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Plea Agreements – Deferred Prosecution Agreement (§ 971.39) — Procedural Requirements

State v. Rex E. Wollenberg, 2004 WI App 20, PFR filed 1/8/04
For Wollenberg: Susan E. Alesia, SPD, Madison Appellate


¶14. Wollenberg cites State v. Jankowski, 173 Wis. 2d 522, 528, 496 N.W.2d 215 (Ct. App. 1992), to support his claim that he cannot be convicted on the basis of a legal nullity. Jankowski, however, dealt with a different scenario. Jankowski was convicted of violating an injunction. However, the court had extended the injunction beyond the time period allowed by statute and the injunction was therefore invalid. Because the injunction was void, it could not serve as a basis for a criminal conviction and we reversed.

¶15. Wollenberg fails to explain why the DPA, if there was one, should be declared void. His only justification is that the DPA was not in writing. This argument, however, focuses merely on a procedural deficit. Wollenberg makes no argument that he was unaware of any of the contemplated terms of his plea, and he makes no claim that he has been prejudiced by the failure to put the DPA in writing. Thus, there can be no manifest injustice. See Trochinski, 253 Wis. 2d 38, ¶15. His challenge is to form, not to substance, and there is no parallel to Jankowski in this situation. Unlike Jankowski’s conviction, Wollenberg’s burglary and theft charges are not invalid by operation of any statute of limitations.

Wollenberg, as the quote suggests, argues that his deferred prosecution agreement was defective – because not in writing, as required by § 971.30 – hence the judgment of conviction was void. The court says that any defect is one merely of form; but this is clearly dicta: the court just got done saying that the agreement was not in fact a deferred prosecution agreement. It’s rather obvious, isn’t it, that once the court concludes that no deferred prosecution agreement existed that the court has no business discussing the requisites of that (non-existent) agreement?


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