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State v. Joshua M. Franzen, 2010AP129-CR, District II, 7/14/10

court of appeals decision (1-judge, not for publication); for Franzen: Timothy J. Lennon; BiC; Resp.; Reply

Suppression Hearing – Pleading Requirements for Evidentiary Hearing

Suppression hearing isn’t required on motion which challenged probable cause to administer PBT but failed to specify the relief sought.

¶6        WISCONSIN STAT. § 971.30 deals with the required form of motions and pleadings in criminal matters, and defines “motion” as “an application for an order.” Sec. 971.30(1). The statute requires the movant to “state with particularity the grounds for the motion and the order or relief sought.” Sec. 971.30(2)(c) (emphasis added).

¶7        At the hearing, the State moved to dismiss the motion for failure to specify relief sought, which was denied. However, the circuit court repeatedly expressed confusion at what Franzen sought from the court in the first place. At multiple times during the hearing, the circuit court asked Franzen’s attorney to explain the ends of his motion. Franzen’s attorney argued that, if the PBT was improperly administered, “all the fruits of the illegal search would be extinguished.” A PBT is already inadmissible at trial by statute, and under these circumstances is used “for the purpose of deciding whether or not the person shall be arrested” or to show probable cause for arrest.  WIS. STAT. § 343.303. In essence, it appears Franzen intended to use an invalid PBT as a means to suppress any evidence obtained after the PBT to support probable cause for his arrest—including the field sobriety tests. We need not address the viability of such a strategy, and we note that this can only be discerned from the record of the evidentiary hearing and not from the motion itself.

¶11      We conclude that Franzen’s motion did not meet the requirements of WIS. STAT. § 971.30(2)(c) and, therefore, an evidentiary hearing should not have been granted.  Close scrutiny of a defendant’s motions in line with the threshold requirements of the statute ensures the preservation of scarce judicial resources.

Funny, you might think that the interests of preserving scarce judicial resources in this instance weigh in favor of review. After all, the trial court did hold a hearing, so those resources have already been expended. The case has been briefed. The appellate court has at least scrutinized the merits. To top it off, Franzen’s intent was clear, at least in light of the hearing, as the court of appeals grudgingly concedes, ¶7. Second-guessing the trial court’s decision to hold a hearing wastes already-expended resources. But the suspicion is that this isn’t so much about this specific case, but about sending a message to future trial courts to apply § 971.30(2)(c) more strictly (too strictly, but that is something else). It is not the first such message. Be advised.

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