State v. Martin

470 N.W.2d 900, 162 Wis. 2d 883, 1991 Wisc. LEXIS 484

• Court: Wisconsin Supreme Court
• Decided: June 24, 1991
• Docket: 89-1459-CR, 89-1769-CR
• Status: Published

Opinions

HEFFERNAN, CHIEF JUSTICE.

These cases, on review of separate decisions of the court of appeals, have been consolidated and raise the single issue whether a criminal charging document can be amended to assert a repeater allegation under sec. 973.12(1), Stats., after a defendant has pleaded not guilty to the underlying charges at arraignment.¹ In each case the court of appeals held that the repeater amendment could not be made after the entry of a not guilty plea.² We agree that the repeater amendments were untimely and affirm both decisions.

The material facts and procedural history of each case are undisputed. On April 14, 1987, Stanley E. Martin was charged by criminal complaint with second degree sexual assault. The complaint did not contain any allegation of habitual offender, "repeater," status pursuant to sec. 939.62, Stats. At Martin's initial appearance on April 24, 1987, the assistant district attorney did inform the court, however, of Martin's two prior felony convictions, the sentences he received for those convictions, and that there was a hold on him for a parole violation.

Following a preliminary hearing, the state filed an information on May 6, 1987, charging Martin with second degree sexual assault. The information did not contain any repeater allegations. On that same day, Martin was arraigned and pleaded not guilty to the felony charge set forth in the information.

Thereafter the state filed a motion to amend the information in order to allege Martin's repeater status. On July 10, 1987, the court granted the state's motion over the defendant's objection. The court ruled that, pursuant to sec. 971.29, Stats., an information could be amended to include a repeater allegation after arraignment where there is no prejudice to the defendant.³

On November 17, 1988, following a four-day trial, a jury found Martin guilty of one count of second degree sexual assault. Judgment of conviction was entered on November 21, 1988, at which time Milwaukee County Circuit Court Judge John F. Foley sentenced defendant as a repeat offender under sec. 939.62 to a prison term of sixteen years.

Martin appealed the judgment of conviction, alleging various trial court errors. The court of appeals affirmed the conviction but ordered vacation of the repeater amendment and that part of defendant's sentence affected by repeater enhancement, i.e., six of the sixteen year prison term. In a published opinion, the court of appeals held that sec. 973.12(1), Stats., controlled the more general sec. 971.29 and only permitted the state to amend a charging document in order to add a repeater allegation prior to arraignment and acceptance of a defendant's plea. 156 Wis. 2d at 406-07. Because the repeater amendment was untimely, the court of appeals vacated the repeater enhancement portion of Martin's sentence. Id. at 408.

The relevant facts and posture of the other consolidated case are similar. On January 17, 1989, the state filed a complaint charging Jose L. Robles with aggravated battery and obstructing an officer. The complaint did not contain any repeater allegation. The state knew of Robles' true identity prior to the issuance of the complaint as he was identified on the basis of fingerprints on file with the Racine Police Department.

Thereafter the state filed an information containing the aggravated battery and obstructing charges. The information also failed to allege any repeater status. Robles was arraigned on February 10, 1989, and pleaded not guilty to the charges set forth in the information.

On the first day of trial, April 18, 1989, the state filed a motion to amend the information alleging habitual criminality history. The state claimed it had problems locating "all three of the misdemeanor prior cards" pertaining to Robles. Over the defendant's objection, Racine County Circuit Court Judge Jon B. Skow reluctantly permitted the amendment. The court reasoned that a denial of the motion would "inappropriately punish the State for perhaps inattention in case preparation" and that Robles' ability to defend would not be affected because he obviously was aware of his own criminal record.

At the completion of the trial on April 20,1989, the jury found Robles guilty of the charges. Judgment of conviction was entered on May 24, 1989, at which time Judge Skow sentenced Robles as a repeater to a combined total of six years for the two crimes.

Robles appealed the judgment of conviction on several grounds. In a published opinion, the court of appeals affirmed the conviction but, based on the Martin decision, vacated the repeater enhancement portion of Robles' sentence because the information was not amended in a timely fashion. 157 Wis. 2d at 63-4.

The state petitioned for review of both the Martin and Robles decisions, and we granted the petitions and ordered the two cases consolidated.

