A jury found Dusan D. Cvorovic guilty of attempted fourth-degree sexual assault. A subsequent judgment set aside his conviction on the grounds that Wisconsin law does not recognize that crime. The state appeals, arguing that sec. 939.32(3), Stats., authorizes prosecution of such an offense but even if it does not, any error was waived by Cvorovic's failure to object below. We conclude that "attempted fourth-degree sexual assault" is not an offense recognized under Wisconsin law. We also conclude that the waiver doctrine does not permit conviction for a nonexistent crime. We therefore affirm.
Cvorovic was charged with second-degree sexual assault and attempted second-degree sexual assault. Trial was had to a jury. At the instruction conference, Cvorovic requested that fourth-degree sexual assault and *632attempted fourth-degree sexual assault also be submitted to the jury for its consideration. The state did not object and the jury was instructed on all four charges. The jury found Cvorovic guilty of attempted fourth-degree sexual assault and not guilty of second-degree sexual assault. Judgment on the verdict was granted.
Cvorovic then sought to have the conviction set aside on the grounds that Wisconsin law does not recognize the offense of attempted fourth-degree sexual assault. After arguments and briefs, the trial court granted Cvorovic's motion and dismissed the information upon its merits. The state appeals.
Section 939.32, Stats., governs "attempt" crimes.1 Whether attempted fourth-degree sexual assault is a *633prosecutable offense under sec. 939.32 is a matter of statutory interpretation. Statutory interpretation presents a question of law which we review de novo. State v. Michels, 141 Wis. 2d 81, 87, 414 N.W.2d 311, 313 (Ct. App. 1987).
The state contends that nothing in sec. 939.32, Stats., indicates that it exhaustively enumerates the offenses which may he prosecuted as attempt crimes.2 Rather, the state argues, subsecs. (1) and (2) of the statute merely delineate the penalties for various attempt offenses. Subsection (3), the state asserts, defines the crime of attempt and is "broadly inclusive."
We decline to give sec. 939.32, Stats., so strained a reading. Subsections (1) and (2) state in plain terms which offenses may be prosecuted as attempt crimes. In terms as plain, subsec. (3) defines the word "attempt." If the statutory language is unambiguous, we are restricted to its plain meaning. Michels, 141 Wis. 2d at 93, 414 N.W.2d at 315.
Moreover, in contrast to the phrasing of most criminal statutes ("Whoever does 'X' is guilty of/subject to 'Y' "), subsec. (3) contains no language which in any way suggests that "attempt" alone is subject to some sort of penalty. The elements of attempt described in subsec. (3) *634are not in themselves sufficient for liability to attach. Rather, subsec. (3) must be read in tandem with either subsec. (1) or (2). In other words, while the subsec. (3) elements must be present, the actor must first be eligible for penalty under either subsec. (1) or (2). We therefore conclude that subsecs. (1) and (2) unambiguously enumerate all the offenses which may be prosecuted as "attempts."
Next, the state argues in the alternative that even if sec. 939.32, Stats., does not recognize attempted fourth-degree sexual assault, the conviction for that offense nonetheless should be upheld. It contends that by submitting the charge to the jury, Cvorovic invited — and thus waived — any error. We disagree.
The state's argument is facially logical. The flaw in it, however, is that Cvorovic cannot be punished for a nonexistent crime: the lack of subject matter jurisdiction is fatal to such a result.
A court does not have subject matter jurisdiction over a nonexistent offense. State v. Christensen, 110 Wis. 2d 538, 542, 329 N.W.2d 382, 383 (1983). Criminal subject matter jurisdiction, conferred by law, is the power of the court to inquire into the charged crime, to apply the applicable law and to declare the punishment. Mack v. State, 93 Wis. 2d 287, 294, 286 N.W.2d 563, 566 (1980). It cannot be conferred upon the court by consent. Kelley v. State, 54 Wis. 2d 475, 479, 195 N.W.2d 457, 459 (1972). Nor can it be waived. Id. Accordingly, despite the jury verdict, the trial court was precluded from entering a judgment of conviction against Cvorovic.
In addition, we find persuasive a decision of the Fifth Circuit Court of Appeals which arose on facts similar to those before us. Adams v. Murphy, 653 F.2d 224 (5th Cir. 1981), cert. denied, 455 U.S. 920 (1982). Faced *635with the state's argument that the defendant had invited the error, the court stated:
[Defense] counsel did not merely invite, he demanded the erroneous charge given.
Even so, [the defendant] must go free . . .. [0]rily a legislature can denounce crimes . . .. Nowhere in this country can any man be condemned for a nonexistent crime.
Id. at 225 (footnote omitted).
Having determined that "attempted fourth-degree sexual assault" is an offense unrecognized in Wisconsin jurisprudence, we must affirm the judgment. Cvorovic cannot be punished for a nonexistent crime.
By the Court. — Judgment affirmed.