Background
After an August 2021 grocery-store incident, the State charged Terry Anderson with fourth-offense OWI, disorderly conduct, and two felony bail-jumping counts. On the morning trial was to begin, the State sought a continuance; the circuit court denied it and granted the State’s request to dismiss the charges. The court dismissed the OWI count without prejudice but orally dismissed the disorderly-conduct and bail-jumping counts with prejudice.
Later that day, the State filed a new case charging Anderson again with the same four counts and adding a fourth-offense prohibited-alcohol-concentration count. Anderson moved to dismiss the three counts previously dismissed with prejudice. The circuit court acknowledged that it had lacked authority to dismiss those counts with prejudice before jeopardy attached, but allowed them to proceed. A jury convicted Anderson on all five counts.
The Court’s Holding
The Wisconsin Court of Appeals held that the earlier dismissal-with-prejudice order was voidable, not void. Although the circuit court legally erred in entering that dismissal, it had subject-matter jurisdiction, personal jurisdiction, and adequate notice to the State. The erroneous order therefore remained binding unless reversed, modified, or set aside.
Because the State neither sought reconsideration nor appealed the dismissal in the earlier case, it could not disregard that order by refiling the dismissed counts in a separate case. The appellate court reversed Anderson’s convictions for disorderly conduct and the two felony bail-jumping counts and remanded for an amended judgment vacating them. It otherwise affirmed the judgment and postconviction order.
Key Takeaways
- An erroneous dismissal with prejudice is not automatically void.
- A voidable criminal order remains effective until properly set aside or reversed.
- A circuit court cannot correct an error in a closed case by disregarding its order in a separate prosecution.
Why It Matters
The decision distinguishes a court’s legal error from a jurisdictional defect that makes an order void. Prosecutors must timely challenge an erroneous dismissal order through reconsideration or appeal; they cannot simply refile charges that a still-binding order dismissed with prejudice.