The single issue raised on appeal in both cases is whether an information can be amended under sec. 973.12(1), Stats., to assert a repeater allegation after a defendant has pleaded not guilty to the underlying charges at arraignment.⁴ The resolution of this issue depends on the interpretation of a statute, a question of law to be decided by this court without deference to the lower courts. State v. Eichman, 155 Wis. 2d 552, 560, 455 N.W.2d 143 (1990).

The state argues that sec. 973.12(1), Stats., is ambiguous and should be construed to allow trial courts to exercise discretion on whether to permit repeater amendments after a defendant is arraigned. The state asserts that such a result should be reached by construing the statute in either of two ways.

First, the state contends that sec. 973.12(1), Stats., only establishes the time frame when a prosecutor can in its unilateral discretion and without leave of court add a repeater allegation to a charging document, i.e., "any time before or at arraignment, and before acceptance of any plea." The state asserts that sec. 973.12(1) does not expressly preclude a trial court from allowing a repeater amendment after arraignment and plea-acceptance and that the statute could reasonably be interpreted to permit such an amendment with leave of court where the defendant cannot show that he or she is thereby prejudiced.

The state urges us to harmonize sec. 973.12(1) with sec. 971.29, Stats., which we construed in Whitaker v. State, 83 Wis. 2d 368, 265 N.W.2d 575 (1978), to generally allow post-arraignment amendments where there is no prejudice to a defendant. It is argued that there might be various situations where the state would not timely allege prior convictions and where such trial court discretion would be necessary or beneficial, e.g., where the defendant has used an alias or the prosecutor has simply been inattentive.

Second, the state contends, although admittedly as somewhat of a fallback position, that the phrases, "acceptance of any plea" and "accepting a plea," in sec. 973.12(1), Stats., are ambiguous and should be given their technical or peculiar legal meaning and not refer to the one plea which is not "accepted" but only "entered" — a not guilty plea. The state points to legislative history and refers to our decision in Block v. State, 41 Wis. 2d 205, 211, 163 N.W.2d 196 (1968), where we noted that the pertinent statutory amendment to sec. 973.12(1) "eliminated the possibility of a plea of guilty and a subsequent charge of being a repeater." Because the second sentence of sec. 973.12(1) expressly allows a court to grant a district attorney "a reasonable time to investigate possible prior convictions before accepting a plea," the state asserts that the statute directly authorizes a repeater amendment after the entry of a not guilty plea as long as it is added prior to an acceptance of a guilty or no contest plea.

While the state has set forth some rather ingenious arguments, we are not persuaded that sec. 973.12(1), Stats., can be interpreted to permit repeater amendments where defendants already have been arraigned and have pleaded not guilty to informations not alleging any repeater status.

Before addressing the state's first proffered interpretation of sec. 973.12(1), Stats., we note that the purpose of statutory construction is to ascertain and give effect to the intent of the legislature. County of Columbia v. Bylewski, 94 Wis. 2d 153, 164, 288 N.W.2d 129 (1980). In determining legislative intent, however, first resort must be to the language of the statute itself. State v. Derenne, 102 Wis. 2d 38, 45, 306 N.W.2d 12 (1981). "If the meaning of the statute is clear and unambiguous on its face, resort to extrinsic aids for the purpose of statutory construction is improper. A statute is ambiguous when it is capable of being understood by reasonably well-informed persons in two or more different senses." State v. Denter, 121 Wis. 2d 118, 123, 357 N.W.2d 555 (1984). "A statute should be construed so that no word or clause shall be rendered surplusage and every word if possible should be given effect." Donaldson v. State, 93 Wis. 2d 306, 315, 286 N.W.2d 817 (1980).

Our initial task, therefore, is to determine whether the plain language of sec. 973.12(1), Stats., is ambiguous and could reasonably admit to the state's first proffered construction. In relevant part, sec. 973.12(1) provides:

973.12 Sentence of a repeater. (1) Whenever a person charged with a crime will be a repeater as defined in s. 939.62 if convicted, any prior convictions may be alleged in the complaint, indictment or information or amendments so alleging at any time before or at arraignment, and before acceptance of any plea. The court may, upon motion of the district attorney, grant a reasonable time to investigate possible prior convictions before accepting a plea. If such prior convictions are admitted by the defendant or proved by the state, he shall be subject to sentence under s. 939.62 . . ..

