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Forfeited Issue: Deferred Prosecution Agreement Argument

State v. Chase E. Kaczmarski, 2009 WI App 117
For Kaczmarski: Harold L. Harlowe, David M. Gorwitz


¶7        Forfeiture is a rule of judicial administration, and whether we apply the rule is a matter addressed to our discretion. [3] See Ford Motor Co. v. Lyons, 137 Wis. 2d 397, 417, 405 N.W.2d 354 (Ct. App. 1987).We generally do not consider arguments not raised in the circuit court. See Gibson v. Overnite Transp. Co., 2003 WI App 210, ¶9, 267 Wis. 2d 429, 671 N.W.2d 388.

¶8        We conclude that Kaczmarski has forfeited his argument that the deferred prosecution agreement is subject to Wis. Stat. § 971.37. At the hearing on Kaczmarski’s motion to compel enforcement of the agreement, defense counsel expressly stated that no statute applied to the agreement, although he expressed his belief that Wis. Stat. § 971.39 provided some guidance. Kaczmarski failed to argue to the circuit court that § 971.37 applied to the agreement. In his reply brief, Kaczmarski essentially concedes that he did not raise this issue before the circuit court.

 [3] The State uses the term forfeit and waiver interchangeably in its briefs. We note that our supreme court in State v. Ndina, 2009 WI 21, ¶¶29-30, __ Wis. 2d __, 761 N.W.2d 612, has determined that “forfeit” is the more appropriate term in the context presented here.



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