Criminal Procedure — statute of limitations — theft

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Wisconsin Court of Appeals

Criminal

Criminal Procedure — statute of limitations — theft

Under sec. 939.74(2)(b), the one-year discovery rule is triggered only by actual discovery of the crime, not when the victim should with the exercise of reasonable diligence discovered the loss.

“If the legislature intended the one-year extension period to be triggered not only if a loss is discovered but also if it ‘should have been discovered,’ one would expect the legislature at some point would have written such language into the statute. See, e.g., WIS. STAT. § 893.55(1m) (requiring commencement of an action against a health care provider ‘within the later of: (a) Three years from the date of the injury, or (b) One year from the date the injury was discovered or, in the exercise of reasonable diligence should have been discovered,’ but not later than five years following the act or omission (emphasis added)); see also WIS. STAT. §§ 402.725(2), 411.506(2), 893.51(2), 893.80(1p). The legislature, however, has not done so, and ‘[w]e should not read into the statute language that the legislature did not put in.’ State v. Matasek, 2014 WI 27, ¶20, 353 Wis. 2d 601, 846 N.W.2d 811 (quoting Brauneis v. LIRC, 2000 WI 69, ¶27, 236 Wis. 2d 27, 612 N.W.2d 635). Thus, we decline to rewrite WIS. STAT. § 939.74(2)(b) to add words or requirements which the legislature itself did not choose to include.”

Affirmed.

Recommended for publication in the official reports.

2013AP2491-CR State v. Simmelink

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

Attorneys: For Appellant: Eippert, Christopher M., Sheboygan; For Respondent: Balistreri, Thomas J., Madison; DeCecco, Joseph R.. Sheboygan