State Ex Rel. McDonald v. Circuit Court for Douglas County

302 N.W.2d 462, 100 Wis. 2d 569, 1981 Wisc. LEXIS 2711
CourtWisconsin Supreme Court
DecidedMarch 3, 1981
Docket79-1927-W
StatusPublished
Cited by30 cases

This text of 302 N.W.2d 462 (State Ex Rel. McDonald v. Circuit Court for Douglas County) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Ex Rel. McDonald v. Circuit Court for Douglas County, 302 N.W.2d 462, 100 Wis. 2d 569, 1981 Wisc. LEXIS 2711 (Wis. 1981).

Opinions

WILLIAM G. CALLOW, J.

This is a review of a decision of the court of appeals granting a supervisory writ prohibiting the circuit court for Douglas county, Branch II, Hon. Douglas S. Moodie, the Douglas county district attorney, and the state attorney general from conducting a preliminary examination in the prosecution of a violation of sec. 346.67, Stats.1 The court of appeals [571]*571concluded that, because a violation of sec. 346.67 was a misdemeanor and not a felony, no preliminary examination should be held. State ex rel. McDonald v. Douglas County Cir. Ct., 95 Wis.2d 423, 290 N.W,2d 559 (Ct. App. 1980). We hold that a violation of sec. 346.67 when death or injury is alleged constitutes a felony, and we reverse.

This action arises from a criminal complaint filed by the district attorney for Douglas county on November 13, 1979, charging David M. McDonald with “feloniously” failing to stop his vehicle and return to the scene of an accident involving injury to a person, in violation of sec. 346.67, Stats. Prior to a scheduled preliminary examination, the judge advised McDonald of his belief that the charge was a felony and rescheduled the preliminary examination to provide McDonald an opportunity to seek extraordinary relief from the court of appeals in the form of a determination whether the offense with [572]*572which he was charged was a felony or misdemeanor. Following the order of the court of appeals granting a writ prohibiting the • circuit court from proceeding on the charge ás a felony, the respondents petitioned this court for a review of the order granting the writ. Subsequent to the filing of the petition to review, McDonald pleaded guilty to the offense and was fined. We granted the petition to review on July 9, 1980, and on August 20, 1980, McDonald moved to dismiss the case as moot. That motion was denied.

I. MOOTNESS

McDonald’s plea of guilty, payment of a fine, and consequent discharge raises the issue of mootness. The attorney general, representing the petitioners on this review, concedes that as to McDonald individually the question is moot because the controversy with respect to his violation of sec. 346.67, Stats., has been terminated.

A case is moot when a determination is sought which, if rendered, could have no practical effect upon a then-existing controversy. In Matter of K. H., 98 Wis.2d 295, 300, 296 N.W.2d 746 (1980); Family Savings & Loan v. Barkwood Landscaping Co., Inc., 93 Wis.2d 190, 207, 286 N.W.2d 581 (1980); State ex rel. Ellenburg v. Gagnon, 76 Wis.2d 532, 535, 251 N.W.2d 773 (1977). A determination by this court whether a violation of sec. 346.67, Stats., constitutes a felony or a misdemeanor will have no effect upon McDonald, and as the case involves him individually, we hold it to be moot. This conclusion does not preclude our consideration of the basic question involved in the case, however, as we have often stated that we will reach the merits of a moot question where it presents an issue of great public importance or where the situation involved will arise with sufficient frequency to warrant a definitive decision to guide trial courts in [573]*573similar instances. Racine v. J-T Enterprises of America, Inc., 64 Wis.2d 691, 701, 221 N.W.2d 869 (1974); Carlyle v. Karns, 9 Wis.2d 394, 397, 101 N.W.2d 92 (1960). In this case we believe the question involved to be of great public importance and, in addition, that there is substantial likelihood that it will recur with sufficient frequency to warrant our consideration.

II. FELONY OR MISDEMEANOR

Sec. 346.67, Stats., imposes upon the operator of a motor vehicle involved in an accident the duty to stop at or return to the scene of the accident, provide identification, and render reasonable assistance to any person injured in the accident. The penalty for violating sec. 346.67 is found in sec. 346.74(5). Pursuant to that section, if the accident does not involve death or injury of a person, a violator may be fined not more than $200 and imprisoned for not more than six months. If the accident results in death or injury to a person, the violator may be fined $5 to $5,000 or imprisoned from ten days to one year.

The state argues that the violation involved in this case, that is, one involving death or injury to a person, is a felony because the maximum period of incarceration upon conviction, pursuant to sec. 346.74(5), Stats., is one year with no place of confinement designated. Sec. 939.60,2 provides that a felony is a crime punishable by imprisonment in a Wisconsin state prison; and sec. 973.02,3 provides that, when no place of imprisonment is [574]*574prescribed, a sentence of one year may be to the state prisons or to the county jail. The state concludes that, since the penalty prescribed for the instant violation could be a one-year term of imprisonment, and since a one-year sentence may be to a state prison, the offense is “punishable” by imprisonment in a state prison and is thus a felony under sec. 939.60.

McDonald responds that the issue is not properly determined solely by reference to secs. 939.60 and 973.02, Stats., because the offense involved predates the adoption of the predecessor to sec. 973.02. Rather, he argues that the issue is controlled by this court’s decision in State ex rel. Gaynon v. Krueger, 31 Wis.2d 609, 143 N.W.2d 437 (1966). In Gaynon we held that, where an offense predated the 1945 revision of the criminal code which created sec. 353.27 (2), Stats, (later 959.044 and now 973.02), its classification as a felony or misdemeanor must be determined by resort to legislative intent at the time of its creation. This holding was based upon the view that “[sec. 973.02] was not legislation for the purpose of changing grades of crimes but was as its caption indicates to designate the ‘Place of imprisonment when none expressed’ in the section creating the crime. It deals solely with the place of imprisonment of felonies and misdemeanors and should not be used retroactively as a whiplash to change the grade of an offense by reference to sec. 939.60.” Id. at 618. Applying the principles set forth in Gaynon, McDonald argues that an examination of the legislative history of sec. 346.67 reveals a legislative intent that the hit and run offense be classi[575]*575fied as a misdemeanor and that this intent should be recognized despite the presence of secs. 939.60 and 973.02.

In an effort to circumvent Gaynon, the state relies upon Zastrow v. State, 62 Wis.2d 381, 215 N.W.2d 426 (1974), and State v. Asfoor, 75 Wis.2d 411, 249 N.W.2d 529

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Bluebook (online)
302 N.W.2d 462, 100 Wis. 2d 569, 1981 Wisc. LEXIS 2711, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-mcdonald-v-circuit-court-for-douglas-county-wis-1981.