State ex rel. Rabe v. Ferris, 80-327-W

• Decision Date: 27 June 1980
• Docket Number: No. 80-327-W,80-327-W
• Citation: 97 Wis.2d 63,293 N.W.2d 151
• Parties: STATE ex rel. David W. RABE, Petitioner-Appellant, v. William FERRIS, Sheriff, Dane County, and Bronson C. La Follette, Attorney General, Respondents.
• Court: Wisconsin Supreme Court

Page 151

293 N.W.2d 151

97 Wis.2d 63

STATE ex rel. David W. RABE, Petitioner-Appellant, v. William FERRIS, Sheriff, Dane County, and Bronson C. La

Follette, Attorney General, Respondents.

No. 80-327-W.

Supreme Court of Wisconsin.

Argued June 2, 1980.

Decided June 27, 1980.

John E. Tradewell, Asst. State Public Defender, argued, for petitioner; William F. Bauer, Asst. State Public Defender, on brief.

David J. Becker, Asst. Atty. Gen., argued, for respondents; Bronson C. La Follette, Atty. Gen., on brief.

BEILFUSS, Chief Justice.

This is an original action for a writ of habeas corpus whereby petitioner David W. Rabe seeks release from the Dane County jail pending his trial on four counts of homicide by intoxicated use of a motor vehicle contrary to sec. 940.08, Stats.

The facts, as stipulated by the parties, are substantially as follows: Petitioner Rabe has been confined in the Dane County jail awaiting trial since April 9, 1979. During this time Rabe has been unable to post the $12,000 cash bail imposed as a condition of his release pending trial.

A substantial delay in the proceedings against Rabe has resulted from the state's appeal of an order by the trial court consolidating into one the four separate counts of the offense with which he is charged. Although the conduct Rabe is alleged to have engaged in resulted in the deaths of four different persons, the trial court concluded that because all of the deaths arose out of a single automobile accident, only one count could properly be charged. It entered an order to that effect on September 13, 1979, in response to a motion brought by Rabe earlier.

On the same day as the trial court entered its order consolidating the four counts, Rabe filed a demand for a speedy trial pursuant to sec. 971.10, Stats. ¹

Five days later, on September 18, 1979, the state filed a notice of appeal, a petition for leave to appeal the nonfinal order and a motion for stay of trial court proceedings pending disposition of the appeal. Over Rabe's objection, the court of appeals granted the petition for leave to appeal and ordered the proceedings in the trial court stayed pending disposition of the appeal.

On September 30, 1979, the trial court ordered sua sponte that the stay of proceedings by the court of appeals was justification for a continuance under sec. 971.10(3), Stats., and that Rabe "shall not be released from the obligations of his bail pursuant to Section 971.10(4) of the Wisconsin Statutes if for reason of the order of the Appellate Court trial is delayed beyond the 90 day period from the date trial was demanded by (him)."

Rabe petitioned for leave to appeal this order by the trial court but his petition was denied both by the court of appeals and by this court.

In the meantime, the court of appeals certified the state's appeal from the trial court's consolidation order to this court pursuant to sec. (Rule) 809.61, Stats. This court accepted the appeal for review by order dated December 20, 1979, and, in an opinion filed on May 6, 1980, reversed the trial court's order consolidating the four counts into one. See State v. Rabe, 96 Wis.2d 48, 291 N.W.2d 809 (1980).

The sole issue now before us is whether Rabe is entitled to release from custody under sec. 971.10, Stats., because of the delay in the proceedings against him caused by the state's interlocutory appeal.

At the outset, it is important to distinguish the statutory right to a speedy trial which is at issue in this case from the constitutional right to a speedy trial which is not.

The sixth amendment to the United States Constitution provides in part: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . ."

This right is similarly guaranteed by Art. I, sec. 7 of the Wisconsin Constitution, which reads: "In all criminal prosecutions (by indictment or information) the accused shall enjoy the right . . . to a speedy public trial . . . ."

