The deadline for filing a return of property application under § 968.20 is “directory” rather than mandatory, so failing to comply with the deadline doesn’t deny a circuit court the competency to decide the application if the petitioner can establish excusable neglect for not complying with the deadline. Further, the state can’t meet its burden of proving the property was used in the commission of a crime, and thus shouldn’t be returned, by simply referring to the contents of a criminal complaint related to the seizure of the property.
Under § 968.20(1), a person seeking return of property seized by law enforcement “shall” file a petition within 120 days of the initial appearance in the criminal case, if one is scheduled (which would mean, of course, the person was charged with a crime). Pleuss was charged with crimes arising out of an incident in September 2020, including pointing a shotgun at an officer; he made an initial appearance in December, and in March 2021 the state moved to dismiss the charges. In April—127 days after his initial appearance—Pleuss filed an application for return of the shotgun. (¶¶4-6).
The circuit court held that the deadline in § 968.20(1) is mandatory and therefore Pleuss’s application was too late, depriving the court of competency to rule on the application. (¶10). The parties on appeal, and the court of appeals, agree the circuit court was wrong. Under the four factors for determining when “shall” is mandatory, see, e.g., State v. R.R.E., 162 Wis. 2d 698, 708, 470 N.W.2d 283 (1991), the § 968.20(1) deadline is directory, not mandatory. (¶¶17-32).
That doesn’t mean Pleuss is home free, however, as his petition was still outside the 120-day directory deadline. Applying a doctrine from civil cases—for a § 968.20 application is a civil in rem proceeding—that allows enlargement of statutory deadlines, the court holds that on remand Pleuss must prove “excusable neglect” under § 801.15(2)(a) for filing the application after the deadline. (¶¶33-41).
The circuit court also denied Pleuss’s petition on an alternative ground: That the shotgun couldn’t be returned because it’s a dangerous weapon and the state proved Pleuss committed a crime involving the use of the weapon, see § 968.20(1m)(b). (¶10). But the court of appeals holds the state proved no such thing, as its method of proof was inadequate: It relied entirely on the probable cause statement of the now-dismissed criminal complaint and presented no witnesses (for instance, the deputy who witnessed the events leading to the complaint) or other evidence, despite the fact Pleuss disputed the recitation in the complaint. (¶¶8-9, 42-62).
Nor does the state get a do-over on remand. Thus, if Pleuss can prove excusable neglect for his late filing, the circuit court must order the shotgun to be returned to him. (¶¶63-64).