Cooper wins a new trial because the trial court improperly amended the charge against him and denied him an opportunity to present evidence regarding the amended charge. Cooper was also denied the opportunity to cross-examine the testifying officer on both the original charge and the amended charge.
Milwaukee County charged Cooper with reckless driving–endangering safety, and his case was tried to the court. The circuit court held that the evidence did not support the “endangering safety” charge but it did support a “speeding” charge. The clerk pointed out that Cooper wasn’t charged with speeding. This prompted the County to amend his charge to Unreasonable and Imprudent Speed. Over Cooper’s objection, the circuit court found him guilty of this crime.
On appeal, Cooper argued that his case should have been dismissed because he had been denied discovery. The court of appeals declined to address that issue. Instead, it ordered additional briefing and ruled for Cooper based on State v. Peterson, 104 Wis. 2d 616, 312 N.W.2d 784 (1981).
Peterson involved a court trial where the circuit court sua sponte amended a traffic citation after the State’s presentation of evidence. SCOW held that circuit courts have the authority to amend charges sua sponte but then it “must offer both sides an opportunity to submit additional evidence.” Id. at 639.
Peterson also requires the circuit court to find whether the amended charge was tried by express or implied consent. That’s because §802.09 provides that if the issue was tried by express or implied consent it must be treated as if raised in the pleadings.
In Cooper’s case, the County conceded that the circuit court made no finding that he expressly or impliedly consented to the amended charge. In fact, Cooper made it clear he did not consent to the amended charge. The County also conceded that both parties were denied the opportunity to present evidence on the amended charge and that Cooper was denied the ability to cross-examine the testifying officer both on the original citation and the amended citation. Opinion, ¶¶8-9.
The court of appeals accepted the County’s concessions, reversed the judgment, and remanded Cooper’s case for a new trial. Opinion, ¶10. Super for Cooper!