In 2018, the State charged Leighton with misdemeanor theft and fraudulent use of a credit card, both as repeaters. In 2020, he asked the DA for “prompt disposition” of his case per §971.11. Receiving no response, he moved for dismissal, which the court granted without prejudice. On appeal, he says dismissal should have been with prejudice. The court of appeals disagreed due to the victim’s rights.
Section 971.11 provides for prompt disposition of intrastate detainers. When a warden receives notice of an untried criminal case, the warden shall, at the inmate’s request, ask the DA for prompt disposition of the case. Wis. Stat. §971.11(1). If the charged crime is a misdemeanor, the DA has 90 days to dismiss it or bring the case for trial. Wis. Stat. §971.11(3). If the DA violates this deadline, “the case shall be dismissed.” Wis. Stat. §971.11(7).
Leighton acknowledged that the circuit court could dismiss his case with or without prejudice. He argues that the court erroneously exercised its discretion under State v. Davis, 248 Wis. 2d 986, 637 N.W.2d 62, 2001 WI 136 (2001).
Davis holds that when deciding whether to dismiss a case with or without prejudice, the circuit court should consider a long of list factors, including: the reasons for the length of the delay in bringing the case to trial, whether the accused contributed to the delay, the harm to the accused from the delay, the delay’s effect on his defenses, possibility to transfer to another institution, programming, the possibility of concurrent sentences, and so on. Id., ¶29
Leighton argued that the court gave the State a complete pass due to the pandemic. He served the DA in April 2020–about a year and a half after he was charged and shortly after SCOW suspended jury trials. The State never delivered a signed writ to produce him from Stanley Correctional. The prison was not denying writs during the pandemic, and it was allowing defendants to do zoom hearings in May 2020. Jury trials resumed in August 2020. The State didn’t bother to bring him in for his initial appearance until 150 days after jury trials resumed–in February 2021.
The court of appeals doesn’t address any of these arguments. It affirmed based on the victim’s rights:
Opinion, ¶29. . . . The circuit court here considered the appropriate Davis factors and found that the victim’s rights weighed heavily in its decision to dismiss without prejudice. If Leighton’s case had been dismissed with prejudice, the victim of Leighton’s alleged crimes would have been without a remedy to recover restitution in the criminal matter. The transcript reflects the circuit court gave thoughtful consideration to both the effect of the State’s violation on Leighton—whether it prejudiced him—and the effect on the victim. The circuit court also assessed the reasons offered for the delay and reached a rational determination that dismissal without prejudice was appropriate in Leighton’s case.