968.01 Annotation
A criminal complaint may be attacked when there has been an omission of critical material when inclusion is necessary for an impartial judge to determine probable cause. State v. Mann,
123 Wis. 2d 375,
367 N.W.2d 209 (1985).
968.01 Annotation
Neither a presumption of prosecutor vindictiveness or actual vindictiveness was found when, following a mistrial resulting from a hung jury, the prosecutor filed increased charges and then offered to accept a plea bargain requiring a guilty plea to the original charges. Adding additional charges to obtain a guilty plea does no more than present the defendant with the alternative of forgoing trial or facing charges on which the defendant is subject to prosecution. State v. Johnson, 2000 WI 12,
232 Wis. 2d 679,
605 N.W.2d 846.
968.01 Annotation
The test of a complaint is of minimal adequacy in setting forth the essential facts establishing probable cause through a common sense, and not hypertechnical, evaluation. Only affidavits specifically incorporated into the complaint may be used to show probable cause, but the legal term of art, "incorporated by reference," need not be used; the term "attached" was sufficient. State v. Smaxwell, 2000 WI App 112,
235 Wis. 2d 230,
612 N.W.2d 756.
968.01 Annotation
Forms similar to the uniform traffic citations that are used as complaints to initiate criminal prosecutions in certain misdemeanor cases are sufficient to confer subject matter jurisdiction on the court, but any conviction that results from their use in the manner described in the opinion is null and void; ss. 968.02, 968.04, 971.01, 971.04, 971.05 and 971.08 are discussed. 63 Atty. Gen. 540.
968.02
968.02
Issuance and filing of complaints. 968.02(1)
(1) Except as otherwise provided in this section, a complaint charging a person with an offense shall be issued only by a district attorney of the county where the crime is alleged to have been committed. A complaint is issued when it is approved for filing by the district attorney. The approval shall be in the form of a written endorsement on the complaint.
968.02(2)
(2) After a complaint has been issued, it shall be filed with a judge and either a warrant or summons shall be issued or the complaint shall be dismissed, pursuant to
s. 968.03. Such filing commences the action.
968.02(3)
(3) If a district attorney refuses or is unavailable to issue a complaint, a circuit judge may permit the filing of a complaint, if the judge finds there is probable cause to believe that the person to be charged has committed an offense after conducting a hearing. If the district attorney has refused to issue a complaint, he or she shall be informed of the hearing and may attend. The hearing shall be ex parte without the right of cross-examination.
968.02(4)
(4) If the alleged violator under
s. 948.55 (2) or
948.60 (2) (c) is or was the parent or guardian of a child who is injured or dies as a result of an accidental shooting, the district attorney may consider, among other factors, the impact of the injury or death on the alleged violator when deciding whether to issue a complaint regarding the alleged violation. This subsection does not restrict the factors that a district attorney may consider in deciding whether to issue a complaint regarding any alleged violation.
968.02 Annotation
A judge abused his discretion in barring the public from a hearing under sub. (3). State ex rel. Newspapers v. Circuit Court,
124 Wis. 2d 499,
370 N.W.2d 209 (1985).
968.02 Annotation
Sub. (3) does not give a trial court authority to order a district attorney to file different or additional charges than those already brought. Unnamed Petitioner v. Walworth Circuit Ct.,
157 Wis. 2d 157,
458 N.W.2d 575 (Ct. App. 1990).
968.02 Annotation
Forms similar to the uniform traffic citation that are used as complaints to initiate criminal prosecutions in certain misdemeanor cases are sufficient to confer subject matter jurisdiction on the court but any conviction that results from their use in the manner described in the opinion is null and void; ss. 968.02, 968.04, 971.01, 971.04, 971.05, and 971.08 are discussed. 63 Atty. Gen. 540.
968.02 Annotation
Judicial scrutiny of prosecutorial discretion in decision not to file complaint. Becker. 71 MLR 749 (1988).
968.03
968.03
Dismissal or withdrawal of complaints. 968.03(1)
(1) If the judge does not find probable cause to believe that an offense has been committed or that the accused has committed it, the judge shall endorse such finding on the complaint and file the complaint with the clerk.
