v. Doyen, 185 Wis. 2d 635, 518 N.W.2d 321 (Ct. App. 1994). In Doyen, a group of five defendants claimed that they were not subject to the mandatory minimum (criminal) penalties under Wis. Stat. § 343.44(2g) for their OAR/OAS violations because their suspensions for operating a motor vehicle while intoxicated (OWI) had expired by the time each committed the OAR/OAS offense. 185 Wis. 2d at 638. The court of appeals rejected that claim, concluding that the phrase "[n]o person whose operating privilege has been duly revoked or suspended pursuant to the laws of this state shall operate a motor vehicle upon any highway in this state during such suspension or revocation or thereafter . . ." in Wis. Stat. § 343.44(1) meant that a suspension or revocation is not limited to the initial court-ordered period of suspension or revocation for the specific offense. Id. at 641. With respect to four of the defendants' suspensions for OWI, the phrase "or thereafter" meant that the suspensions continued until they complied with an alcohol assessment order. Id. at 642. With respect to the fifth defendant, classified as an HTO, the phrase "or thereafter" meant that the defendant's suspension for OWI continued because the OWI conviction, in conjunction with other convictions, established her as an HTO and led to the revocation of her license. The court also noted that the operating privilege after an OWI conviction is not "automatically reinstated after the lapse of a specific time period." Id. at 642-43.

¶ 64. The result in Doyen is consistent with the court of appeals decision in State v. Kniess, 178 Wis. 2d 451, 504 N.W.2d 122 (Ct. App. 1993). In that case, the defendant, Kniess, claimed that the State could not impose criminal penalties for his sixth offense of OAR/OAS, because the revocation that was the basis for tiie charge was only for a failure to pay a fine or forfeiture. State v. Kniess, 178 Wis. 2d 451, 452, 504 N.W.2d 122 (Ct. App. 1993). The court of appeals reiterated the rule from Biljan that criminal penalties are appropriate for an OAR/OAS violation, if the suspension in effect at the time of the OAR/OAS violation was imposed " 'for other than, or in conjunction with, the defendant's failure to pay a fine or forfeiture.'" Id. at 455 (quoting Biljan, 177 Wis. 2d at 20). Because the HTO suspension (actually revocation) was imposed on Kniess for reasons other than the failure to pay a fine or forfeiture, the court of appeals concluded that criminal sanctions were appropriate for his OAR/OAS conviction.

¶ 65. I conclude that the reasoning of Doyen, Kniess, and Biljan, rather than Muniz, which is not applicable, controls the result of the present case. A person such as Hanson, suspended as a result of VOR convictions, is not automatically reinstated. At the time of the offense for OAR/OAS, Hanson had neither been reinstated after the suspension resulting from the VOR convictions, nor had he sought rescission of his HTO status. Therefore, Hanson's suspension resulting from the VOR convictions continued during his revocation as an HTO.

¶ 66. Consequently, consistent with Doyen, Kniess, and Biljan, the civil penalty requirement for a violation of Wis. Stat. § 343.44(1), set forth § 343.44(2)(b)2, is not satisfied in the present case. The suspension that is the basis for Hanson's OAR/OAS violation was not imposed solely for the failure to pay a fine or forfeiture; rather, the suspension resulted from the VOR convictions. In addition, Hanson had not reinstated his driving privileges, nor had he applied for rescission of his HTO status on the date of the offense. Accordingly, criminal sanctions were appropriate for Hanson's OAR/OAS conviction.

¶ 67. While his revocation as an HTO provided yet another basis, when Circuit Judge John P. Hoff-mann convicted Hanson on the record of the offense of OAR/OAS, and when the written Judgment of Conviction and Sentence was entered, no mention was made of Hanson's HTO status. (Plea Hr'g at 11-12 and Record at 10-1).

¶ 68. From a thorough review of the transcript of the plea hearing and of the record, it becomes quite clear, however, that Hanson's conviction and sentence were based on the fact of prior convictions for OAR/OAS within a five-year period, his suspension resulting from the VOR convictions, and his lack of reinstatement. His HTO status on the date of the offense, at a time when he had made no application for rescission, provided an additional factor.

¶ 69. In my opinion, the contention of the majority that a remand is necessary (majority op. at ¶ 43) ignores the record before this court as discussed herein. In addition to what has already been noted, it ignores the concession of Assistant State Public Defender Suzanne C. O'Neill that the charge that Hanson faced was a criminal charge (Plea Hr'g at 11) and further ignores the information provided by the plea questionnaire completed by Hanson and his attorney.

¶ 70. From the face of that document, it is clear that Hanson's HTO status was not expected to play any role at sentencing. Under maximum penalty, there is an entry of "$2500 + 1 Yr Jail." (Record at 8-1). Among other entries initialed with approval by Hanson there were the following: "I am giving up my right to raise any defense I may have to these charges and to have another court review any non-jurisdictional defects in these proceedings. If the judge accepts my plea, I can be found guilty of the criminal charge(s) to which I am pleading." Id.

¶ 71. Thorough review of the entire record makes it clear that the conviction of Hanson under Wis. Stat. § 343.44(1) made him subject to the criminal penalties provided in Wis. Stat. § 343.44(2)(b)-(e). He received a sentence well within the maximum penalties provided by those provisions. Even if his conviction had been for a second, rather than a fifth, conviction within a five-year period, his sentence would have been a valid one within the máximums provided. See Wis. Stat. § 343.44(2)(b)1.

¶ 72. Clearly, Wis. Stat. § 973.13 has no applicability under such circumstances. The circuit court had criminal subject-matter jurisdiction over Hanson, and, in addition, he waived all non-jurisdiction defects and defenses by entry of his plea of no contest. The circuit court did not impose "a maximum penalty in excess of that authorized by law." Wis. Stat. § 973.13.

