Criminal Procedure — due process — notice

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Wisconsin Court of Appeals

Criminal

Criminal Procedure — due process — notice

Even though the complaint alleged incidents occurring 12 and 15 years earlier, without specific dates, the complaint provided sufficient notice to the defendant.

“In considering these two factors, we cannot ignore our supreme court’s fairly recent decision in State v. McGuire, 2010 WI 91, 328 Wis. 2d 289, 786 N.W.2d 227. The defendant in McGuire was charged with five counts of indecent behavior with a child occurring between 1966 and 1968. Id., ¶1. The issue before the court which is relevant to this case was whether the defendant’s due process rights were violated because approximately thirty-six years had passed between the offenses and the charges. Id., ¶28. The defendant argued that his defense had been prejudiced because key witnesses had died and evidence had been destroyed. Id., ¶44. The court first observed that ‘[t]he statute of limitations is the principal device … to protect against prejudice arising from a lapse of time between the date of an alleged offense and an arrest.’ Id., ¶45 (citations omitted). The court then held that a defendant claiming his due process rights have been violated by delay ‘must show “(1) actual prejudice as a result of [the] delay; and (2) [that] the delay arose out of an improper purpose, [such as to] give the State a tactical advantage over the defendant.”’ Id. (citation omitted).”

Reversed and Remanded.

Recommended for publication in the official reports.

2013AP1531-CR State v. Kempainen

Dist. II, Sheboygan County, Bourke, J., Gundrum, J.

Attorneys: For Appellant: Moeller, Marguerite M., Madison; For Respondent: Bastil, Samantha R., Sheboygan; For Respondent: Hoff, Casey J., Sheboygan; Mroczkowski, Melissa Louise, Sheboygan