Farley v. State

183 N.W.2d 33, 50 Wis. 2d 113, 1971 Wisc. LEXIS 1174

• Court: Wisconsin Supreme Court
• Decided: February 5, 1971
• Docket: State 39
• Status: Published

Opinions

Hanley, J.

Three issues are presented on this appeal:

(1) Did defendant’s incarceration from arrest to time of trial, nearly one year, constitute a denial of his sixth amendment right to a speedy trial;

(2) Was defendant entitled to a sentence “credit” for time spent in confinement while awaiting trial; and

(3) Was the failure to give credit for time spent in confinement prior to trial a denial of equal protection, contrary to the fourteenth amendment?

Within one year after imposition of sentence, defense counsel failed to present a motion to the trial court to exercise its inherent power to modify a criminal sentence. The time limits for bringing such a motion are set forth in Hayes v. State (1970), 46 Wis. 2d 93, 175 N. W. 2d 625.

The failure to present a motion for a review of the sentence deprived the trial court of the opportunity to consider the very question which is now presented upon appeal with reference to “credit” for time served while awaiting trial.

This court would be compelled to speculate as to whether or not the trial court gave consideration to time served prior to trial in imposing sentence.

We hold that failure to present a motion at the trial court level to review a sentence bars the defendant from raising a question of impropriety as to sentence except under compelling circumstances, which do not appear in the case at bar.

The other two issues involve constitutional claims which were not raised at the trial level.¹ The general rule regarding this court’s initial review of alleged constitutional errors was set forth in Bradley v. State (1967), 36 Wis. 2d 345, 359, 153 N. W. 2d 38, 155 N. W. 2d 564:

“This question was raised for the first time in the briefs that are before us on this appeal. We have frequently said that even the claim of a constitutional right will be deemed waived unless timely raised in the trial court. . . . We have, however, concluded that this court may nevertheless decide a constitutional question not raised below if it appears in the interest of justice to do so and where there are no factual issues that need resolution.”

From a review of the record in this case, it clearly appears that the interest of justice will not be served by reviewing the alleged errors.

By the Court. — Judgment affirmed.

1 Defendant is not represented by trial counsel.