¶ 73. Contrary to the statement of the majority opinion (majority op. at ¶ 43), the State did argue, both in its brief and during oral argument, that criminal penalties for a violation of Wis. Stat. § 343.44 are appropriate, when the suspension or revocation in effect at the time of the OAR/OAS offense is based on grounds other than the failure to pay a fine or forfeiture, relying on State v. Kniess, 178 Wis. 2d 451, 504 N.W.2d 122 (Ct. App. 1993). (State's Br. at 14-15). The State claimed that Hanson admitted that the predicate suspensions to the OAR/OAS charge were not based solely on the failure to pay a fine or forfeiture. Id. In addition, the State noted that Hanson was suspended in April, 1996, for VOR. Id. at 15. The State claimed that this suspension established that a portion of the predicate suspensions to the OAR/OAS offense were not imposed solely for failure to pay a fine or forfeiture. Id. The State argued that, as a result, Hanson was subject to a criminal penalty, regardless of the HTO penalty enhancer. Id.

¶ 74. This case was correctly decided based on the record, the Wisconsin Constitution, the case law on subject-matter jurisdiction, and the waiver doctrine. I would, therefore, affirm the decision of the court of appeals, and, therefore the conviction of Hanson for OAR/OAS, since it is clear that his violation on October 31,1998, was a criminal offense, and, therefore, criminal sanctions could be, and were, properly imposed.

¶ 75. For the foregoing reasons, I respectfully dissent.

¶ 76. I am authorized to state that Justice JON P. WILCOX and Justice DAVID T. PROSSER join this dissent.

        State v. Hanson, No. 99-3142-CR, unpublished slip opinion (Wis. Ct. App. June 8, 2000) (affirming judgment of conviction and order denying a motion for post-conviction relief entered in the Circuit Court for Waupaca County, John P. Hoffman, Judge).

       Unless otherwise noted, all subsequent statutory references to the Wisconsin Statutes are to the 1997-98 version.

       In its brief to this court, the State argued that there was nothing in the record documenting the Department's rescission of Hanson's HTO status. However, at oral argument the State acknowledged that a reference to the "release" of Hanson's HTO status in the abstract of Hanson's driving record signified the rescission of the HTO status pursuant to Wis. Stat. § 351.09.

       A brief synopsis of the statutory changes and their effective dates is provided by John Sobotik, OAR and OWS Law Changes Begin, Wis. Law., Feb. 2000, at 24-25. The author is assistant general counsel for the Wisconsin Department of Transportation and prepared the findings of the 1995 Governor's Task Force relating to OAR and OAS.

        The changes to Wis. Stat. § 343.44 were effective August 1, 2000 pursuant to an order of the Department of Transportation. Wis. Admin. Reg. No. 534, 24-25 (June 2000).

       Hanson also frames his challenge as an attack on the subject matter jurisdiction of the circuit court. However, because we find his challenge to the legality of the sentence dispositive, we need not address his jurisdictional challenge.

       The procedural bar faced by the defendant in State v. Flowers, 221 Wis. 2d 20, 586 N.W.2d 175 (Ct. App. 1998), was that posed by Wis. Stat. § 974.06(4) and this court's decision in State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994).

       The State directs us to one case in which the word "rescind" was construed merely as a cancellation with only prospective application. Milwaukee Elec. Ry. & Light Co. v. Railroad Comm'n, 169 Wis. 421, 427-28, 172 N.W. 746 (1919). In Milwaukee Electric Railway, this court concluded that the Railroad's rescission of a prior order, pursuant to statute, did not render the prior order void ab initio, but rather simply terminated the order from that time onward. Id.

      However, the court’s discussion of the meaning of "rescind" in Milwaukee Electric Railway is an anomaly in light of discussions in preceding and subsequent case law, including those in the case law of the period. See, e.g., Mueller v. Michels, 184 Wis. 324, 332, 197 N.W. 201 (1924) (" 'To rescind a contract is not merely to terminate it but to abrogate and undo it from the beginning.'").

       The core of the provisions that became 1997 Wis. Act 84 began in the Wisconsin Assembly as 1997 Assembly Bill 795.

       The primary changes in the recommendation of the 1995 task force were that the provision allowing for rescission of HTO status be a statutory provision and that the rescission be initiated by a request of the driver. See Wis. Stat. § 351.09. These changes were initiated at the request of the Department. See Legislative Reference Bureau Drafting File for 1997 A.B. 795, Memorandum from John Sobotik, Office of General Counsel, Wisconsin Department of Transportation, to Paul Nilsen, Legislative Reference Bureau (July 22,1997).

       The dissent also relies on State v. Doyen, 185 Wis. 2d 635, 518 N.W.2d 321 (Ct. App. 1994), which is not on point. While Doyen speaks to the failure to reinstate following a revocation or suspension, it provides no guidance in interpreting the civil penalties provisions of § 343.44, and particularly the clause appearing in § 343.44(2)(e)2 stating that the civil penalty applies "regardless of the person's failure to reinstate his or her operating privilege." Wis. Stat. § 343.44(2)(e)2. The dissent's reliance on State v. Kniess, 178 Wis. 2d 451, 504 N.W.2d 122 (Ct. App. 1993), is also misguided. Kniess would be controlling only in the event that Hanson's HTO status was valid at the time of his conviction. We have rejected that contention above.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In the Matter of Disciplinary Proceedings Against Donald J. Harman, Attorney at Law. Board of Attorneys Professional Responsibility, Complainant-Respondent, v. Donald J. Harman, , Respondent-Appellant.
    Supreme Court

      No. 99-2862-D.

      Submitted on briefs March 6, 2001.

    Decided June 26, 2001.

    2001 WI 71
    (Also reported pi 628 N.W.2d 351.)

      ATTORNEY disciplinary proceeding. Attorney's license suspended.

    For the respondent-appellant there was a brief by Donald J. Harman.

    For the complainant-respondent there was a brief by William J. Weigel, litigation counsel.
   PER CURIAM.

¶ 1. Attorney Donald J. Harman appealed from the referee's findings of fact, and conclusions of law that he engaged in professional misconduct and recommendation that his license to practice law in Wisconsin be suspended for six months as discipline for that misconduct. The referee's findings and conclusions addressed eight separate counts of professional misconduct set forth in the Board of Attorneys Professional Responsibility (Board) complaint in this proceeding. Three of the counts arose from Attorney Harman's handling of proceeds he received on behalf of a client after settling the client's personal injury claim. The referee determined that Harman had engaged in dishonest conduct; failed to give a third party prompt written notification of his receipt of their funds and failed to promptly deliver those funds to the third party; and failed to continue to treat as trust property, the funds which were in dispute.

