State v. Hanson

2001 WI 70, 628 N.W.2d 759, 244 Wis. 2d 405, 2001 Wisc. LEXIS 421

• Court: Wisconsin Supreme Court
• Decided: June 26, 2001
• Docket: 99-3142-CR
• Status: Published

Opinions

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privileges were revoked as a habitual traffic offender (HTO).¹ Hanson contends that because his HTO status was rescinded pursuant to Wis. Stat. § 351.09 (1997-98),² 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 We conclude that a criminal sentence based solely upon Hanson's HTO status, which was rescinded under § 351.09 prior to his conviction, is a sentence in excess of that authorized by law and is invalid under Wis.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 On four occasions in 1996, Hanson was convicted of operating a motor vehicle after his license had been revoked or suspended (OAR/OAS), contrary to Wis.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. § 351.09.³

¶ 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).⁴ 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.⁵ 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).⁶ 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).⁷

¶ 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. 795.⁸ 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 § 351.09.⁹

¶ 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.¹⁰

¶ 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."¹¹ 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.

1 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).

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

3 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.

4 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).

5 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.

6 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).

7 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.'").

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

9 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).

10 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.