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01-0507 State v. Jennings

By: dmc-admin//December 26, 2001//

01-0507 State v. Jennings

By: dmc-admin//December 26, 2001//

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“The State asserts that Jennings was formally accused and the prosecution commenced with the timely filing of the complaint and the issuance of an order to produce. It argues that an order to produce is sufficiently like a warrant or a summons to commence a prosecution where, as here, Jennings was in the custody of a state correctional facility when the order to produce was issued. Thus, it contends that an order to produce is the equivalent of an arrest warrant which meets the requirement of the statute. Again, we are not convinced.

“Wisconsin Stat. § 939.74(1) is quite precise as to which documents must be issued, found or filed to commence a felony prosecution; i.e., a warrant, summons, indictment or information. No mention is made of a complaint or an order to produce. An order to produce can be used in so many contexts for so many purposes, both civil and criminal, it does not reasonably follow that it is the equivalent to an arrest warrant or, for that matter, a summons. The State knew where Jennings was housed. Under Wis. Stat. § 968.04(2)(a),3 the State could have quite readily complied with the calls of § 939.74 by issuing a summons (or a warrant), with the order to produce. No reason appears in the record why this simple scheme was not followed. Nor can we divine any statutory or case law authority to support the State’s theory of equivalency. …

“Here, Wis. Stat. § 939.74(1) is the more specific statute, and must control over the more general and permissive language of Wis. Stat. §§ 967.05(1) and 968.02(2). Section 939.74(1) does not permit the action to commence by the filing of a complaint and an order to produce. Rather, it specifically requires that a warrant or a summons be issued, an indictment be found, or an information be filed. The district attorney failed to comply with the dictates of this statute within six years of the crime.”

Judgment and order reversed.

Recommended for publication in the official reports.

Dist I, Milwaukee County, Konkol, J., Wedemeyer, P.J.

Attorneys:

For Appellant: Stephen M. Compton, Delavan

For Respondent: Robert D. Donohoo, Milwaukee; Sandra L. Tarver, Madison

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