author: CANE, C.J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. James A. Torpen, Defendant-Appellant.
    Court of Appeals

      No. 01-0182-CR.

      Submitted on briefs September 17, 2001.

      Decided October 16, 2001.

    2001 WI App 273
    (Also reported in 637 N.W.2d 481.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of William E. Schmaal, assistant state public defender.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Mary E. Burke, assistant attorney general.
    Before Cane, C.J., Hoover, PJ., and Peterson, J.

       Petition to review denied 12-17-01.

   CANE, C.J.

¶ 1. James Torpen appeals from a judgment of conviction for robbery and fleeing an officer, contrary to Wis. Stat. §§ 943.32(1) and 346.04(3), and an order denying his motion for postconviction relief. Tor-pen argues that the circuit court erred when it ordered, as a condition of probation, that he pay outstanding restitution obligations from prior, unrelated criminal cases. We conclude that the circuit court erred as a matter of law, and thus erroneously exercised its discretion, by setting forth as a condition of probation the payment of outstanding restitution obligations from unrelated cases. Therefore, we reverse and remand with directions that the circuit court enter an amended judgment of conviction consistent with this opinion.

Background

¶ 2. On November 4, 1999, Torpen robbed a gas station and was involved in a high-speed chase with police. He was charged with robbery and fleeing an officer. The State also alleged that Torpen was a habitual criminal under Wis. Stat. § 939.62 because he had been convicted of a felony, i.e., forgery, contrary to Wis. Stat. § 943.38(2), in Eau Claire County on November 1, 1999.

¶ 3. At the time of the robbery, Torpen was awaiting sentencing for the forgery. On December 20, the Eau Claire County Circuit Court withheld sentence, placed Torpen on probation for four years and ordered $8,000 restitution as a condition of probation.

¶ 4. On February 21, 2000, Torpen pled guilty in this case to robbery and fleeing an officer, both as a habitual criminal. The circuit court accepted Torpen's pleas and found him guilty. The court sentenced Torpen to six years in prison for robbery and ordered that the sentence be served concurrently with his four-year probation sentence from Eau Claire County. The court withheld sentence on the fleeing an officer charge and placed Torpen on eight years' probation, consecutive to the prison term.

¶ 5. The court, on its own initiative, also stated: "I'm going to order restitution be paid in all of your other cases and I believe the new... case law[] allows me to order that a condition of this probation is that you pay restitution in your [forgery] and your worthless check cases."

¶ 6. Consistent with this order, the judgment of conviction indicates that Torpen must pay the outstanding restitution obligations from the 1999 Eau Claire County forgery case and a 1998 Barron County misdemeanor case for issuing a worthless check. Tor-pen filed a motion for postconviction relief seeking to vacate the probation condition that Torpen pay restitution in the two unrelated cases. The circuit court denied the motion, and this appeal followed.

Legal Standards

¶ 7. The fashioning of a criminal disposition is not an exercise of broad, inherent court powers. Grobarchik v. State, 102 Wis. 2d 461, 467, 307 N.W.2d 170 (1981). Thus, if the authority to impose a particular criminal disposition exists, it must derive from the statutes. Id.

¶ 8. Wisconsin Stat. § 973.09(1)(a) grants a circuit court broad discretion in imposing conditions of probation. The circuit court may impose, according to § 973.09(1)(a), "any conditions which appear to be reasonable and appropriate." As is true with all discretionary determinations, however, if the decision is based on an erroneous view of the law it may not stand. See State v. Leist, 141 Wis. 2d 34, 39, 414 N.W.2d 45 (Ct. App. 1987). Whether the condition of probation requiring Torpen to pay outstanding restitution obligations from two unrelated criminal cases is contrary to law presents a question of law that we review de novo. See State ex rel. Kaminski v. Schwarz, 2001 WI 94, ¶ 22, 245 Wis. 2d 310, 630 N.W.2d 164.

Discussion

¶ 9. The State argues that Wis. Stat. § 973.09(1)(a) empowers the circuit court to order, as a condition of probation, the payment of outstanding restitution obligations from unrelated cases. The State further contends that such an order was reasonable and appropriate here, where Torpen acknowledged that an underlying gambling addiction linked all of his offenses.

¶ 10. Torpen does not address whether the circuit court's order was reasonable based on the facts of his case, arguing that even if the court's rationale reflects a "reasonable and appropriate" application of the general goals of probation, the order is not authorized by Wisconsin law. Torpen contends that the court lacked statutory authority to order the payment of outstanding restitution obligations from unrelated cases, for three reasons: (1) the "bootstrapping" of restitution obligations in unrelated cases is inconsistent with the general policy against using the criminal justice system as a debt collection agency; (2) the legislature did not contemplate or intend that a misdemeanant's unexcused failure to pay restitution could trigger a lengthy prison sentence; and (3) the "bootstrapping" of restitution obligations conflicts with the express statutory remedies concerning restitution prescribed in Wis. Stat. §§ 973.09(3) and 973.20(1r).

¶ 11. We conclude that Torpen's third argument is dispositive. Restitution and other conditions of probation are controlled by Wis. Stat. ch. 973. When multiple statutes are contained in the same chapter and assist in implementing the chapter's goals and policy, the statutes should be read together and harmonized if possible. See State v. Amato, 126 Wis. 2d 212, 216, 376 N.W.2d 75 (Ct. App. 1985). The interaction of Wis. Stat. §§ 973.09 and 973.20 leads us to conclude that the circuit court lacked statutory authority to order, as a condition of probation, the payment of Torpen's outstanding restitution obligations from the unrelated cases.

