State v. Jennings

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

¶ 28. (dissenting). I agree with the court of appeals that the action in the present case was not timely commenced.

¶ 29. Wisconsin Stat. § 939.74(1), a statute of limitations, is clear. It establishes that the prosecution for a felony must commence within six years of the commission of the felony and that the prosecution for a misdemeanor or adultery must commence within three years of the commission of the misdemeanor or adultery. The statute further defines precisely when a prosecution is deemed to have commenced for purposes of this particular section of the Wisconsin Statutes: (1) when a warrant or summons is issued, (2) when an indictment is found, or (3) when an informa*540tion is filed. No mention is made of a complaint or an order to produce. Section 939.74(1) reads as follows:

[P]rosecution for a felony must be commenced within 6 years and prosecution for a misdemeanor or for adultery within 3 years after the commission thereof. Within the meaning of this section, a prosecution has commenced when a warrant or summons is issued, an indictment is found, or an information is filed.1

¶ 30. The majority opinion, however, concludes that the statute does not clearly define when a prosecution is deemed to have commenced for purposes of satisfying the statute of limitations because two other statutes, Wis. Stat. §§ 967.05(1) and 968.02(2), explain situations in which a prosecution may be commenced by a different means — with the filing of a criminal complaint. In addition, the majority opinion concludes that a literal reading of the statute leads to the absurd requirement that a prosecutor issue a warrant for a person already in custody (that is, imprisoned after conviction on another offense) in order to satisfy the statute of limitations.

¶ 31. I dissent because neither conclusion is supported by law or logic and both conclusions require this court to rewrite the statute.

¶ 32. The only way the majority is able to conclude that Wis. Stat. § 939.74(1) is "ambiguous when read in conjunction with Wis. Stat. §§ 967.05(1) and 968.02(2)" is to erase the phrase "within the meaning of this section" that precedes the explanation of when a prosecution commences for purposes of satisfying the statute of limitations. It is true that one method of commencing a prosecution under § 967.05(1) is by filing *541a complaint. It is also true that under § 968.02(2) a criminal proceeding may be commenced when a district attorney files a complaint.

¶ 33. It does not follow, however, that either of these statutes renders ambiguous the language delineating the methods available for commencing a prosecution under § 939.74(1). A statute is not ambiguous simply because it provides a more limited definition of a term than other statutes. Section 939.74(1) expressly states that "within the meaning of this section," a prosecution is commenced when a warrant or summons is issued, an indictment is found, or an information is filed. Nowhere does the statute state that, for purposes of the statute of limitations, a prosecution commences with the filing of a criminal complaint. Thus it is plain that a prosecution may commence with the filing of a criminal complaint for certain purposes, but not for purposes of satisfying the statute of limitations under § 939.74(1).

¶ 34. The majority's conclusion that a literal reading of Wis. Stat. § 939.74(1) leads to an absurd result is similarly flawed. The majority argues that reading § 939.74(1) to require a warrant to be issued in order to toll the statute of limitations where, as in this case, the defendant was serving a sentence in prison convicted of a different crime, would be absurd. The majority concludes, "[T]he legislature could not have intended the absurd result of requiring the issuance of a warrant for statute of limitations purposes under Wis. Stat. § 939.74(1) for an individual who is already in custody."2

¶ 35: The first problem with the majority's "absurd result" conclusion is that it assumes a prosecution *542can be commenced under Wis. Stat. § 939.74(1) only with the issuance of a warrant.3 In fact, the statute considers a prosecution commenced with the issuance of a warrant or summons, the finding of an indictment, or the filing of an information. Thus, nothing about § 939.74(1) requires the issuance of a warrant for statute of limitations purposes where an individual is in prison. The statute allows other methods of commencing an action for purposes of § 939.74(1); the prosecutor may, for example, issue a summons or file an information instead.

¶ 36. The second problem with the majority's conclusion is that it assumes the sole purpose of issuing a warrant is to bring a person into custody. The majority states, "[I]n a situation where the suspect is already in custody, the issuance of a warrant seems, at best, superfluous since the purpose of . obtaining an arrest warrant is to take an individual into custody."4 As § 939.74(1) makes clear, however, there can be additional reasons for obtaining an arrest warrant, such as tolling a statute of limitations on a different crime. Indeed, as the majority opinion points out, the issuance of the warrant, not the execution or service of the warrant, is the key for commencing a criminal prosecution.5

*543¶ 37. The criminal statute of limitations is a well-recognized tenet of criminal procedure that serves important purposes, including assuring that law enforcement officials act promptly to investigate and prosecute criminal activity. The majority's interpretation of § 939.74(1) rewrites the statute to grant the state flexibility in commencing its prosecution, flexibility that the legislature did not intend for it to have and flexibility that undermines the important purposes behind the criminal statutes of limitations.

¶ 38. This court has frequently dismissed civil lawsuits where a party has failed to follow the precise letter of the law when initiating litigation.6 In the criminal context, however, the court apparently feels no compulsion to hold the state to the same high standards to which it holds civil litigants. This cannot be what the legislature intended.

¶ 39. For the foregoing reasons, I dissent.

¶ 40. I am authorized to state that Justice ANN WALSH BRADLEY joins this dissent.

Wis. Stat. § 939.74 (1999-2000) (emphasis added).

Majority op., ¶ 23.

See id.

Majority op., ¶ 22.

See majority op., ¶ 20 (citing State v. Mueller, 201 Wis. 2d 121, 129, 549 N.W.2d 455 (Ct. App. 1996)).

The majority opinion ignores an important difference between a filed criminal complaint and an issued warrant. A prosecutor alone can file a criminal complaint. Wis. Stat. § 968.02(1). By contrast, the issuance of a warrant requires a finding of probable cause by a neutral and detached magistrate. Wis. Stat. § 968.04(1).

See, e.g., Schaefer v. Riegelman, 2002 WI 18, ¶ 46, 250 Wis. 2d 494, 639 N.W.2d 715 (dismissing civil complaint because of "nonprejudicial technicality") (Abrahamson, C.J., dissenting).