COA affirms dismissal without prejudice where State did not comply with Interstate Agreement on Detainers.
State v. Larry J. Rush, 2024AP522, 10/6/26, District III (ineligible for publication); case activity
The COA affirmed the circuit court’s order dismissing three misdemeanor charges without prejudice when the State did not comply with the Interstate Agreement on Detainers.
While he was imprisoned at the New Lisbon Correctional Institution, Larry Rush was charged with three misdemeanors of receiving stolen property. On May 23, 2023, Rush submitted a prompt disposition request under the Interstate Agreement on Detainers (IDA). The State received the request on May 30 and the next day the circuit court scheduled a final pretrial conference for September 5 and a jury trial for September 13, 2023. However, August 28, 2023, was the State’s deadline to bring the case for trial under Wis. Stat. § 971.11(3) (requiring the State to either move to dismiss or bring case for trial within 90 days after receiving prompt disposition request from inmate charged with a misdemeanor). (¶¶ 2,5).
On August 31, 2023, the State filed motions to adjourn the jury trial and dismiss the case without prejudice because the district attorney had resigned. Rush responded that the case should be dismissed with prejudice because the State did not comply with the 90-day deadline to bring him to trial and the State did not demonstrate good cause for why it agreed to schedule the trial past the deadline. (¶ 8). The circuit court dismissed without prejudice because defense counsel presumably agreed to the September 13 trial date and Rush did not show he would be adversely affected by dismissal without prejudice. (¶ 9).
Rush argued on appeal that the circuit court erroneously exercised its discretion by dismissing the case without prejudice. The COA agreed with Rush that the record did not support the circuit court finding that he “essentially consented” to scheduling the trial past the August 28, 2023, deadline. (¶ 18).
However, the COA affirmed the circuit court’s finding that Rush was not adversely affected by dismissal without prejudice. The COA rejected Rush’s argument that his programming in the Department of Corrections was jeopardized by the State’s ability to “refile the case whenever it wanted” because he did not “explain why dismissal without prejudice was detrimental to his incarcerated or rehabilitative status where he was ultimately released on a signature bond.” (¶¶ 21-22).
The COA also observed that there was no evidence Rush’s ability to defend against the three counts of receiving stolen property was affected by dismissal without prejudice, and the case concerned three victims whose rights to restitution would be negatively affected if the case were dismissed with prejudice. (¶ 23).