State v. Johnson
1997 Wisc. LEXIS 14, 558 N.W.2d 375, 207 Wis. 2d 239 (1997)
Rule of Law:
In Wisconsin, asportation (the actual carrying away or movement of property) is an essential element of the crime of armed robbery, and without proof of this element, a conviction for armed robbery cannot be sustained, even upon a guilty plea.
Facts:
- On February 26, 1994, Herbert Ball was sitting in his car on a street in front of his home.
- Robert Johnson approached Ball while armed with a handgun.
- Johnson ordered Ball out of his car, and Ball complied, leaving his keys in the ignition.
- Johnson then entered Ball's car and sat in the driver's seat.
- The car either stalled, shut off, or would not start, and consequently, it did not move.
- Johnson exited the car and was subsequently arrested.
Procedural Posture:
- The State charged Robert Johnson with armed robbery and attempted armed robbery.
- Johnson pleaded guilty to both armed robbery and attempted armed robbery.
- The Circuit Court of Milwaukee County, presided over by Circuit Judge Diane S. Sykes, convicted Johnson of both charges and sentenced him.
- Johnson filed a postconviction motion in the circuit court seeking to withdraw his guilty plea and vacate his armed robbery conviction, alleging a lack of factual basis for the asportation element.
- The circuit court denied Johnson's postconviction motion.
- Johnson appealed the denial of his motion to the Wisconsin Court of Appeals (appellant), which reversed his armed robbery conviction and allowed him to withdraw his guilty plea.
- The State of Wisconsin (appellant) sought review of the Court of Appeals' decision from the Wisconsin Supreme Court.
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Issue:
Does a conviction for armed robbery require proof of asportation (the actual movement or carrying away of the property), even if the property is an automobile and the defendant gained control over it at gunpoint?
Opinions:
Majority - William A. Bablitch
No, a person may not be convicted of armed robbery if the property at issue, such as an automobile, does not move. The Wisconsin Supreme Court reaffirms that asportation, meaning 'carrying away,' is an indispensable element of armed robbery under Wis. Stat. § 943.32, as established in its 1972 decision in `Moore v. State`. The Court notes that the legislature's silence over the 24 years since `Moore` indicates its acquiescence to this judicial interpretation. The Court declines the State's invitation to either overrule `Moore` or create an 'automobile exception' to the asportation requirement, finding no compelling justification for such a change. The asportation requirement provides a clear 'bright line test' that helps lower courts distinguish between armed robbery, attempted armed robbery, and other lesser-included offenses like theft. Since the State conceded that Ball's automobile or its keys were never moved, even slightly, there was no factual basis to support the asportation element, thus rendering Johnson's guilty plea for armed robbery a 'manifest injustice' warranting its withdrawal.
Analysis:
This case reinforces the principle of legislative acquiescence, demonstrating that when a legislature fails to amend a statute following a judicial interpretation, courts often presume legislative approval of that interpretation. It also underscores the judiciary's reluctance to create exceptions to well-established legal elements, particularly when those elements serve to provide clear distinctions between criminal offenses. The decision solidifies asportation as a critical, non-negotiable element of robbery in Wisconsin, ensuring that charges of armed robbery require actual movement of the property, however slight, rather than merely an attempt to take possession.
