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Dismissal under intrastate detainer statute didn’t preclude successive charges arising out of same incident

State v. Alec D. Alford, 2020AP2072-CR, District 2, 3/23/22 (one-judge decision; ineligible for publication); case activity (including briefs)

Dismissal with prejudice for failing to comply with the time limit under the intrastate detainer statute isn’t an “acquittal on the merits” under § 939.71 and thus doesn’t bar filing new charges based on the same course of conduct.

Alford was charged with delivery of cocaine, but the case was dismissed with prejudice after the state failed to bring the case to trial as required under § 971.11(2). The state then charged him with five counts of possession of paraphernalia as a repeater based on he possession of packaging material used in the delivery case. The circuit court dismissed the new charges under § 939.71, which bars prosecution of an act that was charged under another statute and for which there was an “acquittal on the merits.” (¶¶2-3, 5).

The dismissal of the delivery charge wasn’t an acquittal on the merits, based on the Black’s Law Dictionary definitions of “acquittal” and “merits” (¶9) and Evans v. Michigan, 568 U.S. 313 (2013), which lays out which types of “dismissals” of a criminal case constitute an “acquittal” and which do not:

[O]ur cases have defined an acquittal to encompass any ruling that the prosecution’s proof is insufficient to establish criminal liability for an offense. Thus an “acquittal” includes “a ruling by the court that the evidence is insufficient to convict,” a “factual finding [that] necessarily establish[es] the criminal defendant’s lack of criminal culpability,” and any other “rulin[g] which relate[s] to the ultimate question of guilt or innocence.” These sorts of substantive rulings stand apart from procedural rulings that may also terminate a case midtrial, which we generally refer to as dismissals or mistrials. Procedural dismissals include rulings on questions that “are unrelated to factual guilt or innocence,” but “which serve other purposes,” including “a legal judgment that a defendant, although criminally culpable, may not be punished” because of some problem like an error with the indictment.

(¶7, quoting Evans, 568 U.S. at 319-20).

Applying this standard to Alford’s case,

there is no way in which the circuit court’s dismissal with prejudice of [the] case [charging delivery]—based solely on the State’s failure in that case to diligently and timely prosecute the matter—could be reasonably viewed as an “acquittal” much less an “acquittal on the merits.” There was not even a consideration, much less a determination, of “factual guilt or innocence.” See Evans, 568 U.S. at 319; see also State v. Alvarado, 2017 WI App 53, ¶9, 377 Wis. 2d 710, 903 N.W.2d 122 (“acquittals ‘resolve factual elements of the offense’” (quoting State v. Turley, 128 Wis. 2d 39, 49, 381 N.W.2d 309 (1986))). The dismissal of [the delivery case] with prejudice was strictly “a dismissal on a procedural ground ‘unrelated to factual guilt or innocence,’ like a question of ‘preindictment delay.’” See Evans, 568 U.S. at 320 (citation omitted). As a result, Wis. Stat. § 939.71 does not come into play and provides Alford no help.

(¶10).

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