Background
In September 2021, the State of Wisconsin charged Leonard Jordan with three felony counts — substantial battery, intimidation of a victim, and strangulation and suffocation — plus two misdemeanor counts, all with domestic abuse and repeater enhancers. At the time of the alleged offenses Jordan was on extended supervision, which was later revoked; he was ordered to serve over five years of reconfinement. Because Jordan was a prison inmate facing felony charges, he was entitled under WIS. STAT. § 971.11 to demand that the State bring his case to trial within 120 days of the district attorney’s receipt of that request.
Jordan filed a pro se prompt disposition motion in circuit court on March 1, 2023, and the Department of Corrections separately transmitted a formal request to the district attorney in April 2023, which the State acknowledged receiving on April 4, 2023. Despite those requests, the case was scheduled for a jury trial on December 11, 2023 — well outside the 120-day window. In September 2023, Jordan moved to dismiss with prejudice. At the motion hearing, the prosecutor conceded the State might not prevail on whether the deadline had been met, and urged the court to dismiss without prejudice rather than with prejudice. The La Crosse County Circuit Court (Judge Elliott M. Levine) dismissed without prejudice, and Jordan appealed.
The sole issue on appeal was whether the circuit court erroneously exercised its discretion in choosing dismissal without prejudice over dismissal with prejudice under § 971.11(7).
The Court’s Holding
The Wisconsin Court of Appeals affirmed the dismissal without prejudice in a per curiam opinion. The court reviewed the circuit court’s ruling for an erroneous exercise of discretion, asking whether the lower court examined the relevant facts, applied the proper legal standards, and engaged in a rational decision-making process. Applying the multi-factor framework established in State v. Davis, 248 Wis. 2d 986 (2001), the appellate court concluded that the circuit court had done so.
The court acknowledged one factual error: the circuit court had misremembered what was said at the April 2023 status hearing, incorrectly characterizing defense counsel’s statement as indicating no prompt disposition demand was pending. The record showed that defense counsel had in fact corrected the prosecutor on the record about the nature of Jordan’s request. Nevertheless, the appellate court held that the misrecollection did not render the dismissal an improper exercise of discretion because independent, legitimate grounds supported the “confusion” finding — specifically, Jordan’s procedurally defective pro se filing while represented by counsel and his initial misfiling in the court rather than with the district attorney.
Weighing the full Davis factors, the court found the circuit court had properly considered: the modest length of delay and the State’s non-intentional, administrative mistake as its cause; Jordan’s lack of contribution to the delay; the parties’ readiness for prompt retrial; Jordan’s anxiety (partially attributable to the open case); the absence of demonstrated harm to Jordan’s legal defense; uncertain effects on prison programming and rehabilitation; the possibility of sentence credit to address concurrent sentencing concerns; and the significant harm a with-prejudice dismissal would inflict on the victim and the public interest in prosecution of serious domestic violence charges. Taken together, these findings supported the without-prejudice result.
Key Takeaways
- When the State fails to try a prison inmate within the 120-day window under WIS. STAT. § 971.11, dismissal is mandatory, but the choice between with-prejudice and without-prejudice dismissal remains within the circuit court’s discretion guided by the Davis factors.
- A circuit court’s isolated factual misrecollection does not automatically constitute an erroneous exercise of discretion if other record evidence independently supports the court’s finding and the overall balancing analysis remains sound.
- Procedural missteps by the defendant — such as filing a pro se motion while represented by counsel and sending it to the wrong recipient — can constitute a legitimate basis for a court to find confusion that weighs toward without-prejudice dismissal.
- Victim impact and the public interest in prosecuting serious domestic violence offenses are significant Davis factors that can tip the balance against with-prejudice dismissal even when the defendant bears no fault for the delay.
Why It Matters
This decision reinforces that Wisconsin’s prompt disposition statute, while protecting incarcerated defendants from indefinite pretrial limbo, does not automatically entitle a defendant to the windfall of permanent termination of serious charges when the State misses the 120-day deadline. Courts retain discretion to allow re-prosecution, and that discretion will be upheld on appeal so long as the circuit court works through the full Davis factor analysis on the record.
For defense practitioners, the case is a cautionary tale about procedural compliance: a defendant’s own missteps in invoking prompt disposition rights — filing pro se while represented, or filing in the wrong forum — can undercut arguments for with-prejudice dismissal by supplying a factual basis for the “confusion” finding that courts use to excuse the State’s delay and justify without-prejudice treatment.