De novo preliminary hearings not allowed

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“Because Wis. Stat. Sec. 970.04 lays out the only scenario in which the legislature has recognized a statutory right to a second preliminary examination on the same charge, we reject Gillespie’s contention that the circuit court erred in denying his request for a de novo preliminary hearing.” Hon. Neal Nettesheim Wisconsin Court of Appeals

A criminal defendant has no right to a de novo preliminary hearing, the Wisconsin Court of Appeals held on Jan. 5.

Following a preliminary hearing, a circuit court commissioner found probable cause to believe that Eric D. Gillespie had committed a felony and bound him over for trial. Gillespie then moved for a de novo preliminary hearing before the circuit court, citing sec. 757.69(8). Kenosha County Circuit Court Judge Wilbur W. Warren denied the motion, instead conducting a review based on the transcript of the preliminary hearing.

Gillespie appealed, but the court of appeals affirmed in a decision by Judge Neal Nettesheim.

Section 757.69 provides in relevant part: "(1)(b) … a circuit court commissioner employed on a full-time basis may conduct the preliminary examination and arraignment and, with the consent of both the state and the defendant, accept a guilty plea. …

(8) Any decision of a circuit court commissioner shall be reviewed by the judge of the branch of court to which the case has been assigned, upon motion of any party.

Any determination, order, or ruling by a circuit court commissioner may be certified to the branch of court to which the case has been assigned, upon a motion of any party for a hearing de novo."

Gillespie argued that the second sentence of subsec. (8) entitled him to a de novo hearing, but the court disagreed, citing sec. 970.04. That section provides, "If a preliminary examination has been had and the defendant has been discharged, the district attorney may file another complaint if the district attorney has or discovers additional evidence."

The court concluded that this statute, as the more specific statute governing the circumstances under which a second preliminary examination may occur, controls over sec. 757.69(8), the more general statute relating to the powers of a court commissioner.

The court reasoned, "Wisconsin Stat. Sec. 757.69 is a part of Wis. Stat ch. 757, entitled ‘General Court Provisions.’ The statute itself, as the title recites, is a compilation of the powers and duties of circuit court commissioners. The analysis of the statute by the Legislative Reference Bureau confirms this, stating that the purpose of the bill creating the statute was, in part, to consolidate all of the powers and duties of court commissioners into one chapter of the statutes. In comparison, Wis Stat. ch. 970 is part of Wisconsin’s Criminal Procedure Code, which governs all criminal proceedings. See Wis. Stat. Sec. 967.01. Wisconsin Stat Secs. 970.03 to 970.05 of the Criminal Procedure Code govern the procedures relating to preliminary hearings. Immediately following sec. 970.03, the statute that confers the right to a preliminary hearing, the legislature expressly addresses in sec. 970.04 the circumstances under which a second preliminary examination can be held. While the factual scenario set forth in sec. 970.04, one in which the defendant has been discharged and a new complaint filed, is different from that presented in Gillespie’s case, it nevertheless reveals that the legislature had the opportunity to address a second examination in Gillespie’s situation and chose not to do so (cites omitted)."

The court also noted that the Wisconsin Supreme Court has held that a motion to dismiss is the proper procedure for obtaining circuit court review of a court commissioner’s bindover ruling and that such review is limited to a transcript of the preliminary examination. State ex rel. Dowe v. Circuit Court for Waukesha County, 184 Wis. 2d 724, 729, 731, 516 N.W.2d 714 (1994).

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The court concluded that, the legislature’s enactment of sec. 757.69(8) was not aimed at overturning this precedent, because nothing in the legislative history suggests any such intent.

The court concluded, "Because Wis. Stat. Sec. 970.04 lays out the only scenario in which the legislature has recognized a statutory right to a second preliminary examination on the same charge, we reject Gillespie’s contention that the circuit court erred in denying his request for a de novo preliminary hearing."

Accordingly, the court affirmed, and remanded for further proceedings.

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David Ziemer can be reached by email.