955 N.W.2d 424
Wis. Ct. App.2021Background
- On Sept. 10, 2018 Lee was charged with felonies, bail was set at $25,000, triggering a statutory requirement that a preliminary hearing be held within 10 days for detained defendants.
- Lee was found SPD-eligible but the SPD could not immediately locate private counsel; Lee remained in custody and unrepresented for roughly 101 days before an SPD attorney was finally appointed (appointment Dec. 21, 2018; preliminary hearing Jan. 2, 2019).
- From Sept. 14 through Dec. 14, court commissioners and judges held repeated sua sponte review hearings and each time extended the 10-day deadline for the preliminary hearing based solely on the SPD’s ongoing search for counsel.
- At an Nov. 7 hearing the SPD reported contacting “at least 100” attorneys who declined representation; the court did not probe reasons for refusals or meaningfully consider appointing counsel at county expense.
- Lee moved to dismiss for statutory and constitutional violations; the circuit court denied the motion. The Court of Appeals reversed, holding the repeated extensions ultimately constituted an erroneous exercise of discretion and ordering dismissal without prejudice for lack of personal jurisdiction.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Lee) | Held |
|---|---|---|---|
| Whether sua sponte extensions based solely on SPD delay satisfied “cause” under Wis. Stat. § 970.03(2) | SPD’s unsuccessful search is sufficient cause to extend the preliminary-hearing deadline | Initial SPD difficulty may justify short delays but sustained extensions require fuller inquiry into alternatives and prejudice | Court: SPD delay can be cause, but repeated sua sponte extensions here lacked an adequate on-the-record, Selders-style inquiry and therefore were an erroneous exercise of discretion |
| Whether the circuit court was required to appoint counsel at county expense when SPD could not find counsel | No categorical duty to appoint at county expense; SPD is primary mechanism | Court should have considered (and may be required in some circumstances to use) court appointment when SPD fails for extended periods | Court: not automatically required to appoint, but availability of court-appointed counsel must be a considered alternative and factored into the good-cause analysis |
| Standard for courts acting sua sponte to extend the preliminary-hearing deadline | Sua sponte extensions are permissible and burden rests with court to manage docket | Courts must meaningfully consider justification, prejudice, public interest, alternative means to secure counsel, and county costs | Court: sua sponte extensions are allowed, but require a relatively thorough, on-the-record balancing of Selders factors (justification, prejudice, public interest) and alternatives like court appointment |
| Remedy for failure to hold preliminary hearing within statutory time without proper cause | Even if statutory error, remedy is dismissal without prejudice (loss of personal jurisdiction) | Urged dismissal and, as to constitutional claims, potentially greater relief | Court: Dismissal without prejudice is the proper remedy; constitutional claims either deficient or undeveloped and not a basis for broader relief |
Key Cases Cited
- State v. Dean, 163 Wis.2d 503 (Ct. App.) (courts retain inherent authority to appoint counsel at county expense despite SPD scheme)
- State v. Selders, 163 Wis.2d 607 (Ct. App.) (court must weigh justification for adjournment, prejudice to opposing party, and public interest when granting adjournments)
- Crummel v. State, 46 Wis.2d 348 (Sup. Ct.) (adjournments may be appropriate to accommodate circumstances outside parties’ control)
- State ex rel. Klinkiewicz v. Duffy, 35 Wis.2d 369 (Sup. Ct.) (failure to hold timely preliminary hearing results in loss of personal jurisdiction and dismissal without prejudice)
- State v. Stoeckle, 41 Wis.2d 378 (Sup. Ct.) (statutory preliminary-hearing timetable does not require dismissal with prejudice for delay)
- Sparkman v. State, 27 Wis.2d 92 (Sup. Ct.) (historical recognition of preliminary hearing as a protection against improvident prosecution and a source for court-appointed counsel authority)
- Douglas Cnty. v. Edwards, 137 Wis.2d 65 (Sup. Ct.) (court may appoint counsel at county expense when SPD declines or cannot provide representation)
- State v. Brissette, 230 Wis.2d 82 (Ct. App.) (purpose of preliminary hearing is to prevent prolonged detention when the State cannot muster minimal proof)