¶ 2. The remaining five misconduct counts involved Attorney Harman's conflict of interest in representing a client. The referee determined that Harman had represented the client in the presence of a conflict of interest without obtaining written consent of the client on conflict; revealed information relating to representation of a client without consent; knowingly disobeyed an obligation under the rules of a tribunal; and on two separate occasions, used information obtained during the representation of a former client to that former client's disadvantage.

¶ 3. We adopt the referee's findings of fact and conclusions of law with respect to all eight counts of misconduct as alleged in the Board's complaint. In so doing, we reject Attorney Harman's arguments, including his motion to dismiss the complaint in this disciplinary action on the ground of the referee's alleged conflict of interest and failure to recuse herself as provided in SCR 60.04(4) and (6). We hold that Attorney Harman has waived any objection to the referee's participation in this matter; accordingly, we now deny his motion to dismiss the underlying complaint in this disciplinary matter which has been held in abeyance pending this court's consideration of this appeal. We determine that the license suspension as recommended by the referee is the appropriate disciplinary response to Attorney Harman's numerous acts of professional misconduct. This is the fourth time Attorney Harman has been disciplined for professional misconduct. We agree with the referee's observation that Attorney Harman's pattern of conduct demonstrates a disregard of the legal system and his willingness to ignore established procedures for dispute resolution in favor of his perceived personal expediency. The seriousness of Attorney Harman's professional misconduct warrants the suspension of his license to practice law in this state for six months.

¶ 4. Attorney Donald J. Harman was admitted to practice law in Wisconsin in 1960 and currently practices in La Crosse. He has been disciplined for professional misconduct on three previous occasions.

¶ 5. In 1998 Attorney Harman was publicly reprimanded for his failure to act diligently and promptly in representing his client, his demonstrated lack of understanding of his professional duties, and his unwillingness to take responsibility for his misconduct. Disciplinary Proceedings Against Harman, 221 Wis. 2d 238, 584 N.W.2d 537 (1998).

¶ 6. In 1989 Attorney Harman consented to a public reprimand from the Board of Attorneys Professional Responsibility for having acted in the presence of a conflict of interest, for failing to maintain complete trust account records and render proper accounting of funds held in trust, and failing to cooperate in the Board's investigation.

¶ 7. In 1987 Attorney Harman was publicly reprimanded for having charged one client an excessive fee and for failing to turn over another client's files upon termination of representation despite a court order to do so. Disciplinary Proceedings Against Harman, 137 Wis. 2d 148, 403 N.W.2d 459 (1987).

¶ 8. The Board filed the instant disciplinary complaint against Harman on November 5,1999. Attorney Janet Jenkins of La Crosse was appointed to act as a referee in this matter as she had also been appointed in the prior disciplinary matter against Harman in 1998. In Attorney Harman's answer to this complaint, he admitted many of the factual allegations contained in the complaint but denied the conclusions to be drawn from those allegations. On this appeal, Harman does not explicitly claim that any of the 29 specific findings of fact made by the referee are clearly erroneous; rather, he again disputes the conclusions and recommended discipline.

¶ 9. The Board's allegations of misconduct and the referee's findings deal with two separate matters: the St. Paul check, and Harman's representation of S.W.

THE ST. PAUL CHECK

¶ 10. Attorney Harman was retained to represent D.O. on a personal injury claim stemming from a 1995 automobile accident. D.O. had medical insurance through St. Paul Fire & Marine Insurance Company and its subsidiary, Economy Fire & Casualty Company (collectively, St. Paul). After making payments to D.O.'s health care provider, St. Paul asserted a subrogation claim totaling $3671.10. St. Paul informed Harman of its subrogation claim in three letters which Harman acknowledged receiving. Subsequently D.O.'s personal injury action was settled for $69,000. Metropolitan Insurance, as insurer of the other driver and vehicle, mailed Attorney Harman a check in that amount dated August 18, 1997. That check was made payable to D.O., Attorney Harman, the chiropractor who had treated D.O., and St. Paul Insurance.

¶ 11. Attorney Harman endorsed the $69,000 settlement check on August 22, 1997, and deposited the proceeds in his trust account. Harman's endorsement on the check stated "St. Paul Insurance by Donald Harman, Attorney." Harman, however, had no authorization from St. Paul to endorse that settlement check on its behalf. In his appellate brief, Harman acknowledges that his endorsement was "unauthorized" and made "without. . .authority."

¶ 12. After depositing the funds into his trust account, Harman made several disbursements including to his client, the chiropractor, and to himself for a portion of his fees. Then on September 15, 1997, Harman sent St. Paul a check in the amount of $750 drawn on his trust account. Harman's accompanying letter stated that the check was "in compromise satisfaction of [St. Paul's] lien." At that time Harman's trust account contained sufficient funds from the settlement to have paid the full amount of St. Paul's subrogation claim.

¶ 13. In his September 15th letter to St. Paul, Attorney Harman also stated that if he did not hear from St. Paul within ten days, he would assume that the company agreed that the payment was in "full satisfaction" of its subrogation claim. St. Paul did not respond within the ten-day period Harman had unilaterally set. Then on October 2, 1997, Harman issued a check to D.O. in the amount of $2921.10 representing the difference between the full amount of St. Paul's subrogation claim and the $750 check Harman had previously tendered to the company.

¶ 14. There had been no mutual negotiations or verified settlement agreement between Harman and St. Paul regarding the subrogation claim. In fact, the $750 check with Harman's accompanying letter was the only written notification Harman had provided to St. Paul up to that point regarding his receipt of the settlement monies and the disbursement of the proceeds.

¶ 15. Based on those facts, the referee concluded that the Board had established by clear and satisfactory evidence Attorney Harman's misconduct on the following counts:

Count 1: By endorsing the [D.O.] settlement check on behalf of St. Paul Insurance, without authorization from that company to endorse checks on its behalf, [Harman] engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of SCR 20:8.4(c).
Count 2: By failing, upon receipt of the settlement check from Metropolitan, to notify St. Paul Insurance in writing that he was holding funds for it in trust; and instead, after waiting approximately 30 days, by sending St. Paul a check in the amount of $750, which was not the product of any negotiated reduction of St. Paul's claim, [Harman] failed to give prompt notification to a third person of [Harman's] receipt of funds in which the third person has an interest, and also failed to promptly deliver to a third person funds that the third person was entitled to receive, in violation of SCR 20:1.15(b).
Count 3: By holding funds in trust, portions of which may have belonged to himself, [D.O.] and St. Paul Insurance, and without having resolved any dispute as to the amount St. Paul was entitled to receive, by issuing a check to St. Paul on September 15, 1997, in the amount of $750, [Harman] failed to treat funds as trust property until there was an agreed severance of interest, and [Harman] failed to continue to treat as trust property the portion in dispute, in violation of SCR 20:1.15(d).