While the first sentence clearly establishes a time frame when a prosecutor "may" in his or her discretion put a repeater allegation in a charging document, we would agree with the state that this sentence standing alone does not expressly address or prohibit repeater amendments after arraignment and plea-acceptance. That the second sentence grants a court discretion to delay plea-acceptance until a prosecutor has investigated a defendant's criminal history, however, certainly suggests that the arraignment and plea-acceptance time period set forth in the first sentence is a true deadline. The investigatory time period prior to plea acceptance permitted in the second sentence would appear to be the remedy the state seeks in circumstances where the defendant has used an alias or the prosecutor, by the press of work, is unable to make a timely investigation.

While not addressed by the parties, it should also be noted that the third sentence only provides for the triggering of repeater enhancement when "such prior convictions" are admitted by the defendant or proven by the state. "Such prior convictions" would most reasonably refer to those convictions discussed in the first sentence which are alleged in a charging document prior to the arraignment and plea-acceptance deadline.

In Whitaker, 83 Wis. 2d 368, supra, however, we did construe sec. 971.29, Stats., to permit the amendment of an information after arraignment and before trial, provided the defendant's rights were not prejudiced, although the statute did not directly address this time frame. Id. at 371-74. We rejected the application of the rule of expressio unius est exclusio alterius because such a maxim of statutory construction "must rest on the premise that the legislature considered all the alternative times an amendment of the information might be made and that all alternatives were rejected by the legislature except the ones set forth." Id. at 374.

As Martin and Robles point out, sec. 971.29, Stats., which generally governs the amendment of criminal charging documents, was ambiguous in that the statute expressly permitted amendments "prior to arraignment," ”[a]t the trial," and ”[a]fter verdict" but failed to address the time period between arraignment and trial. The statute clearly left a "gap," therefore, and our conclusion in Whitaker that the legislature intended to permit amendments with leave of court during this time period was further supported by the fact that the statute expressly allowed amendments prior to arraignment "without leave of the court." See sec. 971.29(1).

Section 973.12(1), Stats., on the other hand, which specifically governs repeater amendments, neither contains any "gaps" nor expressly sets forth that a prosecutor may amend a criminal charging document prior to arraignment and plea-acceptance "without leave of the court" so as to suggest that an amendment could be made at a later time "with leave of the court." In fact, the ability of a prosecutor to seek an investigatory time extension under the second sentence of sec. 973.12(1) reasonably suggests that the court's ability to exercise discretion has been limited to only that time period prior to plea acceptance.

It would strongly appear, therefore, that the plain language of sec. 973.12(1), Stats., establishes a statutory rule: A prosecutor needs to allege a defendant's repeater status in the appropriate charging document prior to arraignment and plea. But because the statute does not directly address the post-arraignment and plea-acceptance time period, such a conclusion would essentially require the application of the rule of expressio unius est exclusio alterius, which in turn calls for a more thorough examination of legislative intent by looking outside the four corners of the statute. Although we conclude that sec. 973.12(1) is unambiguous as to whether a repeater amendment can be made after arraignment and plea acceptance, we examine the statutory language "in relation to its context, subject matter, scope, history, and object intended to be accomplished." Terry v. Mongin Ins. Agency, 105 Wis. 2d 575, 584, 314 N.W.2d 349 (1982).⁵

The evolution of Wisconsin's criminal repeater statute has been marked by some rather significant changes which shed light on the issue at hand. It is clear that for the greater part of the last 113 years, a defendant's criminal sentence was subject to repeater enhancement although a repeater allegation was not set forth in the charging document prior to conviction.

The general repeater statute was originally enacted in 1878 and permitted sentencing enhancement only where the defendant's prior convictions were "alleged in the indictment, information or complaint, and proved or admitted on the trial.⁶ While the repeater allegation was not considered an essential element of the substantive offense charged under that statute, it was considered "an essential element of the charge in the information in order to secure the punishment provided for in case of a second offense and [had to] be alleged in the information." Dahlgren v. State, 163 Wis. 141, 144, 157 N.W. 531 (1916). See also Paetz v. State, 129 Wis. 174, 177, 107 N.W. 1090 (1906); Ingalls v. State, 48 Wis. 647, 655, 4 N.W. 785 (1880).

