State v. Akins

544 N.W.2d 392, 198 Wis. 2d 495, 1996 Wisc. LEXIS 8
CourtWisconsin Supreme Court
DecidedFebruary 1, 1996
Docket94-1872-CR
StatusPublished
Cited by14 cases

This text of 544 N.W.2d 392 (State v. Akins) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Akins, 544 N.W.2d 392, 198 Wis. 2d 495, 1996 Wisc. LEXIS 8 (Wis. 1996).

Opinions

JON P. WILCOX, J.

This case is here on certification from the Wisconsin Court of Appeals. Two issues have been certified for our review. The first is whether Wis. Stat. § 970.03 (1993-94)1 denies a defendant equal protection of the laws by employing different procedural standards for criminal defendants charged under [499]*499single or multiple count complaints. The defendant asserts that the statute incorporates unequal treatment in that sub. (7) allows for a bind over on probable cause to believe the defendant committed "a felony" in a single count complaint whereas sub. (10) requires a finding of probable cause as to the particular felony in each count of a multiple count complaint. We hold that single and multiple count complaints, as prescribed under §§ 970.03(7) and (10), employ the same preliminary hearing rules and procedural treatment and therefore do not deny a defendant equal protection of the laws. Under both subsections, the State need only establish probable cause to believe the defendant committed a felony with respect to each transactionally distinct count in a complaint.

The second issue we consider is whether the prosecutor after a bind over may reallege in the information the same crime charged in the complaint, where the court commissioner has made a specific finding that the State failed to establish probable cause with respect to that charge, but did establish probable cause to believe the defendant committed another felony. We hold that prosecutors, in properly exercising their broad charging discretion under Wis. Stat. § 971.01(1), may file any charge in the information as long as it is transactionally related to a count on which bind over was ordered.

FACTS AND PROCEDURE

On January 20, 1994, the plaintiff-respondent State of Wisconsin (State) filed a criminal complaint charging the defendant-appellant Terry Akins (Akins) with one count of armed burglary, as party to the crime, contrary to Wis. Stat. §§ 943.10(1) and (2)(b) and Wis. Stat. § 939.05. A preliminary hearing in this case [500]*500was conducted on February 23, 1994, before Court Commissioner Lawrence I. Grazeley. See Wis. Stat. § 970.03(1).2 At the conclusion of the hearing, the court commissioner agreed with Akins' argument that probable cause to believe that he had entered the premises without permission had not been established. However, the commissioner did find probable cause to believe that another felony, theft of a firearm, had been committed, notwithstanding the alleged permissive entry. Akins was bound over for trial on that basis. See § 970.03(7).3 The hearing concluded with the following exchange between defense counsel and the commissioner, which in part gives rise to this appeal:

Ms. Wolfe: But I would request that the Court indicate on the record that there was not sufficient probable cause for the specific charge of armed burglary.
The Court: I thought I did.
Ms. Wolfe: Okay. I just wanted it clear.
The Court: But that's my finding. But, again,
1 don't think that the findings of the commissioner are significant. The only finding that really counts is whether I find probable cause that a felony has been committed. And that's the finding. My view is that the evidence was not sufficient to establish probable cause for the crime alleged, but I don't know what significance that has. In any event the defendant is bound over for trial.

[501]*501On March 8, 1994, the State filed an information charging Akins with armed burglary. Shortly thereafter, Akins filed a motion to dismiss the information, claiming that realleging the armed burglary charge, for which there was no probable cause established at the preliminary hearing, was an abuse of prosecutorial discretion. Two non-evidentiary hearings were held on the matter, the Honorable William M. Atkinson, presiding. The circuit court filed a written decision denying the motion to dismiss, dated July 11, 1994.

The court concluded that the prosecutor had properly exercised his broad charging discretion in filing a charge in the information which was within the confines of, and not wholly unrelated to, the evidence adduced at the preliminary hearing,4 despite the commissioner's determination that no probable cause existed to file the same charge during the hearing. The court relied upon our decision in State v. Hooper, 101 Wis. 2d 517, 305 N.W.2d 110 (1981) to note that once the bind over decision is made, the only issue remaining is whether the prosecutor has abused his discretion in issuing such a charge. The circuit court referred to language in Hooper which established the controlling standard of review when a defendant challenges the precise charge, not the bind over decision, in a single count complaint:

However, where the challenge is not to the bindover decision, but to the specific charge recited in the information (as in this case), we hold that the trial judge's review is only as to the question of whether the district attorney abused his discretion in issuing a charge not within the confines of and "wholly [502]*502unrelated" to the testimony received at the preliminary examination.

Id. at 537. (Emphasis in original.) Judge Atkinson concluded that the evidence presented at Akins' preliminary hearing supported the State's charging decision, thereby satisfying the required standard.

Akins filed a petition for leave to appeal from the non-final order, which was granted by the court of appeals. The sole issue raised by Akins before the appellate court was whether Wis. Stat. § 970.03 denied him equal protection of the laws.5 Pursuant to Wis. Stat. (Rule) 809.61, the court of appeals certified the case to this court for our review.

I. Equal Protection.

Akins challenges the constitutionality of Wis. Stat. § 970.03 on the grounds that accused felons facing multiple count complaints under sub. (10) are afforded greater protection than those facing only a single count criminal complaint under sub. (7). He contends that this procedural difference lacks a rational basis, and therefore violates the equal protection clauses of the United States and Wisconsin Constitutions.

The constitutionality of a statute presents a question of law which this court considers utilizing a de novo standard of review. State v. McManus, 152 Wis. 2d 113, 129, 447 N.W.2d 654 (1989). "Legislative enact[503]

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State v. Akins
544 N.W.2d 392 (Wisconsin Supreme Court, 1996)

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Bluebook (online)
544 N.W.2d 392, 198 Wis. 2d 495, 1996 Wisc. LEXIS 8, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-akins-wis-1996.