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Forfeiture – Dismissal with Prejudice, Failure to Hold Timely Hearing on Petition, § 961.555(2)

State v. Lamont D. Powell, 2007 WI App 127
For Powell: Nicholas C. Zales

Issue/Holding:

¶3        The sixty-day limit in Wis. Stat. § 961.555(2)(b) is mandatory and a forfeiture petition must be dismissed unless the requisite hearing is held within the sixty-day period because a person may not be deprived of his or her property “for an indefinite time” without a prompt judicial assessment of whether forfeiture is justified. See State v. Baye, 191 Wis. 2d 334, 339–340, 528 N.W.2d 81, 83 (Ct. App. 1995); see also State v. Rosen, 72 Wis. 2d 200, 204, 206–208, 240 N.W.2d 168, 170, 171–172 (1976) (applying a predecessor provision identical, as material, to § 961.555(2)(b)). Although it is true, as the State points out, that the statute does not indicate whether a dismissal for non-compliance with § 961.555(2)(b) should be with prejudice or without prejudice, if the State could, as it tried here, avoid the statute’s sixty-day command by the simple expedient of filing a new forfeiture petition based on the same facts, the sixty-day limitation would be meaningless. See Kindcare, Inc. v. Judith G., 2002 WI App 36, ¶3, 250 Wis. 2d 817, 821, 640 N.W.2d 839, 841 (protective placement) (“We hold that the circuit court loses competence if the probable-cause hearing is not held within seventy-two hours after the person is first taken into custody, and that the mere filing of a new petition does not start the clock anew.”). Accordingly, once the sixty-day period mandated by § 961.555(2)(b) has expired, the circuit court loses competency, and the State may not start the clock running anew by filing another forfeiture petition based on the same facts. Thus, the new action is a nullity, and the circuit court’s order of dismissal is modified to be a dismissal with prejudice. [5]


 [5] The State argues that because the circuit court lost competency once the sixty days mandated by Wis. Stat. § 961.555(2)(b) expired, it had no competency to do anything further in the case, and that this permitted the State to file its forfeiture petition again. We disagree. An appeal from the circuit court cannot be taken without a writing reifying the circuit court’s action. See Wis. Stat. § 808.03(1). Thus, Brandt v. Labor & Industry Review Commission, 166 Wis.  2d 623, 627, 480 N.W.2d 494, 496 (1992), recognized that dismissal is appropriate where a circuit court lacks competency to adjudicate the matter before it.

 

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