968.01 AnnotationA prosecutor has great discretion in charging decisions and generally answers to the public, not the courts, for those decisions. As such, courts review the prosecutor’s charging decisions for an erroneous exercise of discretion. If there is a reasonable likelihood that a prosecutor’s decision to bring additional charges is rooted in prosecutorial vindictiveness, a rebuttable presumption of vindictiveness applies. If there is no presumption of vindictiveness, the defendant must establish actual prosecutorial vindictiveness. The filing of additional charges during the give-and-take of pretrial plea negotiations does not warrant a presumption of vindictiveness. State v. Cameron, 2012 WI App 93, 344 Wis. 2d 101, 820 N.W.2d 433, 11-1368. 968.01 AnnotationThe state has discretion to charge a defendant with one continuing offense based on multiple criminal acts when the separately chargeable offenses are committed by the same person at substantially the same time and relating to one continued transaction. In that situation, the nature of the charge is a matter of election on the part of the state. Moreover, in s. 971.36 (3) (a) the legislature has explicitly provided prosecutors with discretion to charge multiple thefts as a single crime when the property belongs to the same owner and the thefts are committed pursuant to a single intent and design or in execution of a single deceptive scheme. State v. Jacobsen, 2014 WI App 13, 352 Wis. 2d 409, 842 N.W.2d 365, 13-0830. 968.01 AnnotationMultiplicity arises when a defendant is charged in more than one count for a single offense. Challenges may arise when a single course of conduct is charged in multiple counts of the same statutory offense. Multiplicity claims are examined using a two-part test: 1) whether the charged offenses are identical in law and in fact; and 2) whether the legislature intended to authorize multiple punishments. If the first part of the test reveals that the charged offenses are not identical in law and in fact, a presumption arises that the legislature did not intend to preclude cumulative punishments. State v. Jacobsen, 2014 WI App 13, 352 Wis. 2d 409, 842 N.W.2d 365, 13-0830. 968.01 AnnotationWhile citation to a specific statute may be the preferred practice, failure to specifically cite to a statute in the information and complaint is harmless error when there is no prejudice to the defendant. State v. Elverman, 2015 WI App 91, 366 Wis. 2d 169, 873 N.W.2d 528, 14-0354. 968.01 AnnotationForms similar to the uniform traffic citation that are used as complaints to initiate criminal prosecutions in certain misdemeanor cases are sufficient to confer subject matter jurisdiction on the court, but any conviction that results from their use in the manner described in the opinion is null and void. Discussing this section and ss. 968.02, 968.04, 971.01, 971.04, 971.05, and 971.08. 63 Atty. Gen. 540.
968.02968.02 Issuance and filing of complaints. 968.02(1)(1) Except as otherwise provided in this section, a complaint charging a person with an offense shall be issued only by a district attorney of the county where the crime is alleged to have been committed. A complaint is issued when it is approved for filing by the district attorney. The approval shall be in the form of a written endorsement on the complaint or the electronic signature of the district attorney as provided in s. 801.18 (12). 968.02(2)(2) After a complaint has been issued, it shall be filed with a judge and either a warrant or summons shall be issued or the complaint shall be dismissed, pursuant to s. 968.03. Such filing commences the action. 968.02(3)(3) If a district attorney refuses or is unavailable to issue a complaint, a circuit judge may permit the filing of a complaint, if the judge finds there is probable cause to believe that the person to be charged has committed an offense after conducting a hearing. If the district attorney has refused to issue a complaint, he or she shall be informed of the hearing and may attend. The hearing shall be ex parte without the right of cross-examination. 968.02(4)(4) If the alleged violator under s. 948.55 (2) or 948.60 (2) (c) is or was the parent or guardian of a child who is injured or dies as a result of an accidental shooting, the district attorney may consider, among other factors, the impact of the injury or death on the alleged violator when deciding whether to issue a complaint regarding the alleged violation. This subsection does not restrict the factors that a district attorney may consider in deciding whether to issue a complaint regarding any alleged violation. 968.02 HistoryHistory: 1977 c. 449; 1991 a. 139; 1999 a. 185; Sup. Ct. Order No. 14-03, 2016 WI 29, 368 Wis. 2d xiii. 968.02 AnnotationA judge abused the judge’s discretion in barring the public from a hearing under sub. (3). State ex rel. Newspapers, Inc. v. Circuit Court, 124 Wis. 2d 499, 370 N.W.2d 209 (1985). 968.02 AnnotationSub. (3) does not give a trial court authority to order a district attorney to file different or additional charges than those already brought. State ex rel. Unnamed Petitioner v. Circuit Court, 157 Wis. 2d 157, 458 N.W.2d 575 (Ct. App. 1990). 