The repeater provisions were notably altered in 1919, and the revised statutes permitted a court to investigate a defendant's criminal history after conviction even when the charging document did not set forth any repeater allegations.⁷ The statute clearly did not require a defendant to be made specifically aware of any potential sentencing enhancement due to prior convictions at the time of his or her entry of a guilty, no contest, or not guilty plea.⁸

The legislature changed the repeater provisions again in 1949 and set forth that a defendant's repeater status "may be alleged in the complaint, indictment or information or otherwise brought to the attention of the court at any time before execution of sentence has commenced."9 Again, the statute on its face permitted the imposition of a repeater sentence after a defendant pleaded to charges contained in the information without any express notice that repeater enhancement would be sought by the prosecutor.¹⁰

The last major amendment of the repeater statute which established the language under consideration in this case occurred in 1965. See Sec. 2, ch. 422, Laws of 1965. The legislature made two very important alterations.

First, there was a deletion of all references to a defendant's ability to demand a jury trial on the issue of whether the prior convictions existed. See sec. 959.12, Stats. 1965. Such a change was actually meant to assist the defendant in that it helped prevent a jury from hearing evidence on the collateral issue of sentence enhancement prior to the determination of guilt. See State ex rel. LaFollette v. Raskin, 34 Wis. 2d 607, 623-24, 150 N.W.2d 318 (1967); see also Mulkovich v. State, 73 Wis. 2d 464, 467-68, 243 N.W.2d 198 (1976).

Second, and more importantly, there was a deletion of those longstanding provisions which permitted a court to impose a repeater sentence where the prior convictions were first discovered or alleged "at any time before execution of sentence has commenced," "after conviction," or after a "sentence has already been passed but execution thereof has not been commenced." See sec. 959.12(1), Stats. 1963. In its place, the revised statute expressly allowed the prior convictions to be alleged in any "amendments" to the charging documents (i.e., complaint, indictment, or information), so long as they were now alleged "at any time before or at arraignment, and before acceptance of any plea." Additionally, the legislature added a provision allowing courts upon motion of the district attorney to grant a reasonable time extension "to investigate possible prior convictions before accepting a plea." See sec. 959.12(1), Stats. 1965.

We conclude that any argued, though nonexistent, ambiguity has been resolved by this examination of the statutory evolution of sec. 973.12, Stats.¹¹ The statutory changes make clear that the legislature has established the time of arraignment and of any plea acceptance as the cut-off point after which time a defendant can no longer face exposure to repeater enhancement for the crime set forth in the charging document and pleaded to by the defendant at arraignment.¹² As we noted in Block v. State, 41 Wis. 2d 205, 210, 163 N.W.2d 196 (1968), when analyzing the 1965 amendment to the repeater statute:

Being a repeater is not a crime but may enhance the punishment of the crime for which the repeater is convicted. The allegation of recidivism is put in the information in order to meet the due-process requirements of a fair trial. When the defendant is asked to plead, he is entitled to know the extent of his punishment of the alleged crime, which he cannot know if he is not then informed that his prior convictions may be used to enhance the punishment. [Emphasis supplied.]¹³

It has long been recognized, furthermore, that a prosecutor does not act with unlimited discretion but rather is "answerable to specific directions of the legislature." See State ex rel. Kurkierewicz v. Cannon, 42 Wis. 2d 368, 380, 166 N.W.2d 255 (1969); see also State v. Dums, 149 Wis. 2d 314, 322, 440 N.W.2d 814 (Ct. App. 1989). While a district attorney generally exercises broad discretion in deciding which charges to bring against a defendant and whether or not to even seek a repeater sentence, the legislature has limited the time frame when such repeater sentencing can be triggered.

The state has asked us to construe sec. 973.12(1), Stats., so as to permit a repeater amendment after arraignment and plea acceptance where there is no prejudice to the defendant. It asserts that defendants such as Martin and Robles who have only pleaded not guilty to charges set out in the information are hardly prejudiced by a pretrial amendment alleging repeater status. Martin and Robles, in turn, contend that their ability to plea bargain or prepare for trial has been substantially affected by the untimely repeater allegation. Moreover, they assert that prejudice is oftentimes difficult to prove and that there is no indication that the legislature intended to allow repeater amendments upon an evidentiary showing of lack of prejudice.

