State v. Leon A. Wedde, 2011AP130-CR, District 2, 1/11/12
The trial court dismissed with prejudice the pending charge when the prosecutor was unable to proceed on the scheduled date. The State argues that dismissal should have been without prejudice, and the court of appeals agrees that the trial court erroneously exercised discretion on this point, because it “did not discuss the public interest,” as required by State v. Kenyon, 85 Wis. 2d 36, 46-47, 270 N.W.2d 160 (1978).
¶10 Based on Kenyon and Braunsdorf, we reverse and remand to the trial court with the following directions. We understand that the trial court judge who presided in this case beforehand has retired. So, on remand, there are some options available. A new date for trial may be set by the successor trial court if the State withdraws its motion to dismiss. Or, the State may wish to proceed with its motion to dismiss without prejudice. If the latter course of action is taken, the successor court may either grant or deny the State’s motion to dismiss without prejudice after considering the public’s interest to have the crimes actually committed fairly prosecuted and to the protection of the rights of third persons. See Kenyon, 85 Wis. 2d at 47. In the event the trial court decides to deny the motion to dismiss without prejudice, the case must then be set for trial on a date certain. Braunsdorf mandates that the court may not dismiss with prejudice even if the State says it will not be ready to proceed to trial on the scheduled date. Rather, the case must proceed to trial and jeopardy must attach. See Braunsdorf, 98 Wis. 2d at 576-77.