968.03(2)
(2) An unserved warrant or summons shall, at the request of the district attorney, be returned to the judge who may dismiss the action. Such request shall be in writing, it shall state the reasons therefor in writing and shall be filed with the clerk.
968.03 History
History: 1993 a. 486.
968.04
968.04
Warrant or summons on complaint. 968.04(1)
(1)
Warrants. If it appears from the complaint, or from an affidavit or affidavits filed with the complaint or after an examination under oath of the complainant or witnesses, when the judge determines that this is necessary, that there is probable cause to believe that an offense has been committed and that the accused has committed it, the judge shall issue a warrant for the arrest of the defendant or a summons in lieu thereof. The warrant or summons shall be delivered forthwith to a law enforcement officer for service.
968.04(1)(a)
(a) When an accused has been arrested without a warrant and is in custody or appears voluntarily before a judge, no warrant shall be issued and the complaint shall be filed forthwith with a judge.
968.04(1)(b)
(b) A warrant or summons may be issued by a judge in another county when there is no available judge of the county in which the complaint is issued. The warrant shall be returnable before a judge in the county in which the offense alleged in the complaint was committed, and the summons shall be returnable before the circuit court of the county in which the offense alleged in the complaint was committed.
968.04(1)(c)
(c) A judge may specify geographical limits for enforcement of a warrant.
968.04(1)(d)
(d) An examination of the complainant or witness under
sub. (1) may take place by telephone on request of the person seeking the warrant or summons unless good cause to the contrary appears. The judge shall place each complainant or witness under oath and arrange for all sworn testimony to be recorded, either by a stenographic reporter or by means of a voice recording device. The judge shall have the record transcribed. The transcript, certified as accurate by the judge or reporter, as appropriate, shall be filed with the court. If the testimony was recorded by means of a voice recording device, the judge shall also file the original recording with the court.
968.04(2)(a)(a) In any case the district attorney, after the issuance of a complaint, may issue a summons in lieu of requesting the issuance of a warrant. The complaint shall then be filed with the clerk.
968.04(2)(b)
(b) In misdemeanor actions where the maximum imprisonment does not exceed 6 months, the judge shall issue a summons instead of a warrant unless the judge believes that the defendant will not appear in response to a summons.
968.04(2)(c)
(c) If a person summoned fails to appear in response to a summons issued by a district attorney, the district attorney may proceed to file the complaint as provided in
s. 968.02 and, in addition to endorsing his or her approval on the complaint, shall endorse upon the complaint the fact that the accused failed to respond to a summons.
968.04(3)(a)2.
2. State the name of the crime and the section charged and number of the section alleged to have been violated.
968.04(3)(a)4.
4. State the name of the person to be arrested, if known, or if not known, designate the person to be arrested by any description by which the person to be arrested can be identified with reasonable certainty.
968.04(3)(a)5.
5. State the date when it was issued and the name of the judge who issued it together with the title of the judge's office.
968.04(3)(a)6.
6. Command that the person against whom the complaint was made be arrested and brought before the judge issuing the warrant, or, if the judge is absent or unable to act, before some other judge in the same county.
968.04(3)(a)7.
7. The warrant shall be in substantially the following form:
STATE OF WISCONSIN,
.... County
State of Wisconsin
vs.
.... (Defendant(s))
THE STATE OF WISCONSIN TO ANY LAW ENFORCEMENT OFFICER:
A complaint, copy of which is attached, having been filed with me accusing the defendant(s) of committing the crime of .... contrary to sec. ...., Stats., and I having found that probable cause exists that the crime was committed by the defendant(s).
You are, therefore, commanded to arrest the defendant(s) and bring .... before me, or, if I am not available, before some other judge of this county.
Dated ...., .... (year)
....(Signature)
....(Title)
968.04(3)(a)8.
8. The complaint and warrant may be on the same form. The warrant shall be beneath the complaint. If separate forms are used, a copy of the complaint shall be attached to the warrant.
