State ex rel. Klinkiewicz v. Duffy
| Court | United States State Supreme Court of Wisconsin |
| Writing for the Court | CURRIE |
| Citation | 35 Wis.2d 369,151 N.W.2d 63 |
| Decision Date | 06 June 1967 |
| Parties | STATE ex rel. Betty KLINKIEWICZ, Petitioner-Appellant, v. F. Ryan DUFFY, Jr., Judge of County Court, Branch 12, Milwaukee County, Respondent-Respondent, Hugh R. O'Connell, Dist. Atty., Milwaukee County, Respondent. |
Page 63
v.
F. Ryan DUFFY, Jr., Judge of County Court, Branch 12,
Milwaukee County, Respondent-Respondent,
Hugh R. O'Connell, Dist. Atty., Milwaukee County, Respondent.
Meldman & Kahn, Milwaukee, John T. Lynch, Milwaukee, of counsel, for appellant.
Bronson C. La Follette, Atty. Gen., Hugh R. O'Connell, Dist. Atty., David J. Cannon, Asst. Dist. Atty., Robert P. Russell, Corp. Counsel, Joseph J. Esser, Asst. Corp. Counsel, Milwaukee County, Milwaukee, for respondent-respondent.
CURRIE, Chief Justice.
The following issues are presented on this appeal:
(1) Whether a magistrate, who adjourns a preliminary examination for more than 10 days without consent of the accused contrary to sec. 954.05(1), Stats., loses jurisdiction.
(2) Whether prohibition was the proper remedy to be employed by petitioner.
Interpretation of Sec. 954.05(1)
, Stats. Sec. 954.05(1)
, Stats., provides:
'Adjournments of hearing. (1) the magistrate may adjourn the examination from time to time, but not exceeding 10 days at one time without the consent of the defendant, * * *' (Italics supplied.)
[35 Wis.2d 373]
Page 66
A preliminary examination since 1849 in this state has been considered an essential step in the criminal process involving felonies. 1 The purpose of the preliminary examination is to provide an expeditious means for the discharge of an accused if it does not appear probable that he has committed the crime or crimes for which he is being held. 2 The right to such an examination stems purely from statute and is not considered a constitutional right. 3 In Wolke v. Flemming 4 this court said:'* * * a preliminary examination is statutory and compliance with the statute is a requisite to jurisdiction.'
In Odell v. Burke 5 the court of appeals for the 7th Circuit made peripheral reference to sec. 954.05(1), Stats., and stated that an indefinite adjournment of a preliminary examination because of illness of the judge was a violation of the statute. 6 Odell, supra, appears to be the only relevant decision relating to the 10-day prohibition of the statute in question, as this court does not appear to have ever considered it.
Of aid in arriving at a determination of the question presently before this court is State ex rel Micheel v. Vamos, 7 a decision by the Ohio supreme court. Ohio at [35 Wis.2d 374] the time of the decision had a statutory provision similar to sec. 954.05(1), Stats. . sec. 2937.02, Ohio Revised Statutes, 'Procedure before court or magistrate,' in part provided:
'* * * (u)pon application on behalf of the prosecution or the defense, and for good cause shown, the court or magistrate shall postpone the examination for a reasonable time, not to exceed the days except by the consent of both parties.'
Micheel, the appellant therein, was arrested and released on bail conditioned upon his appearance before a justice of the peace who was to conduct the preliminary examination. The preliminary examination was thereafter postponed without Micheel's consent for a period of more than 10 days. He thereupon petitioned for the issuance of a writ of prohibition commanding the justice of the peace to desist from exercising further jurisdiction in the matter. The court granted the writ stating:
'We are of opinion that by virtue of the language of the statute a justice of the peace loses jurisdiction both of the subject matter and of the person of the accused, by granting a postponement without the accused's consent for a period longer than ten days after he is brought before such justice.' (Emphasis supplied.) 8
We are convinced that we should accord a like interpretation to sec. 954.05(1), Stats. To interpret the statute otherwise would...
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State v. Lee, Appeal No. 2019AP221-CR
...results in a loss of personal jurisdiction, which requires only a dismissal without prejudice.23 In State ex rel. Klinkiewicz v. Duffy , 35 Wis. 2d 369, 375, 151 N.W.2d 63 (1967), our supreme court observed that a dismissal based on an unlawful adjournment of the preliminary hearing "does n......
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State v. Moats, No. 88-0431-CR
...a constitutional right.' " State v. Dunn, 121 Wis.2d 389, 394, 359 N.W.2d 151 (1984) (quoting State ex rel. Klinkiewicz v. Duffy, 35 Wis.2d 369, 373, 151 N.W.2d 63 (1967)). The preliminary examination is intended to be a summary proceeding used to determine if there is probable cause to bel......
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State v. Schaefer, No. 2006AP1826-CRAC.
...Wis.2d 516, 525, 544 N.W.2d 406 (1996). The right to such an examination stems purely from statute. State ex rel. Klinkiewicz v. Duffy, 35 Wis.2d 369, 373, 151 N.W.2d 63 (1967). As noted above, Wis. Stat. § 970.03 provides a preliminary examination for the specific purpose of determining wh......
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State ex rel. Lynch v. County Court, Branch III, No. 75-807
...of the nature of the error asserted, however, prohibition remains a drastic and extraordinary remedy, State ex rel. Klinkiewicz v. Duffy, 35 Wis.2d 369, 375, 151 N.W.2d 63 (1967); State ex rel. Niedziejko v. Coffey, 22 Wis.2d 392, 401, 126 N.W.2d 96, 127 N.W.2d 14 (1964), and its invocation......
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State v. Lee, Appeal No. 2019AP221-CR
...results in a loss of personal jurisdiction, which requires only a dismissal without prejudice.23 In State ex rel. Klinkiewicz v. Duffy , 35 Wis. 2d 369, 375, 151 N.W.2d 63 (1967), our supreme court observed that a dismissal based on an unlawful adjournment of the preliminary hearing "does n......
-
State v. Moats, No. 88-0431-CR
...a constitutional right.' " State v. Dunn, 121 Wis.2d 389, 394, 359 N.W.2d 151 (1984) (quoting State ex rel. Klinkiewicz v. Duffy, 35 Wis.2d 369, 373, 151 N.W.2d 63 (1967)). The preliminary examination is intended to be a summary proceeding used to determine if there is probable cause to bel......
-
State v. Schaefer, No. 2006AP1826-CRAC.
...Wis.2d 516, 525, 544 N.W.2d 406 (1996). The right to such an examination stems purely from statute. State ex rel. Klinkiewicz v. Duffy, 35 Wis.2d 369, 373, 151 N.W.2d 63 (1967). As noted above, Wis. Stat. § 970.03 provides a preliminary examination for the specific purpose of determining wh......
-
State ex rel. Lynch v. County Court, Branch III, No. 75-807
...of the nature of the error asserted, however, prohibition remains a drastic and extraordinary remedy, State ex rel. Klinkiewicz v. Duffy, 35 Wis.2d 369, 375, 151 N.W.2d 63 (1967); State ex rel. Niedziejko v. Coffey, 22 Wis.2d 392, 401, 126 N.W.2d 96, 127 N.W.2d 14 (1964), and its invocation......