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Costs — Order to Produce

State v. Tronnie M. Dismuke, 2001 WI 75, 244 Wis. 2d 457, 628 N.W.2d 791, reversing and remanding, 2000 WI App 198, 238 Wis. 2d 577, 617 N.W.2d 862
For Dismuke: Richard D. Martin, William S. Coleman, SPD, Milwaukee Appellate<

Issue: Whether a defendant may have to bear costs of being produced from prison for court appearances.

Holding:

¶4 We reverse. Our decision in State v. Ferguson, 202 Wis. 2d 233, 549 N.W.2d 718 (1996) interpreted the term ‘fees’ in a related subsection of the criminal costs statute, Wis. Stat. § 973.06, to include only those sums ‘ordinarily charged to and payable by another,’ not internal operating expenses of a governmental unit. The record in this case contains conflicting information and no evidence about whether the expenses associated with executing orders to produce are generally ‘charged to and payable by another,’ or are merely internal operating expenses of the Milwaukee County Sheriff’s Department. The record is similarly underdeveloped and murky on the specific amounts assessed in this case, and there is no record at all on the constitutional issues. Accordingly, we reverse the court of appeals and remand the cause to the circuit court for further proceedings consistent with this opinion.

¶26 Accordingly, because of the inadequacies in this record, we hold only that our decision in Ferguson applies to the determination of taxable ‘fees of officers allowed by law’ under Wis. Stat. § 973.06(1)(a). This requires a determination of whether the expenses associated with the execution of orders to produce are ordinarily charged to and payable by another or are merely internal operating expenses of a governmental unit. If the former, they are taxable, provided they are ‘allowed by law,’ which requires a determination of whether the actual assessments were consistent with Wis. Stat. § 814.70. The constitutional issues in this case cannot be resolved because there is no record upon which to resolve them. Therefore, we reverse the court of appeals and remand this case to the circuit court for further proceedings consistent with this opinion.

 

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