State v. Braunsdorf

Decision Date28 October 1980
Docket NumberNo. 79-095-CR,79-095-CR
Citation297 N.W.2d 808,98 Wis.2d 569
PartiesSTATE of Wisconsin, Plaintiff-Appellant, v. Sharon BRAUNSDORF, Defendant-Respondent-Petitioner.
CourtWisconsin Supreme Court

Glenn L. Cushing, Asst. State Public Defender, argued, with whom on the brief was Harold L. Harlowe, Madison, for defendant-respondent-petitioner.

Michael R. Klos, Asst. Atty. Gen., argued, with whom on the brief was Bronson C. La Follette, Atty. Gen., for plaintiff-appellant.

CALLOW, Justice.

We granted review in order to consider whether the trial courts of this state have the inherent authority to dismiss with prejudice a criminal case prior to the attachment of jeopardy. We conclude that, except for those situations in which a defendant's constitutional right to a speedy trial is implicated, the trial court possess no such inherent authority; and we therefore affirm the decision of the court of appeals, 92 Wis.2d 849, 286 N.W.2d 14.

Defendant-respondent-petitioner Sharon Braunsdorf (defendant) was charged with welfare fraud; and after a preliminary examination, the case was scheduled for a jury trial as the number two case on the calender for December 19, 1978. On the morning of December 15, 1978, the trial court was informed that the number one case for December 19, 1978, had been disposed by plea. The judge then ordered the assistant district attorney for Brown County and the defendant's counsel be informed that this case had become the number one case for December 19, 1978, and that the matter was expected to proceed to trial at 9 a.m. On the morning of December 18, 1978, the assistant district attorney, without informing the trial court, directed the clerk of courts to call off the jury panel scheduled for the following morning. Later that afternoon, after approximately twenty-eight of the thirty-two jurors had been advised not to appear, the trial court learned about the action of the assistant district attorney and because of the late hour concluded that an effort to recall them would be unavailing. He informed counsel for both sides that the next morning he would "seriously consider ... any motion that was made on behalf of the defendant to dismiss this matter and to dismiss it with prejudice."

On the morning of the trial date, December 19, 1978, the assistant district attorney, Royce Finne, moved the court for an adjournment. In response to the court's inquiries, Finne stated that although he had been aware of the forthcoming trial date since late November, he had not undertaken any action to contact witnesses and place them on standby or otherwise to prepare for the trial of the case. He also stated that ordinarily preparation for trial begins some seven to ten days before the scheduled date, but in this case no such preparation was made because he had been informed by a person in his department that the case which had been scheduled as the number one case was "firm" and its early disposition was not anticipated. The court then inquired as to the actions undertaken by the assistant district attorney to prepare for trial after learning, on December 15, 1978, that this case had been moved up to the number one case. Finne indicated he had attempted to locate certain records in possession of the Department of Industry, Labor and Human Relations but that they were not available except, perhaps, in the form of a computer printout which could possibly be available by Monday, December 18, the day before trial. With respect to a representative from a local bank who was one of two critical witnesses not then present, Finne stated that in view of his experience, there would not have been sufficient time for the necessary bank records to be located, so he did not contact the witness at all. Neither critical witness was subpoenaed. The trial court denied the motion for adjournment, whereupon the assistant district attorney moved to dismiss the case "(b)ased on the discretion which lies in the District Attorney's office to prosecute or not to prosecute a matter."

The trial court requested argument from counsel on whether the case should be dismissed with or without prejudice, and the following colloquy ensued:

"Mr. Finne: That is not the District Attorney's motion, Your Honor. We do not recognize the Court's authority to do that.

"The Court: You're just moving to dismiss?

"Mr. Finne: Yes, we do not recognize the Court's authority to dismiss with prejudice."

The defendant took the position that the case should be dismissed with prejudice and that the trial court had the authority to do so. Upon the conclusion of the arguments of counsel, the trial court relying upon this court's opinions in State v. Kenyon, 85 Wis.2d 36, 270 N.W.2d 160 (1978); State v. Stoeckle, 41 Wis.2d 378, 164 N.W.2d 303 (1969); and Wittke v. State ex rel. Smith, 80 Wis.2d 332, 259 N.W.2d 515 (1977), concluded "the position of the District Attorney in regard to dismissal should be granted. However, that dismissal is to be with prejudice."

The court of appeals concluded that, in the absence of statutory authority, a trial court did not possess the inherent power to dismiss a criminal case with prejudice on nonconstitutional grounds prior to the attachment of jeopardy, and it modified the order of dismissal accordingly. State v. Braunsdorf, 92 Wis.2d 849, 853-54, 286 N.W.2d 14 (1979).


