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Defenses – Statute of Limitations, § 939.74(1) – Complaint as Commencing Prosecution of Already-Incarcerated Defendant

State v. Kevin D. Jennings, 2003 WI 10, reversing 2002 WI App 16, 250 Wis. 2d 138, 640 N.W.2d 165
For Jennings: Steven M. Compton


¶1 … At issue is whether a criminal complaint that is filed against a defendant, who is already incarcerated, is sufficient to commence a prosecution. Based on the legislative history of Wis. Stat. § 939.74(1) (1999-2000) and related criminal statutes that deal with the commencement of criminal prosecutions and warrantless arrests, we conclude that if an individual, like Jennings, is already in custody due to incarceration, a complaint is sufficient to commence a prosecution….

¶27. Based on all the above, we hold that when a defendant is already in custody due to his or her incarceration, the filing of a criminal complaint is sufficient to commence a prosecution. Because we hold that the filing of a criminal complaint, without the issuance of a warrant, is sufficient to commence prosecution of a defendant who is already in custody, we do not address whether an order to produce satisfies the “summons” requirement under Wis. Stat. § 939.74(1).

Jennings was identified, from a “cold-hit” DNA search, as the assailant in a December 5, 1992, offense. The complaint was filed December 4, 1998, just under the 6-year statute of limitations wire. However, the initial appearance wasn’t until December 6, so the question is whether issuance of the complaint satisfied the statute, which says that “a prosecution has commenced when a warrant or summons is issued, an indictment is found, or an information is filed.” Seems clear enough; but not so fast: under § 967.05, prosecution may be commenced by filing of a complaint. This potential conflict, the court says, creates an ambiguity and leads the court to the legislative history, which leads the court to say that a prosecution is deemed commenced upon “the earliest action authorized by law to initiate criminal proceedings.” This is more than a little strained. But the holding is, as the above quotes indicate, more limited than that, because the decisive point seems to be that Jennings was already in custody (in prison) when the complaint was issued:

¶24. The State also points to Wis. Stat. § 968.04(1)(a), which states that “[w]hen an accused has been arrested without a warrant and is in custody, . . . no warrant shall be issued and the complaint shall be filed forthwith with a judge.” The State claims that § 968.04(1)(a) accurately describes Jennings’ situation as a “warrantless arrestee in custody.” Jennings disputes the State’s assertion, arguing that he was never arrested or in custody for the sexual assault of M.K. because his incarceration was due to an unrelated crime. We cannot accept Jennings’ proposition.¶25. We agree with the State that based on the totality of the circumstances in this case, it is clear that Jennings was in custody and in essence, under arrest, for the sexual assault charge when the police detectives questioned him while he was incarcerated at Columbia for an unrelated crime. It is undisputed that the officers told Jennings that the purpose of their visit was to inform Jennings that his DNA matched that of M.K.’s assailant and to question him about the sexual assault of M.K. In addition, the officers gave Jennings a Miranda warning, which he waived. A reasonable person in Jennings’ position should have known that he or she would be charged, and was essentially arrested for, the sexual assault of M.K. based on the conclusive DNA evidence and the officers’ interrogation. Since Jennings was already physically in custody due to his incarceration, a warrant to bring him into custody was not necessary. Rather, the next logical procedural step would be to file a criminal complaint, which is what the State did in this case.

This limitation to the holding doesn’t justify the result. § 939.74(1) is clear on its face – it specifically defines what commences a prosecution for limitation purposes, and the operative statutory construction principle is that the specific controls the general. Who cares whether a statutory conflict is establishes by looking elsewhere? But, if “John Doe” DNA warrants are upheld, the practical significance may be limited.


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