State v. Davis, 00-0889-CR.

• Decision Date: 27 December 2001
• Docket Number: No. 00-0889-CR.,00-0889-CR.
• Parties: STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. Christopher Lee DAVIS, Defendant-Respondent.
• Court: Wisconsin Supreme Court

248 Wis.2d 986

2001 WI 136

637 N.W.2d 62

STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. Christopher Lee DAVIS, Defendant-Respondent.

No. 00-0889-CR.

Supreme Court of Wisconsin.

Oral argument November 6, 2001.

Decided December 27, 2001.

For the plaintiff-appellant-petitioner the cause was argued by Michael R. Klos, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

For the defendant-respondent there was a brief and oral argument by Jane Krueger Smith, Oconto Falls.

¶ 1. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

This is a review of a published decision of the court of appeals, State v. Davis, 2001 WI App 63, 242 Wis. 2d 344, 626 N.W.2d 5, affirming an order of the Circuit Court for Dodge County, Daniel W. Klossner, Circuit Court Judge. The circuit court granted defendant Christopher Lee Davis's motion to dismiss the criminal case against him with prejudice because the State failed to bring the case on for trial within the 120-day time period set forth in Wis. Stat. § 971.11(2) (1999-2000).¹

¶ 2. The court of appeals affirmed the circuit court's order, holding that the legislature intended that a circuit court have the discretion to dismiss a criminal case with or without prejudice when the State fails to bring the criminal case on for trial within the 120-day time period set forth in Wis. Stat. § 971.11(2).

¶ 3. Two questions of law are presented in this case. First, does Wis. Stat. § 971.11(7) grant a circuit court the discretion to dismiss a criminal case with or without prejudice when the State fails to bring the criminal case on for trial within the 120-day time period set forth in § 971.11(2)?² Second, if § 971.11(7) does grant a circuit court the discretion to dismiss a criminal case with or without prejudice when the State fails to bring the criminal case on for trial within the 120-day time period set forth in § 971.11(2), did the circuit court in the present case properly exercise its discretion in dismissing the criminal case against the defendant with prejudice?

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¶ 4. This court decides both these questions of law independent of the circuit court and court of appeals, but benefiting from their analyses.

¶ 5. We agree with the court of appeals that when a criminal case is not brought on for trial within the 120-day time period set forth in Wis. Stat. § 971.11(2), a circuit court has the discretion under § 971.11(7) to dismiss the criminal case with or without prejudice. We further conclude that the circuit court failed to properly exercise its discretion in the present case, and we remand the cause to the circuit court to exercise its discretion in determining whether the dismissal should be with or without prejudice.

I

¶ 6. The facts in the present case are undisputed. On March 16, 1999, a criminal complaint was filed in Dodge County Circuit Court alleging that Christopher Lee Davis, the defendant and an inmate at the Fox Lake Correctional Institution, was involved in a conspiracy to deliver marijuana at the correctional institution. Pursuant to Wis. Stat. § 971.11, commonly referred to as the Intrastate Detainer Act,³ the defendant himself, not represented by counsel, requested a "prompt disposition" of his case. The defendant's request triggered the 120-day time period during which the State was to bring the criminal case against the defendant on for trial.

¶ 7. The district attorney's office received the defendant's request on March 23, 1999. Defense counsel was appointed for the defendant on April 22, 1999, and the defendant was represented throughout the proceedings. A preliminary hearing was scheduled for May 5, 1999, but the defendant waived his right to the hearing on a form executed that day. The defendant was arraigned on May 26, 1999, at which time the circuit court scheduled the case for a status conference to be held on July 19, 1999. Following the status conference the circuit court entered orders on July 22, 1999, after the statutory 120-day period to bring the case on for trial had expired, scheduling a motion hearing on August 3, 1999, and a trial on November 16, 1999.

¶ 8. The State and the defense counsel filed a joint request for a continuance on July 28, 1999, so the motion hearing was rescheduled for October 18, 1999. The parties then filed a "Stipulation & Recommendation" on September 9, 1999, in which the defendant agreed to plead guilty to one count of conspiracy to deliver marijuana. In exchange for a sentence recommendation of two years, the defendant agreed to testify truthfully in any proceeding involving the delivery of drugs at Fox Lake Correctional Institution. The defendant executed a plea questionnaire and waiver of rights form on October 7, 1999, and the circuit court scheduled a plea and sentencing hearing for January 7, 2000.

