On Point: f. Custody requirement

State v. Michael J. Viezbicke, 2021AP2172, District 2, 10/12/22 (one-judge decision; ineligible for publication); case activity (including briefs)

Viezbicke filed a postconviction motion under § 974.06 challenging his convictions in a 2017 misdemeanor case. The court of appeals holds the motion was barred because he is no longer in custody under the sentence imposed in that case.

State v. David D. Austin, 2011AP1042, District 1, 4/10/12

court of appeals decision (1-judge, not for publication); pro se; case activity

Because Austin was no longer in custody under the conviction he sought to collaterally attack pursuant to § 974.06, the court lacked jurisdiction to entertain his motion. It is not enough that he was in custody under some sentence, rather than the particular conviction he sought to attack:

¶12      Austin submits that the wording of Wis.

State v. Jeffery G. Sutton, 2012 WI 23, reversing summary order of court of appeals; for Sutton: Kaitlin A. Lamb, Colleen Ball, SPD, Milwaukee Appellate;  for amicus, WACDL: Robert R. Henak; case activity

Although presented with an unpreserved but seemingly meritorious issue (defective jury-waiver colloquy) on § 809.32 no-merit review, the court of appeals nonetheless accepted counsel’s no-merit report, thereby affirming Sutton’s conviction, and instructed him to seek relief pursuant to § 974.06 even though he was no longer in custody and the remedy was thus illusory.

court of appeals decision (1-judge; not for publication); pro se; Resp. Br.

Custody Requirement, sec. 974.06

¶7        However, Olson is barred from collaterally attacking his criminal conviction under Wis. Stat. § 974.06 because he is no longer “‘in custody under sentence of a court.’”  See State v. Theoharopoulos, 72 Wis. 2d 327, 329, 240 N.W.2d 635 (1976) (quoting § 974.06 and recognizing that circuit court lacks jurisdiction to consider a motion for postconviction relief brought under § 974.06 if the defendant has completed his sentence). 

State v. Donald Mentzel, 218 Wis. 2d 734, 581 N.W.2d 581 (Ct. App. 1998)
For Mentzel: Raymond M. Dall’Osto

Issue/Holding:

We agree with the logic of Napoles. For purposes of § 974.06, Stats., the reality of a probationary status is that it results directly from the trial court’s consideration of dispositional alternatives at a sentencing hearing. Subject to any other bars, we conclude that all defendants on probation have standing to pursue postconviction relief under § 974.06.