On Point blog, page 1 of 1
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).