968.04(3)(b)1.1. The summons shall command the defendant to appear before a court at a certain time and place and shall be in substantially the form set forth in
subd. 3.
968.04(3)(b)2.
2. A summons may be served anywhere in the state and it shall be served by delivering a copy to the defendant personally or by leaving a copy at the defendant's usual place of abode with a person of discretion residing therein or by mailing a copy to the defendant's last-known address. It shall be served by a law enforcement officer.
968.04(3)(b)3.
3. The summons shall be in substantially the following form:
STATE OF WISCONSIN,
.... County
State of Wisconsin
vs.
.... (Defendant)
THE STATE OF WISCONSIN TO SAID DEFENDANT:
A complaint, copy of which is attached, having been filed with me accusing the defendant of committing the crime of .... contrary to sec. ...., Stats., and I having found that probable cause exists that the crime was committed by the defendant.
You, ...., are, therefore, summoned to appear before Branch .... of the .... court of .... County at the courthouse in the City of .... to answer said complaint, on ...., ...., (year) at .... o'clock in the .... noon, and in case of your failure to appear, a warrant for your arrest will be issued.
Dated ...., .... (year)
....(Signature)
....(Title)
STATE OF WISCONSIN,
.... County
State of Wisconsin
vs.
.... (Defendant)
THE STATE OF WISCONSIN TO SAID DEFENDANT:
A complaint, copy of which is attached, having been made before me accusing the defendant of committing the crime of .... contrary to sec. ...., Stats.
You, ...., are, therefore, summoned to appear before Branch .... of the .... court of .... County at the courthouse in the City of .... to answer said complaint, on ...., .... (year), at .... o'clock in the .... noon, and in case of your failure to appear, a warrant for your arrest may be issued.
Dated ...., .... (year)
.... (Signature)
.... District Attorney
968.04(3)(b)4.
4. The complaint and summons may be on the same form. The summons shall be beneath the complaint. If separate forms are used, a copy of the complaint shall be attached to the summons.
968.04(4)(a)(a) The warrant shall be directed to all law enforcement officers of the state. A warrant may be served anywhere in the state.
968.04(4)(b)
(b) A warrant is served by arresting the defendant and informing the defendant as soon as practicable of the nature of the crime with which the defendant is charged.
968.04(4)(c)
(c) An arrest may be made by a law enforcement officer without a warrant in the law enforcement officer's possession when the law enforcement officer has knowledge that a warrant has been issued. In such case, the officer shall inform the defendant as soon as practicable of the nature of the crime with which the defendant is charged.
968.04(4)(d)
(d) The law enforcement officer arresting a defendant shall endorse upon the warrant the time and place of the arrest and the law enforcement officer's fees and mileage therefor.
968.04 History
History: 1973 c. 12;
1975 c. 39,
41,
199;
1977 c. 449 ss.
480,
497;
1983 a. 535; Sup. Ct. Order, 141 Wis. 2d xiii (1987);
1987 a. 151;
1993 a. 486;
1997 a. 250.
968.04 Note
Judicial Council Note, 1988: Sub. (1) (d) permits an arrest warrant or summons to be issued upon the basis of sworn recorded testimony received by telephone on request of the person seeking the warrant or summons unless good cause to the contrary appears. The telephone procedure permits faster processing of the application, while preserving a record of the basis for subsequent review. [Re Order effective Jan. 1, 1988]
968.04 Annotation
To be constitutionally sufficient to support the issuance of an arrest warrant and to show probable cause, a complaint must contain the essential facts constituting the offense charged. A complaint was fatally defective in merely repeating the language of the statute allegedly violated. State v. Williams,
47 Wis. 2d 242,
177 N.W.2d 611 (1970).
968.04 Annotation
A warrant was properly issued upon sworn testimony of a sheriff that an accomplice had confessed and implicated the defendant, since reliable hearsay is permitted and a confession is not inherently untrustworthy. Okrasinski v. State,
51 Wis. 2d 210,
186 N.W.2d 314 (1971).
