00-0889 State v. Davis

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“This interpretation of Wis. Stat. § 971.11(7) granting a circuit court the discretion to dismiss a criminal case with or without prejudice best serves the legislative purposes: …We further agree with the court of appeals that to interpret § 971.11(7) as requiring dismissal of a criminal case only without prejudice would deprive an inmate of prompt disposition of the case, which is the very purpose of § 971.11. …

“Because the defendant in the present case properly requested a prompt disposition of his criminal case pursuant to Wis. Stat. § 971.11, we conclude that the State’s failure to bring the case on for trial within the 120-day time period set forth in § 971.11(2) permits the circuit court under § 971.11(7) to exercise its discretion to dismiss the criminal case with or without prejudice.”

However, we conclude that the circuit court did not properly exercise its discretion in this case because it did not consider dismissal without prejudice before ordering dismissal with prejudice.

“In exercising its discretion to dismiss a criminal case with or without prejudice for the State’s failure to bring the case on for trial within the time period set forth in Wis. Stat. § 971.11(7), a circuit court should consider a number of factors including, but not limited to, the following: the reasons for and the length of the delay in bringing the criminal case on for trial; whether the nature of the case makes it unreasonable to expect adequate preparation within the statutory time period; an accused’s conduct contributing to the delay; an accused’s waiver of the statutory right to prompt disposition; the harm to an accused resulting from the delay, such as anxiety and concern; the effect of the delay on an accused’s legal defenses; the effect of the delay on the programs and movement within the institutions available to an accused; the effect of the delay on the orderly rehabilitation process of an accused within the Department of Corrections; the effect of the delay on an accused’s concurrent sentencing possibilities; the effect of the delay on an accused’s possible transfer to a less secure facility; the effect of the delay on an accused’s opportunity for parole; the effect of the delay on the transfer of the accused to another institution; the effect of the delay and dismissal on the public interest in the prompt prosecution of crime; and the effect of the delay and dismissal on the victim. By balancing these and other factors, the circuit court will not necessarily produce the same result in every case.”

Reversed and remanded to the circuit court.

Appealed from the Court of Appeals; Abrahamson, Ch. J.

Attorneys:

For Appellant: Michael R. Klos, James E. Doyle, Madison

For Respondent: Jane Krueger Smith, Oconto Falls