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Defense win! Circuit court erroneously denied State’s motion to dismiss and then to amend charge

State v. Esmeralda Rivera-Hernandez, 2018AP311-312-CR, 2/20/19, District 2 (1-judge opinion; ineligible for publication); case activity (including briefs)

DAs have almost limitless discretion in deciding whether to initiate a prosecution. But their discretion to terminate a prosecution is subject to independent review by the circuit court, which must consider the public’s interest in: (1) the proper enforcement of its laws, and (2) deferring to the prosecutor’s legitimate discretion.  See State v. Kenyon, 85 Wis. 2d 36, 45, 270 N.W.2d 170 (1978). In this case, the court of appeals holds the circuit court erroneously exercised its discretion when it considered (1) but not (2).

The State initially charged the defendant with misdemeanor battery and disorderly conduct. After the victim stopped cooperating with the State, the DA moved to dismiss its complaint, but the circuit court denied the motion. The State tried to amend the the two charges to county ordinance violations. The court also denied the motion to amend.

The court of appeals decision, citing Kenyon, reversed both denials:

¶13 Based on Kenyon, we conclude that the circuit court erroneously exercised its discretion by not properly considering the public interest. Here, the circuit court failed to take into account the position and the discretion of the State. Kenyon addresses basically two minimum findings to ensure that a court’s decision to deny a motion to dismiss is “in the public interest”: (1) the public interest in proper enforcement of its laws and (2) the public interest in allowing the prosecutor sufficient freedom to exercise his or her legitimate discretion, employ to best effect his or her experience and training, and make the subjective judgment implicit in the exercise of the broad prosecutorial authority. Id. Based on the record, the circuit court appeared to base its decision entirely on the first factor by repeatedly stressing the importance of “ensuring that the public is protected and that the laws of the State are” prosecuted fairly and the rights of third persons protected. The court stressed that this is a “serious complaint,” “a significant battery,” and “serious allegations,” despite Rivera being charged with a misdemeanor.

¶14 What the circuit court failed to properly consider was the public interest in deferring to the prosecutor’s legitimate discretion. The court recognized a concern with “get[ting] into being the prosecutor,” and it stated on the record, “The Courts shouldn’t be prosecutors.” Despite this statement, the circuit court did exactly that. The court explained, “I’m not sure that the discretion has been thoroughly and completely exercised here,” but what the court really meant was that it disagreed with the State’s exercise of discretion, not that it had not been exercised . . .

SCOW affirmed an embellished Kenyon in State v. Conger, which involved a circuit court’s authority to reject a plea bargain that would result in the amendment of a charge. See our earlier post here.

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