Defense win: State may not refile charges that circuit court previously erroneously dismissed with prejudice
State v. Terry Lee Anderson, 2025AP1435, 9/17/26, District IV (not recommended for publication); case activity
Anderson appeals the judgment convicting him of three counts that the circuit court had, in a previous case, dismissed with prejudice. COA agrees that the circuit court lacked the authority to disregard its prior dismissal order as void, and remands with instructions that the court vacate the counts that were previously dismissed with prejudice.
The state originally charged Anderson with four counts in 2021, OWI 4th, disorderly conduct, and two counts of felony bail jumping. (¶4). On the day of trial, the state asked for a continuance, which the circuit court denied. The state then moved to dismiss all counts without prejudice and Anderson argued that the dismissals should be with prejudice. (¶4). The circuit court dismissed the OWI count without prejudice, but dismissed the other three counts with prejudice. (¶5). The state then refiled all four charges and added another count, PAC 4th. (¶6). Anderson moved to dismiss the three charges at issue here, and the state claimed that the circuit court lacked the authority to dismiss any counts in the 2021 case with prejudice. (¶8). The circuit court denied Anderson’s motion, reasoning that it should not have dismissed the disorderly conduct and bail jumping counts with prejudice, and that the dismissals with prejudice would not have “survive[d] on appeal.” (¶10).
Anderson was convicted of all five charges at a jury trial. (¶11). He again challenged the three counts previously dismissed with prejudice postconviction, and the circuit court again denied his motion. (¶¶11-12).
On appeal, it is undisputed that the circuit court lacked the authority to dismiss the three charges at issue with prejudice. A circuit court “do[es] not possess the power to dismiss a criminal case with prejudice prior to the attachment of jeopardy[,] except in the case of a violation of a constitutional right to a speedy trial.” State v. Braunsdorf, 98 Wis. 2d 569, 586, 297 N.W.2d 808 (1980). However, the state did not attempt to correct the circuit court’s error in the 2021 case through a motion for reconsideration or an appeal. Instead, it now argues that it was allowed to disregard the dismissal order because the court lacked the authority to enter that order, leaving the state free to refile the charges and secure convictions as if the dismissal order had no legal effect. (¶15). COA frames the issues as follows: “(1) the legal effect of a dismissal with prejudice; and (2) whether the dismissal order was “void” or “voidable” as a result of the circuit court’s erroneous dismissal with prejudice in the 2021 case.” (¶16).
First, when a case or charges are dismissed with prejudice, a defendant is protected from the risk of further litigation, as any future action on the same claims is barred. (¶17). Thus, the dismissal order in the 2021 case protected Anderson from further litigation on the three counts, unless there was some other reason that the dismissal order had no legal effect. (¶18).
Second, COA considers whether the order was void or voidable. (¶19). A judicial order is void if any of the following three conditions are absent: “(1) the court has subject matter jurisdiction; (2) the court has personal jurisdiction; [and] (3) adequate notice has been afforded the affected persons.” State v. Campbell, 2006 WI 99, ¶43, 294 Wis. 2d 100, 718 N.W.2d 649. By contrast, an order that contains legal errors but is otherwise valid is considered voidable, but not void. Id. Although the state made no argument as to the applicable law here, COA applies the test and concludes that the order is merely voidable because the required conditions were present. (¶¶23-24).
Therefore, COA conclude that the circuit court erred when it disregarded its ruling in the 2021 case and denied Anderson’s motion to dismiss in the 2022 case. (¶25). COA then addresses and rejects several arguments from the state’s supplemental brief. (¶¶26-27).