We agree with Martin and Robles that proof of prejudice is an irrelevant consideration under sec. 973.12(1), Stats. The legislature has established a rule. Regardless of the kind of plea entered in response to the charges alleged at arraignment, the defendant's plea will be more meaningful if he or she is aware of the extent of potential punishment which ensues from a conviction of the crime.¹⁴

In both cases before us, the defendants' repeater status clearly was not alleged until after arraignment and pleas of not guilty were entered by the defendants. Under Block, Martin and Robles each had a right to be apprised of possible repeater sentencing at the time they were asked to plead to the charges contained in the information. Because the state failed to allege any prior convictions by that time (and failed to request an investigatory time extension), sec. 973.12(1), Stats., prohibited any imposition of a repeater sentence for the crimes which Martin and Robles were eventually tried and convicted. We believe the legislature has given a prosecutor ample time and opportunity to investigate and allege a defendant's prior convictions.¹⁵

As a fallback position, the state has proffered a second interpretation of sec. 973.12(1), Stats., which focuses on the use of the terms "acceptance of any plea" in the statute's first sentence and "accepting a plea" in the second sentence. As noted earlier, the state urges us to give those terms their peculiar legal meaning. Because not guilty pleas are not technically "accepted" by courts but only "entered," the state contends that a prosecutor is not foreclosed from alleging a defendant's repeater status until a guilty or no contest plea is accepted by the court.

In construing a statute, a court must give effect to the ordinary and accepted meaning of the language. County of Walworth v. Spalding, 111 Wis. 2d 19, 24, 329 N.W.2d 925 (1983). Absent statutory definition, words are to be construed according to their common meaning. State v. Gilbert, 115 Wis. 2d 371, 377-78, 340 N.W.2d 511 (1983). It has long been the rule, however, that "technical words and phrases and others that have a peculiar meaning in the law shall be construed according to such meaning." See sec. 990.01(1), Stats.; Sharpe v. Hasey, 134 Wis. 618, 114 N.W. 1118 (1908).

The state argues that the legislature's use of the word, "accept," in sec. 973.12(1), Stats., is ambiguous. In the context of a defendant's plea to criminal charges, one normally associates the word, "accept," with guilty or no contest pleas, because a court has discretion whether or not to officially receive or accept these pleas based, among other things, on the voluntary nature of the plea and defendant's understanding of the charge. See sec. 971.08; Wis. J.I. — Criminal SM-32, 32A. A court is typically not thought of as having discretion to reject (as opposed to accept) a not guilty plea, on the other hand. If a defendant stands mute or refuses to plea, a court is required to "direct the entry of a plea of not guilty on his behalf." Section 971.06(2).

While standing alone the concept of "accepting a plea" may create superficial ambiguity, the relevance of such assertion of ambiguity dissipates quickly when the provisions of sec. 973.12(1), Stats., as a whole are examined. The first sentence of sec. 973.12(1) sets forth conjunctive requirements: A defendant's repeater status needs to be alleged in the charging documents "before or at arraignment, and before acceptance of any plea" (emphasis supplied). Accordingly, regardless of how we interpret the latter "plea acceptance" requirement, there can be no repeater enhancement unless the "arraignment" requirement is met. Clearly, an unindicted felony defendant is arraigned by the time a not guilty plea is entered on the charges set forth in the information. See sec. 971.05, Stats.; Eskra v. State, 29 Wis. 2d 212, 224-25,138 N.W.2d 173 (1965). Thus, because the infor-mations charging Martin and Robles did not contain repeater allegations at the time of the defendants' entry of not guilty pleas, the state was thereafter foreclosed from seeking a repeater sentence.

The state points out, however, that the second sentence of sec. 973.12(1), Stats., does not have a conjunctive "arraignment” requirement but allows for an investigatory time extension "before accepting a plea." This second sentence, the state contends, independently permits a prosecutor to add a repeater amendment after entry of a not guilty plea but prior to acceptance of a guilty or no contest plea.

We do not believe these provisions should be construed in such a way. The second sentence of the statute merely permits a time extension prior to plea acceptance which under the first sentence is one of the conjunctive deadlines by which time a repeater allegation must be made. The two sentences must be read together. More importantly, we conclude that the legislature did not intend to exclude not guilty pleas from the ambit of pleas which can be "accepted" under sec. 973.12(1), Stats. The legislature used the words, "any plea."