¶ 16. We reject Harman's argument on this appeal that by accepting the $750 check and not objecting within the ten-day deadline he had set, St. Paul had "ratified" what would have otherwise been Harman's unauthorized signature when he endorsed the settlement check in the name of St. Paul. Harman's reliance on a provision in the Uniform Commercial Code, Wis. Stat. § 403.403(1) to support that ratification argument is misplaced. Moreover, contrary to Harman's claim, Referee Jenkins did in fact address his ratification argument and found it not only irrelevant but without merit. We agree.

¶ 17. The undisputed evidence established that Harman wrongfully endorsed the check on behalf of St. Paxil without any authorization or prior agreement from St. Paul to do so; in addition he failed to provide St. Paul with prompt written notice of his receipt of funds and then unilaterally disbursed a reduced amount in purported settlement of St. Paul's subrogation claim without St. Paul having agreed to accept a reduced amount. St. Paul's retention of $750 as part payment of its subrogation claim cannot be viewed as a ratification or agreement by St. Paul to accept a reduced amount for its subrogation claim.

¶ 18. We also reject, as irrelevant and without merit, Harman's appellate claim that he had, in fact, called St. Paul's toll free 800 number three times to notify the insurer that he had received the settlement check and therefore the referee should have concluded that the Board had failed to meet its burden with respect to count two. We find this argument — like Harman's ratification argument — to be wholly unpersuasive. Supreme Court Rule 20:1.15(b) mandates prompt written notification to a third person of receipt of funds to which the third person is entitled. Harman's claim that he made telephone calls to St. Paul to report the receipt of the settlement check is not compliance with the rule. Alleged oral notification of receipt of funds does not satisfy the rule. In the instant case, the first written notification Harman provided to St. Paul indicating that he had received the settlement funds was his September 15th letter accompanying the $750 check. This was mailed 24 days after he had endorsed and deposited the settlement check. Neither the alleged telephone calls nor this letter complied with the rule's requirement for prompt written notification.

S.W. REPRESENTATION

¶ 19. In February or March 1998 S.W. met with Attorney Harman concerning a child custody dispute she was having with her former husband. S.W. also consulted Harman about a potential legal malpractice action against an attorney who had represented her in a medical malpractice action in Wood County in 1993. In connection with that potential legal malpractice claim, Attorney Harman obtained S.W.'s case files, which included her medical records, from her former attorney. Those medical records had previously been part of the court file in the Wood County action but had been disposed of by the Wood County clerk in 1995 after that action was dismissed.

¶ 20. At the time S.W. consulted with Attorney Harman, she was living with one E.J. On March 22, 1998, a domestic dispute occurred between E.J. and S.W. which resulted in criminal charges being filed against E.J. E.J. then retained Attorney Harman to represent him on those criminal charges. Attorney Harman appeared on behalf of E.J. at a hearing on March 30, 1998, and in the course of that proceeding, cross-examined S.W. concerning the domestic dispute incident.

¶ 21. In April of 1998 Attorney Harman wrote to the La Crosse County assistant district attorney who was prosecuting the matter against E.J. In that letter, Attorney Harman referred to materials contained in S.W.'s case file in her Wood County medical malpractice claim including her medical records. In that letter, Attorney Harman wrote:

The records I have (which were part of the public record in Wood County) show [S.W.] to have drug and alcohol dependence and a history of self-abusive behavior. I will bring these records with me when we visit about this file.

¶ 22. Attorney Harman then forwarded some of S.W.'s medical records to the La Crosse County prosecutor. S.W. had not authorized him to disclose any of those records.

¶ 23. Subsequently on August 31,1998, Attorney Harman, on S.W.'s behalf, filed a motion seeking a change of physical placement of S.W.'s children. That motion was accompanied by S.W.’s affidavit that Attorney Harman had drafted for her signature. At the time that motion and affidavit were filed, S.W. and E.J. were still living together.

¶ 24. On September 9, 1998, S.W. and E.J. had another domestic altercation in their home, which resulted in criminal charges being filed against both of them. Attorney Harman again represented E.J. S.W. was represented by an assistant state public defender. Under the terms of their respective bonds, S.W. and E.J. were prohibited from having contact with each other.

¶ 25. Despite his knowledge that S.W. and E.J. were subject to the court ordered no contact provision in their bail bonds, Attorney Harman arranged for the two of them to meet in his office on September 23 or 24, 1998, in order to resolve various issues between them. Attorney Harman prepared a statement which both S.W. and E.J. signed; in that statement they agreed that they would not consider that meeting to be a violation of the "no contact" provision of their respective bail bonds in their pending disorderly conduct cases.

¶ 26. On October 13, 1998, S.W. filed a petition seeking a temporary injunction and restraining order against E.J. At the subsequent October 16,1998, hearing on that petition, Attorney Harman again appeared on behalf of E.J. In the course of that hearing, Attorney Harman cross-examined S.W. At the same time, Attorney Harman filed an affidavit asserting that S.W. had a "medical history of self-abusive, self-destructive behavior and Tylenol Codeine abuse...."

¶ 27. The La Crosse County district attorney subsequently filed a motion in E.J.'s criminal case seeking an order to recuse Attorney Harman from representing E.J. on the ground of conflict of interest. That motion was accompanied by an affidavit from S.W. in which she averred that Attorney Harman had requested her cooperation in his criminal defense of E.J. and that Attorney Harman had threatened that if she did not cooperate, she would lose her children and be referred to authorities for possible criminal prosecution on unrelated charges. S.W. further stated in her affidavit that as a result of these threats, she wrote letters to the La Crosse County district attorney accepting full responsibility for the couple's September 9, 1998, altercation which had resulted in disorderly conduct charges being filed against S.W. and E.J.

