court of appeals decision (1-judge; not for publication); pro se; Resp.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). Here, it is undisputed that at the time Olson filed his motion on September 25, 2009, his sentences had been completed.[5] Therefore, the circuit court lacked competency[6] to consider Olson’s motion under Wis. Stat. § 974.06.
[5] Olson is currently serving a different prison sentence for other crimes. That, however, does not qualify him to seek relief from his convictions under Wis. Stat. § 974.06 in the instant case. See State v. Bell, 122 Wis. 2d 427, 430-31, 362 N.W.2d 443 (Ct. App. 1984) (under § 974.06, a court has competency to proceed only when the claimant is still “in custody under the sentence he desires to attack”).
[6] As the State notes, many similar cases involving the application of Wis. Stat. § 974.06 speak in terms of a loss of jurisdiction. However, it is more accurate to say that a circuit court loses competency to proceed. See Green County Dep’t of Human Servs. v. H.N., 162 Wis. 2d 635, 655-56, 469 N.W.2d 845 (1991).
The court’s quote to, and reliance on, Bell may be a bit misleading: if the “different prison sentence” were running consecutive to the challenged conviction, then Olson would be “in custody” under it. Garlotte v. Fordice, 515 US 39 (1995):
… Following Peyton, we do not disaggregate Garlotte’s sentences, but comprehend them as composing a continuous stream. We therefore hold that Garlotte remains “in custody” under all of his sentences until all are served, and now may attack the conviction underlying the sentence scheduled to run first in the series.
But Olson has indeed completely discharged from custody on the challenged case, so the quoted principle is inapplicable.
