De
novo preliminary hearings not allowed
By
David Ziemer
Wisconsin Law Journal
Jan.
12, 2005
 |
“Because
Wis. Stat. Sec. 970.04 lays out the only scenario in which the legislature has
recognized a statutory right to a second preliminary examination on the same charge,
we reject Gillespie's contention that the circuit court erred in denying his request
for a de novo preliminary hearing.” Hon.
Neal Nettesheim Wisconsin Court of Appeals |
A
criminal defendant has no right to a de novo preliminary hearing, the Wisconsin
Court of Appeals held on Jan. 5.
Following
a preliminary hearing, a circuit court commissioner found probable cause to believe
that Eric D. Gillespie had committed a felony and bound him over for trial. Gillespie
then moved for a de novo preliminary hearing before the circuit court, citing
sec. 757.69(8). Kenosha County Circuit Court Judge Wilbur W. Warren denied the
motion, instead conducting a review based on the transcript of the preliminary
hearing.
Gillespie
appealed, but the court of appeals affirmed in a decision by Judge Neal Nettesheim.
Section
757.69 provides in relevant part: "(1)(b) ... a circuit court commissioner
employed on a full-time basis may conduct the preliminary examination and arraignment
and, with the consent of both the state and the defendant, accept a guilty plea.
...
(8)
Any decision of a circuit court commissioner shall be reviewed by the judge of
the branch of court to which the case has been assigned, upon motion of any party.
Any
determination, order, or ruling by a circuit court commissioner may be certified
to the branch of court to which the case has been assigned, upon a motion of any
party for a hearing de novo."
Gillespie
argued that the second sentence of subsec. (8) entitled him to a de novo hearing,
but the court disagreed, citing sec. 970.04. That section provides, "If a
preliminary examination has been had and the defendant has been discharged, the
district attorney may file another complaint if the district attorney has or discovers
additional evidence."
| What
the court held Case:
State of Wisconsin v. Eric D. Gillespie, No. 04-1758-CR. Issue:
Can a defendant obtain a de novo preliminary hearing in the circuit court after
bind over by a court commissioner? Holding:
No. Review of a preliminary hearing decision is limited to review on the transcript. |
The court
concluded that this statute, as the more specific statute governing the circumstances
under which a second preliminary examination may occur, controls over sec. 757.69(8),
the more general statute relating to the powers of a court commissioner.
The
court reasoned, "Wisconsin Stat. Sec. 757.69 is a part of Wis. Stat ch. 757,
entitled 'General Court Provisions.' The statute itself, as the title recites,
is a compilation of the powers and duties of circuit court commissioners. The
analysis of the statute by the Legislative Reference Bureau confirms this, stating
that the purpose of the bill creating the statute was, in part, to consolidate
all of the powers and duties of court commissioners into one chapter of the statutes.
In comparison, Wis Stat. ch. 970 is part of Wisconsin's Criminal Procedure Code,
which governs all criminal proceedings. See Wis. Stat. Sec. 967.01. Wisconsin
Stat Secs. 970.03 to 970.05 of the Criminal Procedure Code govern the procedures
relating to preliminary hearings. Immediately following sec. 970.03, the statute
that confers the right to a preliminary hearing, the legislature expressly addresses
in sec. 970.04 the circumstances under which a second preliminary examination
can be held. While the factual scenario set forth in sec. 970.04, one in which
the defendant has been discharged and a new complaint filed, is different from
that presented in Gillespie's case, it nevertheless reveals that the legislature
had the opportunity to address a second examination in Gillespie's situation and
chose not to do so (cites omitted)."
The
court also noted that the Wisconsin Supreme Court has held that a motion to dismiss
is the proper procedure for obtaining circuit court review of a court commissioner's
bindover ruling and that such review is limited to a transcript of the preliminary
examination. State ex rel. Dowe v. Circuit Court for Waukesha County, 184 Wis.
2d 724, 729, 731, 516 N.W.2d 714 (1994).
The court
concluded that, the legislature's enactment of sec. 757.69(8) was not aimed at
overturning this precedent, because nothing in the legislative history suggests
any such intent.
The
court concluded, "Because Wis. Stat. Sec. 970.04 lays out the only scenario
in which the legislature has recognized a statutory right to a second preliminary
examination on the same charge, we reject Gillespie's contention that the circuit
court erred in denying his request for a de novo preliminary hearing."
Accordingly,
the court affirmed, and remanded for further proceedings.
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here for Case Analysis.
David
Ziemer can be reached by email.