From a standpoint of facial statutory construction, we note that the legislature in various other statutes has expressly referred to the acceptance of guilty or no contest pleas when it intended to limit the statute's application to those types of pleas. See secs. 23.70(2), 66.119(3), 345.28(5), 345.38, and 971.08. Here, the legislature simply used the terms, "acceptance of any plea" and "accepting a plea." Conversely, it appears that the legislature has used the simple "plea acceptance" phrase in at least one other statute to refer to not guilty as well as guilty and no contest pleas. Sec. 970.03(3) (preliminary examination), for example, states that:

A plea shall not be accepted in any case in which a preliminary examination is required until the defendant has been bound over following preliminary examination or waiver thereof.

As applied to unindicted felony defendants, sec. 970.03(3), Stats., recognizes the simple rule that there may not be any kind of a plea until an information is filed after a probable cause finding and bindover.

We also believe that the "plea acceptance" terms in sec. 973.12(1), Stats., should be construed to include not guilty pleas based on the legislative history of the statute which we examined earlier. The 1965 amendment clearly resulted in the deletion of those statutory provisions permitting repeater sentencing after conviction. The state's proffered construction of sec. 973.12(1) would permit repeater sentencing of defendants who had pleaded not guilty at any time prior to sentencing. The state is essentially asking that we add to sec. 973.12(1) everything which the legislature deleted in 1965. Our task is to construe the statute, not to rewrite it by judicial fiat. See State v. Richards, 123 Wis. 2d 1, 12, 365 N.W.2d 7 (1985).

Because there was no allegation of any repeater status in the information at the time the trial courts entered Martin and Robles' not guilty pleas, we conclude the trial courts erred in subsequently allowing repeater amendments, because, as we point out in footnote 13, these cases are of first impression. We apply the holding of this opinion based on the provisions of sec. 973.12(1), Stats., only to the two cases before us and to any other cases which are presently pending in which the defendants have made the same assertions as have the defendants Martin and Robles as to timeliness of amendment and, of course, to all cases that may arise hereafter. We affirm the decisions of the court of appeals.

By the Court. — Decisions affirmed.

1 Section 973.12(1), Stats., provides in relevant part:

973.12 Sentence of a repeater. (1) Whenever a person charged with a crime will be a repeater as defined in s. 939.62 if convicted, any prior convictions may be alleged in the complaint, indictment or information or amendments so alleging at any time before or at arraignment, and before acceptance of any plea. The court may, upon motion of the district attorney, grant a reasonable time to investigate possible prior convictions before accepting a plea. If such prior convictions are admitted by the defendant or proved by the state, he shall be subject to sentence under s. 939.62 unless he establishes that he was pardoned on grounds of innocence for any crime necessary to constitute him a repeater.

2 State v. Martin, 156 Wis. 2d 399, 406-07, 456 N.W.2d 892 (Ct. App. 1990); State v. Robles, 157 Wis. 2d 55, 63-64, 458 N.W.2d 818 (Ct. App. 1990).

3 Section 971.29, Stats., which generally regulates amendments to criminal charging documents, provides:

971.29 Amending the charge. (1) A complaint or information may be amended at any time prior to arraignment without leave of the court.

(2) At the trial, the court may allow amendment of the complaint, indictment or information to conform to the proof where such amendment is not prejudicial to the defendant. After verdict the pleading shall be deemed amended to conform to the proof if no objection to the relevance of the evidence was timely raised upon the trial.

(3) Upon allowing an amendment to the complaint or indictment or information, the court may direct other amendments thereby rendered necessary and may proceed with or postpone the trial.

4 It would appear that the state implicitly agrees with the court of appeals' decision in Martin that sec. 971.29, Stats., the statute generally governing amendments to criminal charging documents, does not directly control the timing of repeater amendments.

5 Section 973.12(1) is not ambiguous. We undertake an historical analysis only for the purpose of demonstrating that the legislative history makes clear that no repeater charge can be added after any plea. While legislative history cannot be used to demonstrate that a statute unambiguous on its face is ambiguous, there is no converse rule that statutory history cannot be used to reinforce and demonstrate that a statute plain on its face, when viewed historically, is indeed unambiguous.

6 Section 4738, Stats. 1878. Three separate statutory sections actually governed repeater allegations and differentiated between the type of prior offense committed. See R.S. 1878, secs. 4736-738.

