State v. Williams, 93-2517-CR

CourtUnited States State Supreme Court of Wisconsin
Citation198 Wis.2d 479,544 N.W.2d 400
Docket NumberNo. 93-2517-CR,93-2517-CR
PartiesSTATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Scott E. WILLIAMS, Defendant-Appellant. d
Decision Date01 February 1996

Appeal from Circuit Court, Winnebago County; Robert Hawley, Judge.

For the plaintiff-respondent-petitioner the cause was argued by Daniel J. O'Brien, Assistant Attorney General, with whom on the briefs was James E. Doyle, Attorney General.

For the defendant-appellant there was a brief by James M. Shellow, Craig W. Albee and Shellow, Shellow & Glynn, S.C., Milwaukee and oral argument by Craig W. Albee.

STEINMETZ, Justice.

This case is before the court on petition for review of a decision of the court of appeals reversing an order of the circuit court. The issue presented to this court is whether Wis.Stat. § 970.03(10) (1993-94) 1 requires the State to establish probable cause at the preliminary hearing that the defendant committed the precise felony set forth in each count of a multiple-count criminal complaint. We hold that the State need only establish probable cause that a felony occurred as to one count in a set of transactionally related counts for there to be a valid bind over on that set, and need not establish probable cause that the specific felony alleged in each count was committed.

The defendant was charged in a ten-count criminal complaint alleging various drug offenses, including the delivery, or the intent to deliver, controlled substances. Four of these counts concerned drug offenses which were allegedly committed within 1,000 feet of a park. Each one of these four counts was transactionally related to one of the other counts in the complaint in regard to time, place and persons involved. However, because of the additional element regarding the proximity to a park, the State decided to charge these offenses as separate counts under a penalty enhancer statute. See Wis.Stat. §§ 161.41(1) and 161.49. 2 The Honorable Bruce K. Schmidt, Winnebago County Circuit Court, who presided over the preliminary hearing, found probable cause that a felony had been committed by the defendant as to each count in the complaint, including the counts containing the penalty enhanced offenses. As such, Judge Schmidt ordered the defendant bound over for trial on each count. 3

Although the State offered no evidence at the preliminary hearing supporting its allegations that any offenses occurred within 1,000 feet of a park, it filed an information containing all ten of the counts alleged in the complaint, including the four counts containing the penalty enhanced offenses. The defendant filed a motion to dismiss these four counts on the grounds that the evidence presented at the preliminary hearing did not establish probable cause that he delivered, or possessed with the intent to deliver, controlled substances within 1,000 feet of a park. This motion was denied by the Winnebago County Circuit Court, the Honorable Robert A. Hawley, who held that it was not necessary to find probable cause that the exact felony in each count had been committed for there to be a valid bind over as to that count.

The court of appeals reversed the circuit court and ordered the penalty enhanced counts in the information dismissed. See State v. Williams, 186 Wis.2d 506, 520 N.W.2d 920 (Ct.App.1994). The court of appeals concluded that Wis.Stat. § 970.03(10) requires the State to establish probable cause as to the precise felony in each count of a multiple-count complaint to bind over the defendant on that count. The court felt that simply establishing probable cause that the defendant committed "a felony" for each count was not sufficient according to the plain language of Wis.Stat. § 970.03(10). See id. at 511, 520 N.W.2d 920. Since the evidence presented at the preliminary examination did not show that the defendant intended to deliver controlled substances within 1,000 feet of a park, the court of appeals held that the four counts dependent upon this element were improperly included in the information.

This case presents a question regarding the proper interpretation of Wis.Stat. § 970.03(10). Questions of statutory interpretation are reviewed de novo by this court. The ultimate goal of statutory interpretation is to ascertain the intent of the legislature. See Rolo v. Goers, 174 Wis.2d 709, 715, 497 N.W.2d 724, 726 (1993). The first step of this process is to look at the language of the statute. See In Interest of Jamie L., 172 Wis.2d 218, 225, 493 N.W.2d 56, 59 (1992). If the statute is unambiguous, this court will apply the ordinary and accepted meaning of the language of the statute to the facts before it. See State v. Swatek, 178 Wis.2d 1, 5, 502 N.W.2d 909, 911 (Ct.App.1993). It is only if the language of the statute is ambiguous that this court looks beyond the statute's language and examines the scope, history, context, subject matter and purpose of the statute. See Rolo, 174 Wis.2d at 715, 497 N.W.2d 724.