968.02 AnnotationSub. (3) does not confer upon the person who is the subject of a proposed prosecution the right to participate in any way or to obtain reconsideration of the ultimate decision reached. A defendant named in a complaint issued pursuant to sub. (3) has the same opportunity to challenge in circuit court the legal and factual sufficiency of that complaint as a defendant named in a complaint issued pursuant to sub. (1). State ex rel. Kalal v. Circuit Court, 2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110, 02-2490. 968.02 AnnotationA refusal to issue a complaint under sub. (3) may be proven directly or circumstantially, by inferences reasonably drawn from words and conduct. The refusal can be open and explicit or indirect and inferred. Inaction alone will ordinarily not support an inference of a refusal to prosecute. State ex rel. Kalal v. Circuit Court, 2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110, 02-2490. 968.02 AnnotationForms similar to the uniform traffic citation that are used as complaints to initiate criminal prosecutions in certain misdemeanor cases are sufficient to confer subject matter jurisdiction on the court, but any conviction that results from their use in the manner described in the opinion is null and void. Discussing this section and ss. 968.01, 968.04, 971.01, 971.04, 971.05, and 971.08. 63 Atty. Gen. 540.
968.02 AnnotationJudicial Scrutiny of Prosecutorial Discretion in the Decision Not to File a Complaint. Becker. 71 MLR 749 (1988).
968.03968.03 Dismissal or withdrawal of complaints. 968.03(1)(1) If the judge does not find probable cause to believe that an offense has been committed or that the accused has committed it, the judge shall endorse such finding on the complaint and file the complaint with the clerk. 968.03(2)(2) An unserved warrant or summons shall, at the request of the district attorney, be returned to the judge who may dismiss the action. Such request shall be in writing, it shall state the reasons therefor in writing and shall be filed with the clerk. 968.03 HistoryHistory: 1993 a. 486. 968.04968.04 Warrant or summons on complaint. 968.04(1)(1) Warrants. If it appears from the complaint, or from an affidavit or affidavits filed with the complaint or after an examination under oath of the complainant or witnesses, when the judge determines that this is necessary, that there is probable cause to believe that an offense has been committed and that the accused has committed it, the judge shall issue a warrant for the arrest of the defendant or a summons in lieu thereof. The warrant or summons shall be delivered forthwith to a law enforcement officer for service. 968.04(1)(a)(a) When an accused has been arrested without a warrant and is in custody or appears voluntarily before a judge, no warrant shall be issued and the complaint shall be filed forthwith with a judge. 968.04(1)(b)(b) A warrant or summons may be issued by a judge in another county when there is no available judge of the county in which the complaint is issued. The warrant shall be returnable before a judge in the county in which the offense alleged in the complaint was committed, and the summons shall be returnable before the circuit court of the county in which the offense alleged in the complaint was committed. 968.04(1)(c)(c) A judge may specify geographical limits for enforcement of a warrant. 968.04(1)(d)(d) An examination of the complainant or witness under sub. (1) may take place by telephone on request of the person seeking the warrant or summons unless good cause to the contrary appears. The judge shall place each complainant or witness under oath and arrange for all sworn testimony to be recorded, either by a court reporter or by means of a voice recording device. The judge shall have the record transcribed. The transcript, certified as accurate by the judge or reporter, as appropriate, shall be filed with the court. If the testimony was recorded by means of a voice recording device, the judge shall also file the original recording with the court. 968.04(2)(a)(a) In any case the district attorney, after the issuance of a complaint, may issue a summons in lieu of requesting the issuance of a warrant. The complaint shall then be filed with the clerk. 968.04(2)(b)(b) In misdemeanor actions where the maximum imprisonment does not exceed 6 months, the judge shall issue a summons instead of a warrant unless the judge believes that the defendant will not appear in response to a summons. 968.04(2)(c)(c) If a person summoned fails to appear in response to a summons issued by a district attorney, the district attorney may proceed to file the complaint as provided in s. 968.02 and, in addition to endorsing his or her approval on the complaint, shall endorse upon the complaint the fact that the accused failed to respond to a summons. 968.04(3)(a)2.2. State the name of the crime and the section charged and number of the section alleged to have been violated. 968.04(3)(a)4.4. State the name of the person to be arrested, if known, or if not known, designate the person to be arrested by any description by which the person to be arrested can be identified with reasonable certainty. 968.04(3)(a)5.5. State the date when it was issued and the name of the judge who issued it together with the title of the judge’s office. 968.04(3)(a)6.6. Command that the person against whom the complaint was made be arrested and brought before the judge issuing the warrant, or, if the judge is absent or unable to act, before some other judge in the same county. 968.04(3)(a)7.7. The warrant shall be in substantially the following form: STATE OF WISCONSIN,
.... County
State of Wisconsin
vs.
