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Sec. 752.31(2)(f) reimbursement provision applies only to count of conviction

State v. Barbara J. Thiry, 2015AP863-CR, 10/1/15, District 4 (1-judge decision; ineligible for publication); case activity

Here’s a defense win on an unusual issue. The State charged Thiry with 15 misdemeanor counts for mistreating 5 horses. A jury ultimately convicted her on just 1 count relating to 1 horse.  She challenged a circuit court order requiring her to reimburse the county for the investigation expenses relating to all 5 of the horses it seized. The appeal hinged on the proper interpretation of Wis. Stat. §173.24.

The State opposed Thiry’s reading of the statute in part because it sometimes has to charge 1 count of mistreatment for a large collection of small animals, such as gerbils or hamsters. But the court of appeals sided with Thiry:

I conclude that under a plain language interpretation of WIS. STAT. § 173.24 Thiry is obligated to reimburse the county for the expenses related to Lady only, because Thiry was convicted of a count involving mistreatment of Lady only. The statute explicitly provides that the county, and not the accused person, is responsible for the expenses if a person alleged to have violated chapter 951 is found not guilty of violations, as occurred in this case. See § 173.24(3). Slip op. ¶12

¶14 There are at least two problems with the State’s argument based on the hypothetical case in which a single violation involves multiple animals. First, in this case the State elected to limit each charge against Thiry to a single animal, and there is no ambiguity about how WIS. STAT. § 173.24(3) applies in this circumstance. Second, I do not understand what the State is contending would be the difficulty in applying § 173.24 in the hypothetical case in which the State obtains a conviction on a count involving mistreatment of multiple animals. It  would seem that in that case, “the violation” would be the count of conviction involving multiple animals, and the defendant should be assessed all expenses arising from that violation. If there is a flaw in this reasoning, the State fails to explain what it might be. Slip op. ¶14.

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