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Defenses – Statute of Limitations – Tolled by Plea Agreement

State v. Robert C. Deilke, 2004 WI 104, reversing 2003 WI App 151, 266 Wis. 2d 274, 667 N.W.2d 867
For Deilke: Kelly J. McKnight


¶28 The primary purpose of the statute of limitations is to protect the accused from criminal consequences for remote past actions. State v. Jennings, 2003 WI 10, ¶15, 259 Wis. 2d 523, 657 N.W.2d 393 (citations omitted). However, we have held that prosecution for the act in question tolls the statute of limitations that otherwise would apply. State v. Pohlhammer, 78 Wis. 2d 516, 522, 254 N.W.2d 478 (1977).

¶29 In Pohlhammer, we addressed the consequence to the parties of charges that were withdrawn when a plea bargain resulted in the filing of an amended information to which Pohlhammer pled. On postconviction motion, Pohlhammer argued that the act described in the amended information (making a false representation) was different from the act described in the original information (intentionally damaging a building by means of fire). We agreed, concluding that not all charges that arise out of the same course of conduct comprise the same acts. Id. at 522-23. Therefore, because the amended information was filed more than six years after the complained of act, Pohlhammer argued he had an absolute defense to the charge and his conviction should be vacated. Id. at 522-23. We agreed that the conviction was properly vacated. Id. at 524. However, because the amended information, which was filed based on Pohlhammer’s agreement to plead guilty to the one charge it contained, formed the basis for the plea bargain that Pohlhammer breached through his successful postconviction motion, we returned the parties to “the same posture” they occupied prior to his plea. Id. Accordingly, we reinstated the original information that contained three counts of arson with intent to defraud an insurer, as party to the crime, and permitted further proceedings on those charges. Id. at 524-25.

¶30 We conclude that Pohlhammer provides ample support for the circuit court’s conclusion that Deilke has no statute of limitations defense to the PAC charges he pled to after his original convictions were set aside. …


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