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COURT OF APPEALS DECISION DATED AND RELEASED January 30, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2859-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
CITY OF GREENDALE,
Plaintiff-Respondent,
v.
PAULA A. WASHOW,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Milwaukee County:
DANIEL L. KONKOL, Judge. Affirmed.
FINE,
J. Paula Washow appeals from the trial court's order
dismissing without prejudice this traffic-citation action against her.[1] We affirm.
A Village of Greendale
police officer issued a speeding citation to Washow. On the day set for trial, the officer was on vacation and not
available. The trial court denied the
Village's motion for an adjournment, but did grant the Village's request that
the case be dismissed without prejudice.
Washow claims that the trial court erroneously exercised its discretion,
and that the dismissal should have been with prejudice. We affirm.
Prosecution of both
criminal cases and ordinance violations are left to the sound discretion of the
prosecuting officer, subject to the trial court's superintending authority to
deny the prosecuting officer's motion to dismiss unless such dismissal is in the
public interest. State v. Kenyon,
85 Wis.2d 36, 42–47, 270 N.W.2d 160, 162–165 (1978). Trial courts in this state do not have the authority to dismiss
criminal prosecutions with prejudice prior to the attachment of jeopardy unless
the defendant has been deprived of his or her right to a speedy trial. State v. Braunsdorf, 98 Wis.2d
569, 575, 297 N.W.2d 808, 811 (1980).
Inasmuch as Kenyon recognized that the factors governing a
trial court's exercise of discretion in connection with the termination of a
prosecution are the same whether the prosecution is that of, on the one hand, a
civil municipal-ordinance violation or, on the other hand, a criminal case, Kenyon,
85 Wis.2d at 44, 270 N.W.2d at 164, we see no principled reason not to apply
the Braunsdorf rule to prosecutions of municipal ordinance
violations. Indeed, Braunsdorf
recognized that one of the foundations underlying the rule limiting a trial
court's discretion to dismiss criminal cases with prejudice was that dismissal
of a criminal case had “broader implications for society as a whole” than does
the dismissal of the ordinary civil case.
Braunsdorf, 98 Wis.2d at 585, 297 N.W.2d at 816. Dismissal of ordinance violations similarly
have “broader implications for society as a whole” than does the dismissal of a
civil case between private litigants.
The trial court here was
without authority to dismiss the case with prejudice, and, accordingly, did
not, a fortiori, erroneously exercise its discretion in refusing to do
so. Cf. Lievrouw v. Roth,
157 Wis.2d 332, 358-359, 459 N.W.2d 850, 859-860 (Ct. App. 1990) (trial court's
discretionary determination will be upheld on appeal if it is “consistent with
the facts of record and established legal principles”). Washow's claim that the dismissal without
prejudice was just another form of “adjournment,” which the trial court had
denied, was rejected in Braunsdorf, 98 Wis.2d at 576–577, 297
N.W.2d at 811–812, and we reject it here.
By the Court.—Order
affirmed.[2]
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.