¶ 28. The day after the district attorney filed the recusal motion, Attorney Harman withdrew as E.J.'s defense counsel. Harman then notified the guardian ad litem in the child custody matter that S.W. had discharged Harman as her counsel; Attorney Harman, however, did not notify the court in which the custody dispute was pending that he was no longer S.W.'s counsel in the custody matter.

¶ 29. A few weeks later, Attorney Harman sent copies of S.W.'s medical records to the district attorney's office, the clerk of court, the public defender's office, the guardian ad litem, and a women's shelter. Harman acknowledged that he released S.W.'s medical records for the specific purpose of undermining her credibility and to keep ". . .[S.W.] from continuing to make false claims against [E.J.]." In releasing these records, Attorney Harman referred to S.W. as being "a liar of world class magnitude" and asserted that she had committed perjury and that she had been a drug and alcohol addict since age nine. S.W. never authorized release of these medical records by Attorney Harman.

¶ 30. Based on those facts, Referee Jenkins concluded that the Board had established by clear and satisfactory evidence the following additional five counts of misconduct by Attorney Harman:

Count 4: By representing [E.J.] in a criminal case stemming from the March 22,1998, incident during the timeframe he was representing [S.W.], [Harman] represented a client when representation of that client may be materially limited by the lawyer's responsibilities to another client, without obtaining written consent from his client, in violation of SCR 20:1.7(b).
Count 5: By his April 1, 1998, disclosure of the content of [S.W.'s] medical records to a prosecutor, [Harman] revealed information relating to representation of a client. . .without her consent, in violation of SCR 20:1.6(a).
Count 6: While knowing that the terms of their respective bonds prohibited contact with the other [Harman] facilitated a meeting between [S.W.] and [E.J.] in [Harman's] office such that [Harman] knowingly disobeyed an obligation under the rules of a tribunal, in violation of SCR 20:3.4(c).
Count 7: In his October 16, 1998, cross-examination of [S.W.] at the hearing on a petition for a temporary injunction and restraining order against [E.J.], [Harman] used information obtained from [S.W.] during his prior representation of her, to her disadvantage, in violation of SCR 20:l.9(b).
Count 8: By his December 1998 distributions of [S.W.'s] medical records, [Harman] used information obtained from a former client during his prior representation of her, to her disadvantage, in violation of SCR 20:1.9(b).

¶ 31. On appeal, Attorney Harman contends that the referee erred in refusing to allow into evidence two documents he claims would have established that S.W.'s medical records that he released were, in fact, public records and therefore S.W. could not claim any privilege with respect to their release. Harman maintains that S.W.'s medical records became public records when filed as part of S.W.'s Wood County medical malpractice action; thus, because the records were not privileged, Harman asserts he could disclose them to others. Furthermore, according to Harman, the referee should have received into this record, the two exhibits he proffered reflecting the docket entries in the Wood County medical malpractice action which Harman asserts would have established that S.W.'s medical records had previously been made public in that action.

¶ 32. We reject this argument because, as the Board correctly argues in its response, it is irrelevant whether S.W.'s medical records were confidential medical records. Supreme Court Rule 20.1.6(a), the disciplinary rule Attorney Harman was charged with violating in Count 5, prohibits revealing or using information relating to a former representation of a client. Moreover, the comment to that rule notes that it is a "fundamental principle" in the client-lawyer relationship that the lawyer maintain confidentiality of "information relating to the representation." The comment explains that the rule of client-lawyer confidentiality applies not only to matters communicated in confidence by the client, ". . .but also to all information relating to the representation whatever its source." S.W. did not authorize Attorney Harman to release her medical records to anyone. His disclosure of information that he obtained while representing S.W. violated client-lawyer confidentiality.

¶ 33. We agree with Referee Jenkins' interpretation of this rule and her conclusion that the information obtained by Attorney Harman from his client, S.W., even if not protected or deemed confidential because it had previously been filed in the Wood County case, could not be disclosed without S.W.'s permission because that information was obtained as a result of the lawyer-client relationship he had with S.W.

¶ 34. Attorney Harman does not dispute that he revealed and used information to S.W.'s disadvantage that he had obtained during the course of his representation of her. Regardless of whether S.W.'s medical records lost their "confidentiality" because they had been made part of the Wood County medical malpractice action, the fact remains that Attorney Harman obtained those records while he was representing S.W. and he then disseminated those records without her consent.

¶ 35. The referee's conclusion that Attorney Harman's actions violated several provisions of the Rules of Professional Conduct for Attorneys, found in chapter 20 of SCR, was based on findings of fact that are not clearly erroneous. The referee's findings of fact and conclusions of law regarding Attorney Harman's professional misconduct established in this proceeding are proper, and we adopt them.

¶ 36. The referee recommended a six-month license suspension as discipline for Attorney Harman's misconduct. We agree that under the totality of the circumstances, a six-month suspension is appropriate discipline for Attorney Harman's misconduct. That six-month suspension will require Attorney Harman to petition this court for reinstatement under SCR 22.28(3).

¶ 37. It Is Ordered that the license of Donald J. Harman to practice law in Wisconsin is suspended for six months commencing August 1, 2001, as discipline for his professional misconduct.

¶ 38. It Is Further Ordered that within 60 days of the date of this order, Donald J. Harman pay to the Office of Lawyer Regulation the costs of this proceeding. If the costs are not paid within the time specified and absent a showing to this court of his inability to pay the costs within that time, the license of Donald J. Harman to practice in Wisconsin shall remain suspended until further order of the court.

¶ 39. It Is Further Ordered that Donald J. Harman comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.

       Effective October 1, 2000, Wisconsin's attorney disciplinary process was substantially restructured. The name of the body responsible for investigating and prosecuting cases involving attorney misconduct was changed from the Board of Attorneys Professional Responsibility to the Office of Lawyer Regulation (OLR) and the Supreme Court rules applicable to the lawyer regulation system were also revised in part. Because the conduct underlying this case arose prior to October 1, 2000, the complainant in this case will be referred to as the "Board" and all references to Supreme Court rules will be to those in effect prior to October 1, 2000.

