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COURT OF APPEALS DECISION DATED AND RELEASED February 13, 1997 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0581-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ROBERT E. SALLIE,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Dane County: ROBERT A. DE CHAMBEAU, Judge.
Affirmed.
Before Eich, C.J.,
Dykman, P.J., and Roggensack, J.
PER
CURIAM. Robert Sallie appeals from a judgment convicting him
of armed robbery and attempted armed robbery.
He also appeals from an order denying postconviction relief. The issue is whether the trial court erred
by denying Sallie's motion to withdraw his no contest plea. Because we conclude that the trial court
properly denied the motion, we affirm.[1]
The complaint alleged
that on November 23, 1994, Sallie entered a store, grabbed money from the cash
register and ran. A store employee gave
chase and knocked him down. Sallie then
got to his feet, threatened the employee with a knife, and escaped with the
cash.
The complaint also
alleged that on November 30, 1994, Sallie entered another store and grabbed
money from a cash register. This time,
a store employee grabbed his hand, knocking out some or all of the money he
grabbed. After pulling loose, Sallie
pulled a knife on another store employee blocking his way and escaped. The State charged Sallie with attempted
armed robbery for this incident because it was unclear whether he escaped with
any money.
The witnesses to each of
these incidents provided testimony at Sallie's preliminary hearing that was
consistent with the allegations in the complaint. At Sallie's plea hearing, Sallie stipulated that the court could
use the complaint and the preliminary hearing testimony to establish a factual
basis for his no contest plea.
Sallie then moved to
withdraw his plea, contending that the court accepted it without the adequate
factual basis that § 971.08(1)(b), Stats.,
requires. In both the November 23 and
November 30, 1994 incidents, Sallie claimed that the facts showed that he did
not take or attempt to take property by using or threatening to use a
weapon. Both times, according to
Sallie, the robbery or the attempt was completed before he drew the knife. Therefore, in his view, the facts showed
only misdemeanor theft and attempted misdemeanor theft. The trial court rejected Sallie's
contention, resulting in this appeal.
Section 943.32(1), Stats., provides in relevant part that
one commits armed robbery by using or threatening to use a dangerous weapon to
compel the owner of property to acquiesce in the taking or carrying away
of it. The crime does not occur without
a carrying away. Moore v. State,
55 Wis.2d 1, 5-6, 197 N.W.2d 820, 822-23 (1972). Therefore, Sallie cannot reasonably argue that there was no
factual basis for armed robbery merely because he did not threaten to use or
actually use the knife while taking money from the registers. The crime was not complete until he carried
it away, or attempted to do so. Under
any reasonable view of the evidence, when he displayed the knife within seconds
of grabbing the money and after being chased and knocked down, he was still
carrying away or attempting to carry away the money. Therefore, in both instances the trial court properly concluded
that the record set forth a factual basis for the charge.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.