State v. Benjamin R. Tibbs, 2017AP2408-CR, District 4, 5/10/18 (one-judge decision; ineligible for publication); case activity (including briefs)
Why, no; no, they don’t.
Tibbs was charged with 2nd offense OWI. He challenged the counting of his prior offense, which was from California, because he’d obtained relief from that conviction under California Penal Code § 1203.4. (¶¶2-3). The order stated “[i]t is hereby ordered that the plea, verdict, or finding of guilt in the above-entitled action be set aside and vacated and a plea of not guilty be entered, and that the accusatory filing is dismissed.” (¶9). Seem pretty clear, doesn’t it?
Not so fast, says the court of appeals. The “vacated” language in the California order is not, by itself, controlling because the order also expressly states that the order is subject to several other California code provisions, and under those provisions the order does not “vacate” a conviction in the sense that this term is used in Wisconsin—namely, “[t]o nullify or cancel; make void; invalidate.” State v. Lamar, 2011 WI 50, ¶39, 334 Wis. 2d 536, 799 N.W.2d 758 (quoting Black’s Law Dictionary 1435 (9th ed. 2009)). In particular, the California order left in place many of the consequences of the conviction, including consideration of the conviction in subsequent charging. Because the California conviction is not “nullified” in the way Wisconsin law requires, the conviction can be counted. (¶¶7-11).
The court distinguishes State v. List, 2004 WI App 230, ¶¶9-10, 277 Wis. 2d 836, 691 N.W.2d 366, which Tibbs reads as barring Wisconsin courts from considering another state’s laws in determining whether a prior offense in the other state counts as a “conviction” under the applicable Wisconsin statutory provisions. List didn’t address what Wisconsin courts should do when faced with an out-of-state order that expressly provides that the order is subject to specified code provisions, such as the California order here. Further, in State v. Carter, 2010 WI 132, 330 Wis. 2d 1, 794 N.W.2d 213, the supreme court looked to Illinois law to determine whether an Illinois “‘zero tolerance’ suspension[]” was a “determination[] by an authorized administrative tribunal that [the defendant] has violated or failed to comply with the law” and, therefore, was a “conviction[]” under Wisconsin law. See also State v. Jackson, 2014 WI App 50, ¶14, 354 Wis. 2d 99, 851 N.W.2d 465 (“Carter instructs that we are to determine whether the out-of-state law … ‘prohibits conduct specified in [the applicable Wisconsin statute]’” (quoting Carter, 330 Wis. 2d 1, ¶45) (emphasis added)). (¶¶12-15).
