The state charged Butler with multiple sexual assaults of children. These charges resulted in a probation hold that lasted about four months; the ALJ did not revoke Butler and the hold was terminated. But Butler’s new charges were still pending, and he remained in jail for about another seven months while the public defender tried to find a lawyer to represent him. When that lawyer finally came on board, Butler had his initial appearance and then his prelim–about 11 months after he’d been arrested. Butler pleaded not guilty and his new attorney moved to dismiss the charges, arguing that the long delay had deprived the circuit court of personal jurisdiction. The trial court denied the motion, but the court of appeals granted Butler’s petition for interlocutory appeal. It now reverses and requires dismissal of the charges without prejudice.
This case had been on hold awaiting the final resolution of State v. Lee, 2021 WI App 12, 396 Wis. 2d 136, 955 N.W.2d 424. In that case, the court of appeals held that a delay of more than three months between the initial appearance and the prelim (which by statute is supposed to be held within 10 days of the initial appearance when the defendant is in custody) required dismissal without prejudice. SCOW then accepted review, but it ended up dismissing the case as improvidently granted last year. The obvious difference between this case and Lee is the statute involved. Wis. Stat. § 970.03(2) imposes the 10-day time limit for in-custody prelims; the corresponding statute governing initial appearances is § 970.01, and it requires that they be held “within a reasonable time” of arrest.
So, different statute, similar reasons for delay (the SPD’s inability to find counsel and the circuit court’s failure to appoint one at county expense), same result: dismissal without prejudice. Adapting language from Lee, the court of appeals says the decision to delay an initial appearance is discretionary, and that
Proper considerations in determining the justification for adjourning an initial appearance based on a lack of appointed counsel for the defendant, and whether each adjournment will comply with the “reasonable time” requirement, include the following: the extent of the SPD’s efforts to locate counsel, the reasons for the delay in obtaining counsel, and how long that delay is likely to continue given the other circumstances. The circuit court should also consider alternate avenues of procuring counsel, like court appointment. The overall length of the delay is also a factor that must have significance to the determination.
(¶43 (citations omitted)).
The court identifies other pertinent factors as well: whether the defendant is in custody for some other reason, whether pre-charge evidence gathering is necessary, and whether, if the initial appearance has begun but not finished, the defendant has received the basic information mandated by Wis. Stat. § 970.02(1). (¶434).
None of this happened here: the court set matters over, repeatedly and for many months, noting only that the public defender had not found counsel. So, there was no valid exercise of discretion. (¶¶47-52). The court of appeals also rejects the state’s arguments that Butler shouldn’t get even this modest relief. (¶¶54-55).
Butler also claimed that the delay violated his constitutional rights to due process and to a speedy trial, and thus requires dismissal with prejudice. The court of appeals rejects the first claim as undeveloped, and concludes that this case doesn’t satisfy the test set out in Barker v. Wingo, 407 U.S. 514, 530 (1972), for a speedy trial violation. (¶¶56-65).