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Defense win: Filing citation in municipal court didn’t toll statute of limitation for criminal case

State v. Traci L. Kollross, 2019 WI App 30; case activity (including briefs)

The circuit court held that the filing of a municipal court citation against Kollross for OWI 1st tolled the three-year statute of limitation for a criminal charge based on the same incident. The court of appeals disagrees and orders the criminal OWI charge against Kollross be dismissed because it was filed too late.

Kollross was arrested in May 2011 and issued a citation in municipal court for OWI 1st. After her conviction in municipal court she appealed to circuit court, though that prosecution was dismissed without prejudice when the arresting officer failed to appear for trial. A municipal court citation was reissued. In the meantime, Kollross was arrested and convicted for OWI 1st in a different county. As a result, the reissued citation was dismissed for lack of subject matter jurisdiction, and in Feburary 2015 the state filed a criminal complaint charging the May 2011 incident as an OWI 2nd. (¶¶2-4).

Kollross moved to dismiss, arguing the complaint was filed after the three-year statute of limitation for misdemeanors in § 939.47(1). The circuit court held that the municipal court proceedings tolled the three-year period under § 939.74(3), which suspends the limitation period while a prosecution for the act is “pending.” The court of appeals rejects this reasoning as contrary to the statute and instead follows the rationale of State v. Faber, Nos. 2010AP2324 and 2010AP2325, unpublished slip op. (WI App March 23, 2011):

¶10     Here, as in Faber, we “begin by stating the obvious”—criminal charges were not commenced against Kollross until February 5, 2015, more than three years after the May 28, 2011 offense. See Faber, Nos. 2010AP2324 and 2010AP2325, ¶9. Wisconsin Stat. § 939.74 clearly states that prosecutions are both commenced [see sub. (1)] and pending [see sub. (3)] when a warrant or a summons has been issued, an indictment has been found, or an information has been filed. See id. The May 28, 2011 citation was a forfeiture action, which is not a criminal proceeding, see Wis. Stat. §§ 346.65(2)(am)1., 939.12. No warrant or summons was issued, no indictment was found, and no information was filed. Nonetheless, the circuit court equated the municipal ticket with a summons. Municipal offenses have a separate statute of limitations, see § 939.74(1), and are not contemplated in the criminal statute of limitations. The circuit court never obtained personal jurisdiction over Kollross in relation to the 2011 municipal citation. Consequently, the statute of limitations applicable to criminal proceedings was never tolled as to the commencement of OWI criminal proceedings in 2015.

The court acknowledges the state’s concern that this conclusion is “contrary to its interest in prosecuting some OWI offenses,” but says the state ignores the plain language and purposes of § 939.74—protecting the accused from having to defend against charges for conduct remote in time and ensuring that criminal prosecutions are based on recent evidence. The court also notes that Kollross’s municipal action was delayed because the municipalities prosecuting it failed to prepare for trial in the circuit court and to promptly proceed on the re-issued citation. “Had the matter been resolved in a timely fashion by the multiple municipalities involved, the more serious OWI charges would likely have been resolved by this time.” (¶11).

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