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Defenses – Statute of Limitations, § 939.74 – Tolling: Procedure for Determining

State v. Bruce Duncan MacArthur, 2008 WI 72, on Certification
For MacArthur: Alex Flynn
Amicus: Robert R. Henak

Issue/Holding:

¶50      Our approach to tolling is guided by United States v. Florez, a Second Circuit Court of Appeals opinion that articulated the requisite burden of proof and standard of review for the federal tolling provision. Florez, 447 F.3d at 149-50. In Florez, the following protocol was set forth: After the defendant makes a statute of limitations challenge, the State bears the burden of showing, at a pretrial proceeding, that Wis. Stat. § 939.74(3) has been satisfied by a preponderance of the evidence. However, at trial, the jury must determine the date or date range of the charged offense beyond a reasonable doubt. This can be accomplished by the general verdict’s language or when appropriate with a special verdict. If the date found by the jury creates a bar against prosecution because of the statute of limitations and the court’s pretrial findings regarding tolling, the court must then rule accordingly on the issue.¶51      This approach is supported for a number of reasons. Under this approach, the issue is then decided prior to trial, which prevents an untimely prosecution. Moreover, it allows the State the opportunity to appeal the court’s decision on this jurisdictional issue. As a practical matter, this is an issue which is typically known and addressed early on in litigation. Furthermore, the fact that a defendant was not a public resident for some period of time is not determinative of guilt and not an element of the crime charged. Rather, it is a fact that determines whether the law tolls a statute of limitations. Therefore, the State need not prove a defendant’s status as a public resident beyond a reasonable doubt. Finally, compliance with a statute of limitation is required for the court to have personal jurisdiction over the defendant, and jurisdiction is typically a question of law for the trial court to decide.

¶52      On appellate review, a circuit court’s tolling decision under Wis. Stat. § 939.74(3) should be subject to the following standard: Appellate courts should review the circuit court’s findings of fact relevant to the application of Wis. Stat. § 939.74(3) only for an erroneous exercise of discretion, and this court reviews de novo the circuit court’s legal conclusion that these facts establish tolling as specified by the statute. See Florez, 447 F.3d at 150.

 

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