       SCR 60.04(4)(d) and (6) provide in pertinent part:
      (4) Except as provided in sub. (6) for waiver, a judge shall recuse himself or herself in a proceeding when the facts and circumstances the judge knows or reasonably should know establish one of the following or when reasonable, well-informed persons knowledgeable about judicial ethics standards and the justice system and aware of the facts and circumstances the judge knows or reasonably should know would reasonably question the judge's ability to be impartial:
      (d) The judge knows that he or she, individually or as a fiduciary. . .has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis interest that could be substantially affected by the proceeding.
      (6) A judge required to recuse himself or herself under sub. (4) may disclose on the record the basis of the judge's recusal and may ask the parties and their lawyers to consider, out of the presence of the judge, whether to waive recusal....

       Harman's motion to dismiss was based on the allegation that Attorney Janet Jenkins, who was appointed to serve as referee in this disciplinary matter, had a conflict of interest because:
      (1) Harman, a former member of the predecessor firm to Referee Jenkins' current law firm, retained 500 shares of stock in that former firm, and therefore, he and Referee Jenkins have a "shared pecuniary interest" as shareholders in the same law firm; and
      (2) Both St. Paul Fire & Marine Insurance Company and its subsidiary, Economy Fire & Casualty Company (St. Paul) the alleged "victims" of Harman's misconduct in counts one through three, are current clients of Referee Jenkins' law firm.
      We conclude that Harman has waived any objection he might have to Referee Jenkins' handling of this disciplinary matter. Despite an opportunity to do so in an earlier disciplinary matter in which Attorney Jenkins also served as referee, Harman did not object to her handling that matter nor ask for substitution of referee. Furthermore, he did not raise any objection to Referee Jenkins in the instant disciplinary matter until after he filed his appeal in this court from the referee's report and recommendation. Because Attorney Harman never objected to Referee Jenkins' participation until after this matter was before this court, he has waived his right to raise her alleged conflict of interest based on facts he has known about for years.

       SCR 20:8.4(c) provides:
      It is professional misconduct for a lawyer to:
      (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

       SCR 20:1.15(b) provides:
      (b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person in writing...

       SCR 20:1.15(d) provides:
      (d) When, in the representation, a lawyer is in possession of property in which both the lawyer and another person claim interests, the property shall be treated by the lawyer as trust property until there is an accounting and severance of their interests. If a dispute arises concerning their respective interests, the portion in dispute shall continue to be treated as trust property until the dispute is resolved.

       In his brief on appeal in this court, Attorney Harman contends that he never "undertook" the representation of S.W. in her potential legal malpractice claim because she could never point to anything that her former attorney had done that would support a claim of legal malpractice against him. Harman's argument on appeal is similar to his claim before the referee that the Board had falsely asserted that he had represented S.W. in February or March 1998. The referee rejected that argument pointing out that Harman had admitted this factual allegation in his answer to the Board's complaint; moreover, Harman had acknowledged that he had discussed the custody situation with S.W. during that time period. The referee reasoned that such discussion/consultation clearly constituted representation. In addition, the Board has attached to its responsive brief in this court, a letter written by Attorney Harman dated March 18, 1998, to the defense attorneys in the Wood County medical malpractice action in which Harman asserted that he was "representing" S.W. Based on these facts, we agree with the referee's analysis and conclusion that Harman undertook the representation of S.W.

       SCR 20:1.7(b) provides:
      (b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:
      (1) the lawyer reasonably believes the representation will not be adversely affected; and
      (2) the client consents in writing after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

       SCR 20:1.6(a) provides:
      (a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation...

       SCR 20:3.4(c) provides:
      A lawyer shall not:
      (c) knowingly disobey an obligation under the rules of a tribunal. ...

       SCR 20:1.9(b) provides:
      A lawyer who has formerly represented a client in a matter shall not:
      (b) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client or when the information has become generally known.


author: DIANE S. SYKES, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Tronnie M. Dismuke, Defendant-Appellant-Petitioner.
    Supreme Court

      No. 99-1734-CR.

      Oral argument May 31, 2001.
    Decided June 28, 2001.

    2001 WI 75
    (Also reported in 628 N.W.2d 791.)

      For the defendant-appellant-petitioner there were briefs and oral argument by Richard D. Martin, assistant state public defender.
    For the plaintiff-respondent the cause was argued by David J. Becker, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
   DIANE S. SYKES, J.

¶ 1. The issue in this case is whether a circuit court may properly impose as costs against a criminal defendant the expenses associated with executing orders to produce the defendant from prison for court appearances in the case. Defendant Tronnie M. Dismuke was on parole when he was charged with armed robbery and possession of a firearm by a felon. His parole was revoked, and he was sent to Dodge Correctional Institution in Waupun, Wisconsin, to begin serving the remainder of his sentence on the parole offense while awaiting trial in Milwaukee County Circuit Court on the two new crimes.

¶ 2. During the intervening 19 or so months, Dis-muke was repeatedly transported by Milwaukee County sheriff s deputies from prison in Waupun to the Milwaukee County jail on orders to produce for various court appearances. He was eventually convicted and sentenced to prison, and the circuit court imposed "applicable. . .costs." The judgment of conviction set costs at $957.20; most of this total was attributable to sheriffs department costs for executing the orders to produce.

¶ 3. Dismuke moved for a reduction in the award of costs, contending that the expenses associated with executing the orders to produce were not taxable against him under Wis. Stat. § 973.06(1)(a) (1997-98). He also raised a constitutional challenge to the taxation of these costs. The circuit court denied the motion, and Dismuke appealed. The court of appeals affirmed, concluding that the expenses associated with executing the orders to produce were "fees of officers allowed by law" under Wis. Stat. § 973.06(1)(a), because they were collectible as "sheriffs fees" for service of process under Wis. Stat. § 814.70(1) and (4). The court of appeals also rejected Dismuke's constitutional claims.

¶ 4. We reverse. Our decision in State v. Ferguson, 202 Wis. 2d 233, 549 N.W.2d 718 (1996) interpreted the term "fees" in a related subsection of the criminal costs statute, Wis. Stat. § 973.06, to include only those sums "ordinarily charged to and payable by another," not internal operating expenses of a governmental unit. The record in this case contains conflicting information and no evidence about whether the expenses associated with executing orders to produce are generally "charged to and payable by another," or are merely internal operating expenses of the Milwaukee County Sheriffs Department. The record is similarly underdeveloped and murky on the specific amounts assessed in this case, and there is no record at all on the constitutional issues. Accordingly, we reverse the court of appeals and remand the cause to the circuit court for further proceedings consistent with this opinion.