The parameters of the constitutional right and the criteria to be used in determining whether a deprivation of it has occurred have been set forth by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and by this court in Day v. State, 61 Wis.2d 236, 212 N.W.2d 489 (1973), certiorari denied, 417 U.S. 914, 94 S.Ct. 2614, 41 L.Ed.2d 218 (1974). These cases indicate that the question of whether an accused has been deprived of his constitutional right to a speedy trial is essentially an ad hoc determination to be made upon a consideration of the relevant factors, including the length of delay, the reason for the delay, whether a demand for a speedy trial was made and whether the delay resulted in prejudice to the defendant. ² If upon consideration of these factors it is determined that an accused has been denied his constitutional right to a speedy trial, the required remedy is for the charges to be dismissed and the defendant to go free. Barker v. Wingo, supra, 407 U.S. at 522, 92 S.Ct. at 2187.

The statutory speedy trial right, on the other hand, is significantly different from the constitutional right both in the manner in which a violation is determined and in the remedy afforded. Rather than requiring a case-by-case determination of whether a particular delay is justified, sec. 971.10(2), Stats., sets forth a specific period of time within which a defendant charged with a felony must be brought to trial after a proper demand is made. Although this time period may be extended by a continuance granted by the court, sub. (3) of sec. 971.10 provides that a continuance should be granted only if it is determined that the ends of justice served by it outweigh the interest of the public and the defendant in a speedy trial. In addition, instead of dismissal of the charges pending against a defendant who is denied the constitutional right to a speedy trial, the remedy afforded by sec. 971.10 is simply release from custody or from the obligations of bond pending trial.

Because Rabe claims only a violation of his statutory right to a speedy trial, we need not decide whether, in view of the circumstances before us, the delay in the proceedings against him is constitutionally impermissible. We need only decide whether the explicit time period set forth in sec. 971.10(2), Stats., has run without a valid continuance having been ordered, thereby entitling Rabe to immediate release from custody pending his trial. In our view, this question is easily answered.

Sec. 971.10(2)(a), Stats., provides that the trial of a defendant charged with a felony shall commence within 90 days of a demand for trial by any party either in writing or on the record.

While it is undisputed that Rabe made his demand for a speedy trial on September 13, 1979, and that ordinarily the 90-day period within which his trial was to have commenced would have expired on December 12, 1979, the stay of proceedings ordered by the court of appeals on September 24 prevented it from doing so. A stay of proceedings directed to a lower court tolls the running of any time period within which a particular act is to be done in that court. ³ This is especially true where, as here, the act to be done within a certain time is the very act to which the stay is directed. It is simply unreasonable to require a trial court to try a defendant within a certain time when it is expressly prevented from doing so by order of an appellate court.

Rabe contends that because sec. 971.10, Stats., does not expressly provide for any tolling of its time periods, none should be read into it. To construe that section as excluding the time during which the trial court is under a stay of proceedings from the period within which a defendant's trial must commence, he argues, is contrary to established principles of statutory construction.

However, the question presented here is not one of statutory construction. It is instead a question of the effect a stay of proceedings has on procedural time limitations such as that contained in sec. 971.10(2), Stats. The general rule is that a stay of proceedings stops the running of such time periods and no reason appears why that rule should not be followed here.

Furthermore, even if a tolling of the 90-day period had not taken place, Rabe would still not be entitled to release under sec. 971.10, Stats., because the continuance ordered by the trial court under sub. (3) of that section rendered the release provisions inoperative. ⁴ Sub. (3) provides that the court may order a continuance if it concludes that the ends of justice served by it outweigh the best interest of the public and the defendant in a speedy trial, and the reasons for its conclusion are expressly set forth in the record. In entering its order for a continuance on September 30, 1979, the trial court did so conclude and stated that the stay ordered by the court of appeals pending disposition of the state's pretrial appeal was justification for a continuance.

While the trial court's order was superfluous in light of the stay ordered by the court of appeals, we reject Rabe's contention that, once the stay was entered, the trial court was stripped of all power to act in the case. A stay operates to put an end only to all progress in the action. Wallace v. Wallace, 13 Wis. 250 (*224), 253 (*227) (1860). It does not...