7 See Secs. 1 and 2, ch. 35, Laws of 1919. See also Spoo v. State, 219 Wis. 285, 291-93, 262 N.W. 696 (1935).

8 Section 4738a, Investigations after conviction; new issue as to former conviction, Stats. 1919, provided:

Investigations after conviction; new issue as to former conviction. Section 4738a. If such former conviction shall not have been charged in the information, indictment or complaint, then, after a plea of guilty is entered, or a verdict of guilty returned by the jury, and before sentence is passed, the court may ascertain in every case whether the defendant has been previously convicted of any offense in any court. For that purpose the defendant may be photographed and measured and all data taken necessary to his identification by means of identification bureaus and other records of crime. It shall be the duty of the district attorney and sheriff of the county to aid in such investigation, and the court may order the necessary disbursements thereby incurred to be paid in the same manner as the fees of witnesses upon the trial. After such investigation the district attorney may in writing charge the defendant with such former conviction, and if the defendant denies such charge, the court shall proceed promptly to try the issue thereby formed, and, if demanded by the defendant, shall impanel a jury therefor. [1919 c. 35 s. 2]

9 Section 359.12(2), established by Sec. 171, ch. 631, Laws of 1949.

10 Section 359.12(2), Stats. 1949, also provided that" [i]f sentence has already been passed but execution thereof has not commenced before the court is informed that the defendant is a repeater, the court may set aside such sentence and resentence the defendant under this section."

11 Section 959.12 was renumbered to sec. 973.12 by ch. 255, Laws of 1969.

12 We note that unindicted felony defendants, such as Martin and Robles, are arraigned and tried on the charges set forth in the information and not the complaint. See State v. Woehrer, 83 Wis. 2d 696, 700-01, 266 N.W.2d 366 (1978); B. Brown, The Wisconsin District Attorney and the Criminal Case, p. 97 (1971); secs. 967.05 and 971.05. Accordingly, repeater allegations normally need only be set forth in the complaint for misdemeanants but in the information for unindicted felony defendants. See R. Donohoo, 1 Wisconsin Criminal Practice Manual, pp. 22-23 (1979).

13 Block was charged with a misdemeanor. Prior convictions were first presented during the course of a trial before the court. This court held this was error, because the question of recidivism was not to be tried with the question of guilt on the principal charge. This court held, however, that the error was harmless because there was no evidence that the submission of the recidivism information to the court in any way affected the finding of guilt on the principal charge. This court made it quite clear that the repeater allegation should have been injected into the proceeding by an appropriate statement in the information. The question posed in these cases, when a repeater charge must be alleged, was not at issue in Block. The instant cases are of first impression. Block is significant not for the reason asserted in the dissent but because it states that the defendant must be informed of the repeater charge when he is asked to plead. That question is asked by the court stating: "How do you plead? Guilty or not guilty." Thus, the court in Block makes clear that the amendment must be prior to the time of asking for the plea. In the context of the statute, whether the plea is guilty or not guilty is irrelevant. There can be no disagreement with the dissent's interpretation of Block — that the amendment provided by 1965 Wis. Laws 422 indeed "eliminated the possibility of a plea of guilty and a subsequent charge of being a repeater." Of course it did. But it is logically insupportable to conclude that because it did that, therefore it did nothing more. This is a case of the three blind men who felt only a part of the elephant and concluded not that it was an elephant but only reached a conclusion based on the separate portion of the elephant touched, i.e., that it was a snake, a tree, or a wall. Truly, the dissent sees not the forest but only the trees — and only one tree at that. Block leads to an entirely different conclusion, that reached by this opinion.

14 Both parties have placed considerable emphasis on a statement made by a member of the Judicial Council at a meeting discussing the 1965 legislation. Appearing at the end of the minutes of the Judicial Council’s meeting on March 12, 1965, the same day the first draft of the amendment was submitted, is the following observation made by Executive Secretary Henry A. Hillemann:

Judge Steffes moved approval of s. 959.12(1), as amended, which eliminates the possibility of sandbagging a defendant by charging him as a repeater after conviction or plea in the immediate charge.

While we do not consider this a definitive statement of legislative intent, it certainly demonstrates an awareness of the problems existing under the old statute.

15 We do not imply that a prosecutor is without other remedies when there are significant problems in investigating a defendant's prior convictions. It should be noted that in State v. Wald-man, 57 Wis. 2d 234, 203 N.W.2d 691 (1973), we allowed a prosecutor to dismiss a complaint, with the consent of the judge exercising appropriate discretion, after the defendant's entry of a not guilty plea and then reissue a complaint with a repeater allegation.