I — !

¶ 5. The record in this case is inadequate in many respects, through no fault of the defendant. We do know that on June 12, 1996, Tronnie M. Dismuke was charged with one count of armed robbery and one count of possession of a firearm by a felon. Dismuke was on parole for another offense at the time the charges were issued. His parole was revoked, and he was transferred to Dodge County Correctional Institution in Waupun, Wisconsin, to begin serving the remainder of his sentence on the parole offense.

¶ 6. While the new case was pending, Dismuke was ordered produced from Dodge to the Milwaukee County jail for various court dates in the case. The record reflects eight orders to produce. Most of these were for jury trial. The case was repeatedly adjourned, sometimes for reasons attributable to the defendant and sometimes for reasons attributable to the state or the court.

¶ 7. On the reverse side of seven of the eight orders to produce there are notes from the Milwaukee County Sheriffs Department indicating roundtrip mileage costs of $193.20 and a "service" fee of $20, for a total of $213.20. The remaining order only reflects a "service" fee of $20. These sums combine for a total of $1,512,40.

¶ 8. Dismuke's trial began on January 5,1998, but was halted on its second day when Dismuke agreed to plead guilty to the armed robbery charge. The firearm possession charge was dismissed and "read in" for sentencing purposes. The Milwaukee County Circuit Court, the Honorable Timothy G. Dugan, sentenced Dismuke to 15 years in prison, consecutive to the sentence he was then serving, and also imposed "applicable.. .costs."

¶ 9. The judgment of conviction set costs at $957.20. The record does not reflect the precise factual basis for these costs, but the parties agree that all but $20 of the total is attributable in some way to the orders to produce. (The clerk of circuit court's fee under Wis. Stat. § 814.60(1) is $20.) Assuming this to be true, there is no explanation for the discrepancy between the amount of $937.20 ($957.20 minus the $20 clerk's fee) and the amount of $1,512.40, which is the combined total of the amounts reflected on the orders to produce.

¶ 10. On February 26, 1999, Dismuke moved to reduce the court costs from $957.20 to $20, claiming that only the clerk's fee under Wis. Stat. § 814.60(1) was taxable against him. Dismuke claimed that the expenses associated with executing the eight orders to produce were not taxable court costs under Wis. Stat. § 973.06. He also raised a constitutional challenge to the taxation of these costs.

¶ 11. The circuit court requested a "response from the state and/or county," and established a briefing schedule, which was supposed to conclude with the defendant's reply brief on May 7,1999. The record contains an April 21, 1999, letter from an attorney in the Milwaukee County Corporation Counsel's office; an April 28,1999, letter from an accountant in the Criminal Division of the Milwaukee County Clerk of Circuit Court's office; and two letters, dated August 26, 1998, and March 7, 2000, from an accountant in the Milwaukee County Sheriffs office. The state did not respond.

¶ 12. The letters from the various interested county departments offered conflicting explanations about the county's practice regarding orders to produce and the source of the authority to tax expenses related to them as costs in a criminal case. The clerk's office characterized the expenses associated with the orders to produce as bench warrant returns, and noted the discrepancy between the original amount assessed in Dismuke's case and the actual amounts reflected on the orders to produce. The sheriffs department said that it sometimes cross-charged the clerk's office for orders to produce, but only when the order identified the defendant as indigent; otherwise, no one is billed.

¶ 13. The corporation counsel's letter noted the practice of cross-charging a special fund in the clerk's office when the defendant is indigent and the defense attorney prepares the order to produce rather than the district attorney. However, the letter also stated that "the Sheriffs Department is not routinely reimbursed for transporting prisoners pursuant to an Order to Produce and [the corporation counsel] takes no position on the authority of the criminal judge to assess these costs." The second letter from the sheriffs department said that unless fees are waived by the court, the amounts reflected on the orders to produce are "put in the Case file" and "the Court makes the order for the inmate to pay this fee."

¶ 14. The circuit court denied Dismuke's motion by written order, concluding that, despite the contradictory information from the various county departments, Wis. Stat. § 973.06(1)(a) authorized it to assess the expenses associated with the orders to produce as costs against the defendant, because "the bottom line is that the county expended these amounts for the production of the defendant and that the defendant, not the county, should absorb these charges." In addition, the circuit court noted that the actual amounts reflected on the orders to produce totaled $1,512.40, not $937.20, and therefore ordered the clerk's office to recalculate costs.

¶ 15. Dismuke moved for reconsideration because the court decided the motion before the briefing schedule had expired, before receiving his reply and without an evidentiary hearing, and because the court had ordered an upward amendment to the costs in the judgment without notice. The circuit court denied the motion for reconsideration, but vacated its order requiring recalculation of costs to reflect the higher amount. The circuit court did not address Dismuke's constitutional arguments. Dismuke appealed.

¶ 16. The court of appeals affirmed, noting the muddled record but nonetheless concluding that expenses associated with executing an order to produce were "necessary disbursements and fees of officers" under Wis. Stat. § 973.06(1)(a) because they were collectible "sheriff s fees" under Wis. Stat. § 814.70(1) and (4). State v. Dismuke, 2000 WI App 198, ¶¶ 5, 12-13, 238 Wis. 2d 577, 617 N.W.2d 862. The court of appeals found our decision in Ferguson inapplicable, but held that, even if the case did apply, the expenses associated with orders to produce would satisfy its interpretation of "fees" under Wis. Stat. § 973.06(1). Dismuke, 2000 WI App 198 at ¶¶ 6-23. Finally, the court of appeals rejected Dismuke's equal protection and due process arguments, noting, however, that the circuit court had conducted no factfinding on these issues. Id. at ¶¶ 24-29. We accepted review.

1 — ! I — I

¶ 17. Whether expenses associated with orders to produce a defendant from prison for court appearances are costs taxable against the defendant under Wis. Stat. § 973.06 is a question of statutory interpretation that we review de novo. Ferguson, 202 Wis. 2d at 237. The court of appeals held that the expenses associated with the orders to produce in this case are "fees of officers allowed by law" under Wis. Stat. § 973.06(1)(a) because they are collectible "sheriffs fees" under Wis. Stat. § 814.70(1) and (4).