¶ 9. However, in a letter to the circuit court dated January 3, 2000, defense counsel notified the circuit court that it had come to counsel's attention that the defendant had requested a prompt disposition of the criminal case against him pursuant to Wis. Stat. § 971.11 and that the district attorney's office had received this request on March 23, 1999. Defense counsel's letter explained that the request for prompt disposition was not on file with the clerk of courts⁴ and that defense counsel had not received a copy from the district attorney. Defense counsel's letter then asked the circuit court to dismiss the criminal case with prejudice on the ground that the State failed to bring the case on for trial within the 120-day time period set forth in § 971.11(2). One hundred twenty days from March 23, 1999, the date on which the district attorney's office had received the defendant's request for prompt disposition of the case, had elapsed on July 21, 1999.

¶ 10. On February 14, 2000, the circuit court held a hearing on the defendant's motion to dismiss the case. The circuit court dismissed the case with prejudice, reasoning in part that a dismissal without prejudice would not provide any meaningful remedy to the defendant. The court of appeals affirmed the circuit court's dismissal order, concluding that the circuit court had the discretion to dismiss the criminal case with or without prejudice under Wis. Stat. § 971.11(7). The court of appeals also ruled that the circuit court properly exercised its discretion in the present case.

II

¶ 11. We first consider what kind of dismissal of a criminal case is authorized under Wis. Stat. § 971.11: dismissal with prejudice or dismissal without prejudice? Section 971.11(2) provides that a district attorney shall bring a criminal case on for trial within 120 days after receipt of an accused's request for a prompt disposition of the criminal case "subject to s. 971.10." Section 971.11(7) provides that if a criminal case is not brought on for trial within the 120-day time period set forth in § 971.11(2), "the case shall be dismissed." Section 971.11(1), (2), and (7) states in relevant part as follows:

(1) Whenever the warden or superintendent receives notice of an untried criminal case pending in this state against an inmate of a state prison, the warden or superintendent shall, at the request of the inmate, send by certified mail a written request to the district attorney for prompt disposition of the case. The request shall state the sentence then being served, the date of parole eligibility, if applicable, or the date of release to extended supervision, the approximate discharge or conditional release date, and prior decision relating to parole. If there has been no preliminary examination on the pending case, the request shall state whether the inmate waives such examination, and, if so, shall be accompanied by a written waiver signed by the inmate.

(2) If the crime charged is a felony, the district attorney shall either move to dismiss the pending case or arrange a date for preliminary examination as soon as convenient and notify the warden or superintendent of the prison thereof, unless such examination has already been held or has been waived. After the preliminary examination or upon waiver thereof, the district attorney shall file an information, unless it has already been filed, and mail a copy thereof to the warden or superintendent for service on the inmate. The district attorney shall bring the case on for trial within 120 days after receipt of the request subject to s. 971.10.

. . . .

(7) If the district attorney moves to dismiss any pending case or if it is not brought on for trial within the time specified in sub. (2) or (3) the case shall be dismissed unless the defendant has escaped or otherwise prevented the trial, in which case the request for disposition of the case shall be deemed withdrawn and of no further legal effect. Nothing in this section prevents a trial after the period specified in sub. (2) or (3) if a trial commenced within such period terminates in a mistrial or a new trial is granted. (Emphasis added.)

¶ 12. The text of Wis. Stat. § 971.11(7) is inconclusive about the legislature's intent regarding dismissal of a criminal case with or without prejudice. The language in § 971.11(7) that "the case shall be dismissed" is silent on the issue of dismissal with or without prejudice when the State fails to bring the criminal case on for trial within the 120-day time period set forth in § 971.11(2). Although the legislature was aware of this issue, it failed to provide direction. As the court of appeals explains, the legislature had the opportunity to make its intent perfectly clear but apparently declined to do so.⁵ In the absence of explicit direction in the text of the statute or legislative history, we must nevertheless determine whether the legislature intended a circuit court to dismiss the criminal case under § 971.11(7) with or without prejudice.

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¶ 13. The aim of statutory interpretation is to discern the intent of the legislature. The court must ascertain the legislature's intent from the...