Prosecutors enjoy largely unfettered discretion in the initiation of criminal proceedings. Sears v. State, 94 Wis.2d 128, 133, 287 N.W.2d 785 (1980); State v. Karpinski, 92 Wis.2d 599, 607-08, 285 N.W.2d 729 (1979). In English common law that discretion extended to the entry of a nolle prosequi or voluntary dismissal, 1 the use of which was exclusively under the control of the attorney general, Rex v. Cranmer, 1 Ld.Raym. 721, 91 Eng.Rep. 1381 (K.B. 1701), and acceptance by the court was obligatory, R. ex rel. Gregory v. Allen, 1 B. & S. 850, 121 Eng.Rep. 929 (Q.B. 1862). The prosecutor's discretion to enter a nolle prosequi in a criminal case was subject only to the narrow exception, occurring infrequently in English cases, where the court sought to avoid "mischief or oppression," King v. Webb, 1 W.Bl. 460, 461, 97 Eng.Rep. 931 (1764), or to further the interests of justice, Mervyn Broad, 68 Crim.App. 281, 285 (1978), 2 in which situations the court may decline to accept the prosecutor's nolle prosequi.

The practice of using the nolle prosequi was carried to this country, but its use has become increasingly subject to the court's approval. 3 In Guinther v. Milwaukee, 217 Wis. 334, 258 N.W. 865 (1935), this court approved the action of a trial court denying the city attorney's motion to dismiss an ordinance violation charge and appointing counsel to continue on behalf of the city when the city attorney refused to participate further. That case was our initial recognition of the court's limited supervisory role over prosecutorial motions to dismiss. In State v. Kenyon, 85 Wis.2d at 45, 270 N.W.2d 160, we emphatically reaffirmed Guinther and removed any doubt whether its rule extended to criminal cases. It was there stated:

"In sum, we believe the holding in Guinther is clear and conclusive. Prosecutorial discretion to terminate a pending prosecution in Wisconsin is subject to the independent authority of the trial court to grant or refuse a motion to dismiss 'in the public interest.' "

But we also set forth certain guidelines to ensure that a trial court's decision to deny a motion to dismiss is firmly grounded upon considerations of public interest.


Against this background of considerable prosecutorial discretion, tempered by Guinther and Kenyon, we turn to the defendant's contention that trial courts possess an independent, inherent power to dismiss criminal cases with prejudice. First, we note, as did the court of appeals, that only sec. 976.05(1), Stats., gives trial courts the power to dismiss a case with prejudice. Otherwise, dismissals prior to the attachment of jeopardy are without prejudice. See : Secs. 968.03, 970.03, 970.04, 971.01(2), Stats. Second, also as noted by the court of appeals, there has been no claim in this case that the defendant has been deprived of her constitutional right to a speedy trial. Therefore, the reliance of the trial court and the defendant on State v. Stoeckle, supra, is misplaced. In Stoeckle we stated:

"The right to a speedy trial is guaranteed by art. I, sec. 7 of the Wisconsin Constitution and the sixth and fourteenth amendments of the United States Constitution. Wisconsin recognizes the right to a dismissal with prejudice to the state if this right is violated, but such right accrues only after a defendant has taken affirmative steps to bring his case to trial." 41 Wis.2d at 384, 164 N.W.2d 303.

Our cases make it clear that the power to dismiss with prejudice contemplated in Stoeckle is not some latent or residual power which is invoked in the presence of a constitutional speedy trial violation. Rather, it is a power implicit in the speedy trial guarantee because it is necessary to the protection of "(t)he amorphous quality of the right." See : Barker v. Wingo, 407 U.S. 514, 522, 92 S.Ct. 2182, 2187, 33 L.Ed.2d 101 (1972). Since that power exists only to safeguard a defendant's constitutional right to a speedy trial, in the absence of statutory authority it cannot be extended to effectuate other purposes.

We are left with three cases, State v. Kenyon, supra, Wittke v. State ex rel. Smith, supra, and City of Madison v. Two Crow, 88 Wis.2d 156, 276 N.W.2d 359 (Ct.App. 1979), which the defendant claims embody the proposition that a trial court may dismiss a criminal case with prejudice, prior to jeopardy.

In Two Crow the court of appeals summarily approved the dismissal of an ordinance complaint with prejudice. The court determined the defendant had been improperly detained because he had not been advised of his option to post either a bond or cash bail. This case...

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