State v. Michael D. Lewis, 2004 WI App 211
For Lewis: Timothy A. Provis
¶10. The State does not dispute that it failed to bring Lewis’s case to trial within 120 days after the district attorney’s office received his request for prompt disposition of his case. …
¶11. The statute mandates that when the case is not brought to trial within 120 days, it “shall be dismissed” unless the defendant escapes or otherwise prevents the trial from taking place. Here, two factors influenced the trial court’s decision to reschedule the trial: the court’s crowded trial calendar for the week of September 30, and the prosecutor’s vacation plans. Either of these factors may be an appropriate reason to reschedule a trial within the statutory time limit; however, they do not justify violating a defendant’s statutory right to prompt disposition under the IDA.
¶12. The State argues, however, that Lewis waived his right to a prompt disposition at the September 11, 2002 pretrial conference ….
¶14. The trial court held that Lewis had an “affirmative responsibility” to advise the court of his prompt disposition request. We cannot agree because no such duty exists in the statute. Further, we cannot conclude that Lewis’s attorney, his third attorney on this case, waived Lewis’s statutory right to prompt disposition by stating the rescheduled trial date was “fine.” Waiver of a statutory right must be an intentional and voluntary relinquishment of a known right, and it must be accomplished by a clear and specific renunciation of that right. Mulvaney v. Tri State Truck & Auto Body, Inc., 70 Wis. 2d 760, 768, 235 N.W.2d 460 (1975). Lewis’s attorney acquiesced to the rescheduled trial date only after the prosecutor indicated, incorrectly, that no request for prompt disposition had been filed. This is not an intentional and voluntary relinquishment of a known right. We are troubled by Lewis’s absence from the pretrial hearing and observe that, had he been present, the issue of whether a request for prompt disposition had been filed could have been immediately, and accurately, resolved.3
¶15. We conclude that the trial court misplaced the responsibility for complying with the 120-day time limit on Lewis when it imposed an “affirmative responsibility” on him to advise the court of his properly submitted request. Once the district attorney receives the request, the responsibility for prompt disposition is placed squarely on the district attorney. Wis. Stat. § 971.11(1), (2). We hold that the trial court erred when it failed to dismiss the case in accordance with the mandate of § 971.11(7). We reverse and remand the case and direct the trial court to determine whether dismissal will be with or without prejudice. See Davis, 248 Wis. 2d 986, ¶29.
3 The trial court explained Lewis’s absence from the pretrial hearing as follows: “We don’t have the defendant here. He is in custody, and we were in the middle of a suppression hearing with two other in-custodies, so we are short of transport people.” From this we gather that Lewis would have been there but for transportation issues. It is not explained, however, why Lewis could not have participated by telephone.