.... (Defendant(s))
THE STATE OF WISCONSIN TO ANY LAW ENFORCEMENT OFFICER:
A complaint, copy of which is attached, having been filed with me accusing the defendant(s) of committing the crime of .... contrary to sec. ...., Stats., and I having found that probable cause exists that the crime was committed by the defendant(s).
You are, therefore, commanded to arrest the defendant(s) and bring .... before me, or, if I am not available, before some other judge of this county.
Dated ...., .... (year)
....(Signature)
....(Title)
968.04(3)(a)8.8. The complaint and warrant may be on the same form. The warrant shall be beneath the complaint. If separate forms are used, a copy of the complaint shall be attached to the warrant. 968.04(3)(b)1.1. The summons shall command the defendant to appear before a court at a certain time and place and shall be in substantially the form set forth in subd. 3. 968.04(3)(b)2.2. A summons may be served anywhere in the state and it shall be served by delivering a copy to the defendant personally or by leaving a copy at the defendant’s usual place of abode with a person of discretion residing therein or by mailing a copy to the defendant’s last-known address. It shall be served by a law enforcement officer. 968.04(3)(b)3.3. The summons shall be in substantially the following form: STATE OF WISCONSIN,
.... County
State of Wisconsin
vs.
.... (Defendant)
THE STATE OF WISCONSIN TO SAID DEFENDANT:
A complaint, copy of which is attached, having been filed with me accusing the defendant of committing the crime of .... contrary to sec. ...., Stats., and I having found that probable cause exists that the crime was committed by the defendant.
You, ...., are, therefore, summoned to appear before Branch .... of the .... court of .... County at the courthouse in the City of .... to answer said complaint, on ...., ...., (year) at .... o’clock in the .... noon, and in case of your failure to appear, a warrant for your arrest will be issued.
Dated ...., .... (year)
....(Signature)
....(Title)
STATE OF WISCONSIN,
.... County
State of Wisconsin
vs.
.... (Defendant)
THE STATE OF WISCONSIN TO SAID DEFENDANT:
A complaint, copy of which is attached, having been made before me accusing the defendant of committing the crime of .... contrary to sec. ...., Stats.
You, ...., are, therefore, summoned to appear before Branch .... of the .... court of .... County at the courthouse in the City of .... to answer said complaint, on ...., .... (year), at .... o’clock in the .... noon, and in case of your failure to appear, a warrant for your arrest may be issued.
Dated ...., .... (year)
.... (Signature)
.... District Attorney
968.04(3)(b)4.4. The complaint and summons may be on the same form. The summons shall be beneath the complaint. If separate forms are used, a copy of the complaint shall be attached to the summons. 968.04(4)(a)(a) The warrant shall be directed to all law enforcement officers of the state. A warrant may be served anywhere in the state. 968.04(4)(b)(b) A warrant is served by arresting the defendant and informing the defendant as soon as practicable of the nature of the crime with which the defendant is charged. 968.04(4)(c)(c) An arrest may be made by a law enforcement officer without a warrant in the law enforcement officer’s possession when the law enforcement officer has knowledge that a warrant has been issued. In such case, the officer shall inform the defendant as soon as practicable of the nature of the crime with which the defendant is charged. 968.04(4)(d)(d) The law enforcement officer arresting a defendant shall endorse upon the warrant the time and place of the arrest and the law enforcement officer’s fees and mileage therefor. 968.04 HistoryHistory: 1973 c. 12; 1975 c. 39, 41, 199; 1977 c. 449 ss. 480, 497; 1983 a. 535; Sup. Ct. Order, 141 Wis. 2d xiii (1987); 1987 a. 151; 1993 a. 486; 1997 a. 250; Sup. Ct. Order No. 19-01, 2019 WI 44, 386 Wis. 2d xvii.