The language of the statute, therefore, provides the starting point for this court's analysis. Wis.Stat. § 970.03(10) states:

In multiple count complaints, the court shall order dismissed any count for which it finds there is no probable cause. The facts arising out of any count ordered dismissed shall not be the basis for a count in any information filed pursuant to ch. 971.

The difficulty the circuit court and court of appeals encountered in interpreting Wis.Stat. § 970.03(10) stems from the phrase: "the court shall order dismissed any count for which it finds there is no probable cause." 4 The circuit court felt that this phrase only required the circuit court to find probable cause that a felony was committed as to each count for there to be a bind over as to that count. The court of appeals, however, held that the circuit court must find probable cause that the specific felony in each count had been committed for the bind over to be valid as to that count.

It is not difficult to see why this phrase presented problems for the courts below. The subsection begs the question: probable cause as to what? Clearly it requires probable cause as to the "count." Does the use of the word "count," however, mean the count itself or the offense contained in the count? Both the circuit court and the court of appeals' interpretations provide reasonable answers to this question. If a statute can support two reasonable interpretations, a court must find the language of the statute ambiguous. See, e.g., Hauboldt v. Union Carbide Corp., 160 Wis.2d 662, 684, 467 N.W.2d 508, 517 (1991); Girouard v. Jackson Circuit Ct., 155 Wis.2d 148, 155, 454 N.W.2d 792, 795 (1990).

When faced with an ambiguous statute, courts should use the rules of statutory construction to help determine the intent of the legislature. 5 See State v. Charles, 180 Wis.2d 155, 158, 509 N.W.2d 85, 86 (Ct.App.1993). One such rule is that a subsection should be construed so as to support the overall purpose of the statute. See Lukaszewicz v. Concrete Research, Inc., 43 Wis.2d 335, 342, 168 N.W.2d 581, 585 (1969); Swatek, 178 Wis.2d at 7, 502 N.W.2d 909. Wisconsin Statute § 970.03(1) clearly states that a preliminary hearing is required to determine "if there is probable cause to believe a felony has been committed by the defendant." This court has identified a number of purposes underlying this requirement including:

[To protect the] defendant's due process rights and guard[s] against undue deprivations of the defendant's liberty ... 'to prevent hasty, malicious, improvident and oppressive prosecutions, to protect the person charged from open and public accusations of crime, to avoid both for the defendant and the public the expense of a public trial, and to save the defendant from the humiliation and anxiety involved in public prosecution, and to discover whether or not there are substantial grounds upon which a prosecution may be based.'

See State v. Richer, 174 Wis.2d 231, 240-41, 496 N.W.2d 66, 68-69 (1993). In Richer we held that these purposes are met if "all charges included in the information ... [are] ... transactionally related to charges which are themselves supported by evidence adduced at the preliminary hearing...." See id. at 247, 496 N.W.2d 66. Or in other words, this test is met if the counts included in the information are not "wholly unrelated" to those for which the defendant is bound over. See id. at 238, 496 N.W.2d 66. In State v. Burke, 153 Wis.2d 445, 455, 451 N.W.2d 739, 744 (1990), this court listed seven factors for determining whether the counts in the information are "wholly unrelated." These include: "the parties involved, [the] witnesses involved, geographical proximity, time, physical evidence, motive and intent." Id.

Any interpretation of Wis.Stat. § 970.03(10) must coincide with the purposes of the preliminary hearing as construed by Richer and Burke. 6 The circuit court's decision, that a circuit court judge must only find probable cause that a felony occurred rather than finding probable cause that the specific felony alleged occurred, clearly preserves the "transactionally related" test of Richer in all circumstances.

The court of appeals' decision, however, impermissibly goes beyond this requirement of Richer and conflicts with our holding in Burke. In Burke, we stated that a circuit court should:

[D]etermine whether on the basis of the transactions or facts considered or testified to at the preliminary examination 'there is probable cause to believe a felony has been committed by the defendant.' The statute does not require the circuit court to state the specific felony it believes the defendant committed, nor does it limit the circuit court to considering only whether the defendant probably committed the specific felony charged in the complaint.

Burke, 153 Wis.2d at 456, 451 N.W.2d 739. A circuit court judge's sole obligation, at the preliminary hearing, is to determine whether there is...

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