State ex rel. Huser v. Rasmussen, 76-759
| Decision Date | 02 October 1978 |
| Docket Number | No. 76-759,76-759 |
| Citation | 85 Wis.2d 441,270 N.W.2d 62 |
| Parties | STATE of Wisconsin ex rel. Joseph J. HUSER, Petitioner-Appellant, v. Herman RASMUSSEN, Sheriff of Green Lake County, Respondent. |
| Court | Wisconsin Supreme Court |
(on motion for rehearing).
Appellant filed a motion for rehearing requesting that this court reconsider its holding that d-cocaine is chemically equivalent to l-cocaine. Respondent opposes rehearing but agrees that the court's holding is too broad. Both parties point out that the controlled substances board has thus far declined to include d-cocaine in the Controlled Substances Act because its abuse potential has not been determined. Schedule II controlled substances are those which the controlled substances board has found to have a high potential for abuse. Sec. 161.15, Stats. The record on appeal does not contain proof of the abuse potential of d-cocaine. It is for the legislature to determine whether d-cocaine can be listed as a Schedule II controlled substance without such proof. For this reason the language in this opinion which holds that d-cocaine is chemically equivalent to l-cocaine is withdrawn. This includes the portion of the opinion which begins with the third paragraph at page 612 and ends at page 613, of 84 Wis.2d, first paragraph at page 292 of 267 N.W.2d, just above "RESTRICTION OF CROSS-EXAMINATION."
Nonetheless, the order of the circuit court must still be affirmed. The criminal proceedings against the appellant had only reached the preliminary examination stage. The issue was whether probable cause existed to bind the defendant over for trial. The trial court was only required to determine that a reasonable probability existed that a crime had been committed and that the defendant had committed it. State v. Berby, 81 Wis.2d 677, 683, 260 N.W.2d 798 (1978). If competent evidence exists on which the trial court could have based a finding of probable cause, this court must sustain that finding. Id. at 684, 260 N.W.2d 798.
In State v. Wind, 60 Wis.2d 267, 208 N.W.2d 357 (1973), this court found that a nonspecific test for marijuana was not itself sufficient to support a conviction. However, the court said:
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People v. Aston
...(1981) 99 Ill.App.3d 925, 55 Ill.Dec. 600, 426 N.E.2d 925; Leavitt v. State (Fla.App.1979) 369 So.2d 993; State ex rel. Huser v. Rasmussen (1978) 85 Wis.2d 441, 270 N.W.2d 62, on rehg. from 84 Wis.2d 600, 267 N.W.2d 285; State v. McNeal (1980) 95 Wis.2d 63, 288 N.W.2d 874.) We take issue wi......
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T.R.B., In Interest of
...the defendant has probably committed it." State ex rel. Huser v. Rasmussen, 84 Wis.2d 600, 605, 267 N.W.2d 285 (1978), reh. den. 85 Wis.2d 441, 270 N.W.2d 62. See also State v. Williams, 104 Wis.2d 15, 22-23, 310 N.W.2d 601 (1981), citing Vigil v. State, 76 Wis.2d 133, 141, 250 N.W.2d 378 (......
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State ex rel. Huser v. Rasmussen
... Page 285 ... 267 N.W.2d 285 ... 84 Wis.2d 600 ... STATE of Wisconsin ex rel. Joseph J. HUSER, Petitioner-Appellant, ... Herman RASMUSSEN, Sheriff of Green Lake County, Respondent ... No. 76-759 ... Supreme Court of Wisconsin ... Submitted on Briefs May 3, 1978 ... Decided June 30, 1978 ... Rehearing Denied Oct. 2, 1978 ... See 270 N.W.2d 62 ... Page 288 ... [84 Wis.2d 603] This is an appeal from an order dismissing a petition for habeas corpus. The ... ...
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State v. Dorcey, 79-1171-CR
...compound, derivative or preparation thereof ....," and clearly includes l-cocaine. Our supreme court in State ex rel. Huser v. Rasmussen, 85 Wis.2d 441, 442, 270 N.W.2d 62-63 (1978), excluded d-cocaine from the definition in sec. 161.16(4). Defendant concedes that d-cocaine, unlike l-cocain......