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Court rejects sufficiency claim based on discrepancies between charging document and proof

State v. Dragisa Pavlovic, 2013AP1180-CR, District 2, 10/23/13; court of appeals decision (1-judge; ineligible for publication); case activity

Pavlovic was charged with bail jumping for violating bond conditions that included no contact with his wife or her residence. (¶2). One count alleged he had contact with his wife on July 23; the evidence at trial, however, showed only that he had contact with her residence that day; she wasn’t there. (¶10). But the criminal complaint’s probable cause section made it clear that the basis for the charge was contact with her residence, just as the trial evidence showed. (¶11). Citing § 971.26, the court holds the “defect in the form” of the charging language does not render the conviction invalid.  The complaint clearly put him on notice as to the factual basis for the charge, so he was not prejudiced. (¶¶11, 12). Nor does this amount to an amendment of the complaint on appeal in violation of State v. Duda, 60 Wis. 2d 431, 210 N.W.2d 763 (1973):

¶13      …. The question in Duda was whether a complaint could be amended after verdict to an entirely different charge under a different statute, from bribery of a witness to solicitation of perjury. Id. at 435. That is certainly not the case before us. Here, the charge remains the same, misdemeanor bail jumping; the charging language merely incorrectly specified the manner in which it was alleged Pavlovic violated his bail conditions, while the probable cause language and proceedings at trial made that clear.

The court also rejects Pavlovic’s challenge to his conviction on another count, which alleged contact with his wife “on or between July 25 and 26,” because the evidence the state relied on for that conviction was a phone call on July 24. (¶15). The court concludes “[t]his discrepancy is of no import.” (¶16). Unless the time of commission is a material element of the offense charged, or some material right of the defendant is affected–for example, whether the offense occurred within the statute of limitation–the state is not tied to a specific date and may, within reasonable limitations, prove the commission of the offense charged on some day other than the one alleged. Blenski v. State, 73 Wis. 2d 685, 696, 245 N.W.2d 906 (1976); Hawkins v. State, 205 Wis. 620, 624, 238 N.W. 511 (1931). There is no statute of limitations issue here, and the court discerns no material or prejudicial impact on the defense because of the date discrepancy. (¶¶17-18).

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