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Deferred Prosecution Agreement (Domestic Abuse), § 971.37 – Validity

State v. Sean M. Daley, 2006 WI App 81, on remand, PFR filed 5/10/06; prior history: 2005 WI App 260, decision vacated and remanded, 2006 WI 25
For Daley: Kirk B. Obear

Issue/Holding: A deferred prosecution agreement, whereby the defendant enters no contest pleas but entry of judgment of conviction is stayed, conditioned on compliance with terms of the agreement, satisfies § 971.37:

¶9        Daley implies that requiring a plea is not allowed because it is not specifically authorized in Wis. Stat. § 971.37. However, the legislature plainly contemplated that parties would negotiate appropriate conditions in a deferred prosecution agreement commensurate with the individual facts of each case. While § 971.37(1m)(b) specifies certain components that shall be in a deferred prosecution agreement, there is no indication these are to be the sole components. Indeed, § 971.37(1m)(c)1. indicates that the agreement may require payment of the domestic abuse surcharge. This indicates the legislature never intended § 971.37(1m)(b) to be exclusive. [2]

[2] This case is not similar to State v. Dawson, 2004 WI App 173, 276 Wis. 2d 418, 688 N.W.2d 12. There, as part of a plea agreement, the State agreed to reopen  Dawson’s judgment of conviction and amend a charge of first-degree sexual assault of a child if Dawson successfully completed probation. Id., ¶2. We allowed Dawson to withdraw his plea as unknowing because he had agreed to a legal impossibility. Id., ¶14. The State has no authority to reopen a judgment and the only legal reward for completing probation is discharge. Id., ¶¶9, 14. Here, Daley’s deferred prosecution agreement is permissible under the statute and the agreement’s completion does not present a legal impossibility.

The supreme court vacated the court of appeals’ decision and remanded for reconsideration of a separate issue (whether the motion to withdraw plea should be treated as pre- or post-sentencing; the issue summarized above is simply a reissuance of the original text; nothing has changed except the cite.


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