¶ 18. Wisconsin Statute § 973.06 provides, in pertinent part:

(1) Except as provided in s. 93.20, the costs taxable against the defendant shall consist of the following items and no others:
(a) The necessary disbursements and fees of officers allowed by law and incurred in connection with the arrest, preliminary examination and trial of the defendant, including, in the discretion of the court, the fees and disbursements of the agent appointed to return a defendant from another state or country.

¶ 19. We have long held that" 'in this state costs are regulated exclusively by statute as a matter of legislative discretion.'" Ferguson, 202 Wis. 2d at 244 (quoting State ex rel. Korne v. Wolke, 79 Wis. 2d 22, 24-25, 255 N.W.2d 446 (1977)). In Ferguson, we held that costs taxable against a criminal defendant are limited to those specifically enumerated in Wis. Stat. § 973.06. Id. at 238. Interpreting another subsection of the statute—Wis. Stat. § 973.06(1)(c) relating to "fees and disbursements" of expert witnesses — we concluded that a "fee" is "a sum which is ordinarily charged to and payable by another." Id. at 241. "Disbursements" under the statute are "those incidental and out-of-pocket expenses. . .ordinarily charged to and payable by another." Id.

¶ 20. The defendant in Ferguson had been ordered to pay $105 to the State Crime Laboratory to cover the cost of testing the controlled substance found in his possession. The State argued that the laboratory expense constituted a "fee or disbursement" of an expert witness under Wis. Stat. § 973.06(1)(c). We rejected the state's interpretation of the statute:

[T]he State contends that because the lab expenses at issue are fixed, they are fees under Wis. Stat. § 973.06(1)(c). We disagree with the State's argument. The fact that the cost of performing a governmental service can be established (fixed) does not ipso facto make the cost of performing that service a fee under Wis. Stat. § 973.06(1)(c). To constitute a fee under § 973.06(l)(c), the cost of performing a service must be more than an internal operating expense of a governmental unit which has been prorated or costed out; it must be chargeable to and payable by another.

Ferguson, 202 Wis. 2d at 242.

¶ 21. Although we are interpreting a different subsection of the criminal costs statute in this case, Ferguson's interpretation of the phrase "fees and disbursements" for purposes of this statute is applicable. Ferguson concerned subsection (l)(c) of the statute, which refers to "fees and disbursements" of expert witnesses; the state here invokes subsection (l)(a) of the statute, which refers to "disbursements and fees of officers." Words or phrases appearing in the same statute are given the same meaning. State v. Charles, 180 Wis. 2d 155, 159-60, 509 N.W.2d 85 (Ct. App. 1993).

¶ 22. Accordingly, whether the expenses associated with the orders to produce in Dismuke's case are taxable "fees of officers" under the statute depends upon whether they are ordinarily charged to and payable by another or are merely internal operating expenses of a governmental unit. We cannot resolve this question as a factual matter on the basis of this record, and Wis. Stat. § 814.70 does not resolve it as a matter of law.

¶23. Wisconsin Statute §814.70 specifies that, unless a higher fee is established by the county under Wis. Stat. § 814.705, the sheriff shall collect fees for:

(1) SERVICE OF PROCESS. For each service or attempted service of a summons or any other process for commencement of an action, a writ, an order of injunction, a subpoena or any other order, $12 for each defendant or person.
(4) TRAVEL; CRIMINAL PROCESS. For travel in serving any criminal process:
(b) In counties having a population of 500,000 or more, $4 for each person served within the county from which process issued, or 25 cents per mile if served outside the county.
(c) The actual and necessary disbursements for board and conveyance of the prisoner.

¶ 24. Assuming that the execution of an order to produce constitutes "service of process" within the meaning of this statute, the record, such as it is, conflicts with the fees allowed under the statute. The statute allows a $12 "service" fee; the orders to produce reflect a $20 "service" fee, also variously called a "warrant" fee by the county departments that responded to the circuit court's request for information. The statute allows mileage at 25 cents per mile; the orders to produce reflect roundtrip mileage that apparently calculates to more than 25 cents per mile. The record contains no found facts (because no factfinding was done), only conflicting information from several county departments about the sheriffs internal accounting practices regarding orders to produce.

¶25. In short, whether the expenses associated with the orders to produce are "fees of officers allowed by law" within the meaning of Wis. Stat. § 973.06(1)(a) and Ferguson, and whether they are collectible as "sheriffs fees" for service of process and travel under Wis. Stat. § 814.70(1) and (4), cannot be determined from this record. The record on the constitutional issues is nonexistent.

¶ 26. Accordingly, because of the inadequacies in this record, we hold only that our decision in Ferguson applies to the determination of taxable "fees of officers allowed by law" under Wis. Stat. § 973.06(1)(a). This requires a determination of whether the expenses associated with the execution of orders to produce are ordinarily charged to and payable by another or are merely internal operating expenses of a governmental unit. If the former, they are taxable, provided they are "allowed by law," which requires a determination of whether the actual assessments were consistent with Wis. Stat. § 814.70. The constitutional issues in this case cannot be resolved because there is no record upon which to resolve them. Therefore, we reverse the court of appeals and remand this case to the circuit court for further proceedings consistent with this opinion.

By the Court. — The decision of the court of appeals is reversed and the cause is remanded to the Milwaukee County Circuit Court.

       All subsequent references to the Wisconsin Statutes are to the 1997 — 98 version unless otherwise indicated.

       The record shows the following eight orders to produce: September 4,1996 (Jury Trial); December 16,1996 (Jury Trial); February 24, 1997 (Jury Trial); March 13, 1997 (Status); August 27, 1997 (Jury trial); December 2, 1997 (Pre-Trial); January 5, 1998 (Jury Trial); February 5, 1998 (Sentencing).

       The state does not contend that these are "disbursements" under the statute.

       The court of appeals "assumed" from this discrepancy that Milwaukee County had authorized a higher fee under Wis. Stat. § 814.705, and concluded that it was irrelevant anyway. We make no such assumption, and it is not irrelevant. Without an adequate record on the factual basis for the costs that were taxed we cannot resolve the defendant's statutory or constitutional challenges.