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01-1088 State v. Carlson

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

01-1088 State v. Carlson

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

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“The plain language of Wis. Stat. § 978.045 authorizes two distinct ways in which a court may appoint a special prosecutor. This is signified by the use of the word ‘or.’ Subsection (1g) states that a court may appoint a special prosecutor either on its own motion ‘or’ when a district attorney makes a request that the court do so. Carlson directs us to the sentence in the statute that authorizes the court’s appointment of a special prosecutor when it is at the request of a district attorney; this is but one of two authorized ways a court may appoint a special prosecutor. See § 978.045(1r). Carlson ignores the preceding sentence that authorizes the court to appoint a special prosecutor on its own motion.”

Thus, the court acted within its discretion when it appointed a special prosecutor to handle defendant’s refusal hearing.

And, even though defendant cannot be made entirely whole for the erroneous deprivation of his driver’s license for nineteen days, we do not believe that the nature or weight of the private interest involved compels the dismissal of the refusal charge.

“Keeping in mind the dictate that due process is ‘flexible and calls for such procedural protections as the particular situation demands,’ we hold that in this particular situation, the error was technical and nonprejudicial.”

Order affirmed.

Recommended for publication in the official reports.

Dist II, Green Lake County, McMonigal, J., Anderson, J.

Attorneys:

For Appellant: Christopher A. Mutschler, Fond du Lac

For Respondent: Daniel D. Sondalle, Princeton; Michael E. O’Rourke, Green Lake; Susan M. Crawford, Madison

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