On Point blog, page 1 of 1
Defense win: Nonprosecution agreement isn’t void for violating public policy
State v. Debra L. Rippentrop & Steven E. Rippentrop, 2023 WI App 15; case activity (including briefs) 2022AP92-CR and 2022AP93-CR
The nonprosecution agreement the Rippentrops made with the state doesn’t violate public policy and is therefore enforceable, and that requires the criminal charges filed against them to be dismissed with prejudice.
SCOW: 7 misdemeanor retail thefts can =1 felony theft
State v. Autumn Marie Love Lopez & State v. Amy J. Rodriguez, 2019 WI 101, 11/27/19, affirming a published court of appeals decision; case activity (including briefs)
This appeal asked whether the State may charge multiple acts of misdemeanor retail theft under §943.50 as one felony under §971.36(3)(a). The justices split 3-2-2. Five of them answered “yes,” but did not fully agree on a rationale for that mandate. The justices also disagreed over the role titles play in statutory construction and over whether both appellants in a consolidated appeal must file a petition for review.
SCOW will weigh in on aggregation of retail theft charges
State v. Autumn Marie Love Lopez & Amy J. Rodriguez, 2017AP913-CR & 2017AP914-CR, petition for review granted 4/9/19; case activity (including briefs)
Issue:
Does either Wis. Stat. § 971.36 or inherent prosecutorial charging discretion allow a prosecutor to charge a single felony count of retail theft for multiple separate acts of theft, each involving less than $500 in merchandise, committed over a span of time?
Defense win! Circuit court erroneously denied State’s motion to dismiss and then to amend charge
State v. Esmeralda Rivera-Hernandez, 2018AP311-312-CR, 2/20/19, District 2 (1-judge opinion; ineligible for publication); case activity (including briefs)
DAs have almost limitless discretion in deciding whether to initiate a prosecution. But their discretion to terminate a prosecution is subject to independent review by the circuit court, which must consider the public’s interest in: (1) the proper enforcement of its laws, and (2) deferring to the prosecutor’s legitimate discretion. See State v. Kenyon, 85 Wis. 2d 36, 45, 270 N.W.2d 170 (1978). In this case, the court of appeals holds the circuit court erroneously exercised its discretion when it considered (1) but not (2).
Prosecuting collateral consequences
A prosecutor’s exercise of discretion can trigger or avoid collateral consequences for your client. This new law review article analyzes how and why prosecutors make these decisions.
State barred from amending OWI charge from felony to misdemeanor
State v. Brian R. Corvino, 2016 WI App 52; case activity (including briefs)
This decision examines § 967.055(2)(a), which requires the State to apply to the circuit court before amending an OWI charge. The court of appeals found that amending the charge here would be inconsistent with the public policy of deterring drunk-driving and held that the circuit court had the inherent authority to order the State to file an Information charging Corvino’s 4th OWI as a felony.
E pluribus unum: Court of Appeals addresses notice, unanimity, venue and statute of limitations issues arising from charging multiple thefts in a single count
State v. Jeffrey L. Elverman, 2015 WI App 91; case activity (including state’s brief)
The court rejects all challenges to a conviction of theft of more than $10,000. The issues mostly spring from the state’s use of Wis. Stat. § 971.36(4), which permits, under certain circumstances, the aggregation of multiple thefts into a single count.