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Interlocutory Appeal – Review in Circuit Court of Bindover by Court Commissioner, by Motion to Dismiss

State v. Eric D. Gillespie, 2001 WI App 35, PFR filed 2/1/05
For Gillespie: John Anthony Ward

Issue: Whether, following bindover by court commissioner under § 757.69(1)(b), a defendant may obtain a “preliminary hearing de novo” (i.e., a second preliminary hearing) in circuit court under § 757.69(8).


¶7 The State contends that WIS. STAT. § 970.04 precludes Gillespie’s request for a second preliminary hearing. The statute states:

Second examination. If a preliminary examination has been had and the defendant has been discharged, the district attorney may file another complaint if the district attorney has or discovers additional evidence.

…¶8 We agree with the State. … While the factual scenario set forth in § 970.04, one in which the defendant has been discharged and a new complaint filed, is different from that presented in Gillespie’s case, it nevertheless reveals that the legislature had the opportunity to address a second examination in Gillespie’s situation and chose not to do so. See A. and A.P. v. Racine County, 119 Wis. 2d 349, 354, 349 N.W.2d 743 (Ct. App. 1984).

¶9 We also observe that the Wisconsin Supreme Court has decreed that a motion to dismiss is the proper procedure for obtaining circuit court review of a court commissioner’s bindover ruling and that such review is limited to a transcript of the preliminary examination. State ex rel. Dowe v. Circuit Court for Waukesha County, 184 Wis. 2d 724, 729, 731, 516 N.W.2d 714 (1994)….


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