¶ 12. In addition to providing that a circuit court may impose reasonable and appropriate conditions of probation, Wis. Stat. § 973.09 also addresses restitution. Wisconsin Stat. § 973.09(1)(b) states that the court "shall order the person to pay restitution under s. 973.20, unless the court finds there is substantial reason not to order restitution as a condition of probation." The statute provides a procedure for extending the period of probation or converting a restitution obligation to a civil judgment if the defendant fails to pay restitution. See Wis. Stat. § 973.09(3).

¶ 13. The restitution statute, Wis. Stat. § 973.20, specifies how and when a circuit court may order restitution as a condition of probation, extended supervision or parole. It provides in relevant part:

(1g) In this section:
(a) "Crime considered at sentencing" means any crime for which the defendant was convicted and any read-in crime.
(b) "Read-in crime" means any crime that is uncharged or that is dismissed as part of a plea agreement, that the defendant agrees to be considered by the court at the time of sentencing and that the court considers at the time of sentencing the defendant for the crime for which the defendant was convicted.
(1r) When imposing sentence or ordering probation for any crime for which the defendant was convicted, the court, in addition to any other penalty authorized by law, shall order the defendant to make full or partial restitution under this section to any victim of a crime considered at sentencing ... unless the court finds substantial reason not to do so and states the reason on the record. Restitution ordered under this section is a condition of probation, extended supervision or parole served by the defendant for a crime for which the defendant was convicted. After the termination of probation, extended supervision or parole, or if the defendant is not placed on probation, extended supervision or parole, restitution ordered under this section is enforceable in the same manner as a judgment in a civil action by the victim named in the order to receive restitution or enforced under ch. 785. (Emphasis added.)

¶ 14. Pursuant to Wis. Stat. § 973.20, a circuit court may order the payment of restitution to victims of crimes for which the defendant is being sentenced, as well as to victims of any crimes that are read in for sentencing purposes. See State v. Szarkowitz, 157 Wis. 2d 740, 744, 460 N.W.2d 819 (Ct. App. 1990). Szarkowitz recognized, however, that restitution was limited to those two classes of victims. See id. at 756 (reversing award of restitution to victim who had no relationship to the crime of conviction or to the crimes read in at sentencing). Thus, it is improper to order restitution to a party with no relationship to the crime of conviction or the read-in crimes. See State v. Mattes, 175 Wis. 2d 572, 581, 499 N.W.2d 711 (Ct. App. 1993). Based on Szarkowitz and Mattes, the circuit court had no authority to order restitution to Torpen's previous victims because those crimes were not before the court at the time of sentencing.

¶ 15. The State argues, however, that the court was not ordering restitution pursuant to Wis. Stat. § 973.20, but instead was ordering the payment of outstanding restitution obligations as a general condition of probation pursuant to Wis. Stat. § 973.09(1)(a). We reject the State's attempt to distinguish the basis of restitution ordered.

¶ 16. First, the probation statute expressly requires the circuit court to order restitution using the procedure outlined in Wis. Stat. § 973.20. See Wis. Stat. § 973.09(1)(b). Second, restitution ordered pursuant to § 973.20 is a condition of probation, extended supervision or parole. See Wis. Stat. § 973.20(1r). Finally, we reject the proposition that § 973.09(1)(a) allows a court to order what is not permitted by § 973.20.

¶ 17. In Amato, this court rejected a similar argument, concluding that the circuit court could not order as a condition of probation the payment of special prosecutor's fees not allowed under the costs statute, Wis. Stat. § 973.06 (1983-84). See Amato, 126 Wis. 2d at 214. We explained:

The state's argument. . . does not harmonize the two statutes. Rather, it renders sec. 973.06, Stats., meaningless for it would expressly permit by way of a condition of probation that which is expressly prohibited as an item of costs. Such interpretations are to be avoided.... Furthermore, statutory interpretations which effectively repeal other statutes by implication are not favored by the law. ... It is the duty of the courts, if possible, to construe two statutes such that both will be operative.
In addition, we conclude that the costs statute, sec. 973.06, Stats., is the more specific in terms of the costs of prosecution than the probation statute, sec. 973.09, Stats. The special prosecutor's fees were among the expenses of litigation in this case. However, many expenses of litigation are not allowable as taxable costs even though they are costs of litigation. The right to recover costs is not synonymous with the right to recover the expense of litigation. Such right is statutory in nature, and to the extent that the statute does not authorize the recovery of specific costs, they are not recoverable.
If the probation statutes alone governed this question, we perhaps would agree that the condition of probation imposed here was reasonable and appropriate. However, we conclude that it is for the legislature to expressly permit the imposition of such a condition of probation in light of the express prohibition recited in the cost statute.

Id. at 216-18 (citations omitted).

¶ 18. Similarly, we conclude that Wis. Stat. § 973.09(1)(a) cannot authorize the circuit court to order the payment of outstanding restitution obligations from unrelated cases, even if the court characterizes the requirement as a general condition of probation, rather than as restitution ordered as a condition of probation pursuant to Wis. Stat. § 973.20. Although we are sensitive to the needs of victims to recover restitution, we cannot permit what the statutes do not allow.

¶ 19. We conclude that the circuit court erred as a matter of law, and thus erroneously exercised its discretion, by setting forth as a condition of probation the payment of outstanding restitution obligations from unrelated cases. Accordingly, we reverse those portions of the judgment and postconviction order directing Torpen to pay restitution in his forgery and worthless check cases as a condition of probation in this case. We remand so that the circuit court can enter an amended judgment of conviction consistent with this opinion.

By the Court. — Judgment affirmed in part; reversed in part and cause remanded with directions.

       All statutory references are to 1999-2000 version unless otherwise noted.

       Because we conclude that the court lacked statutory authority to impose the disputed condition of probation, we do not address Torpen's argument that the condition was also invalid on double jeopardy grounds.

       Pursuant to a plea agreement, an additional charge of bail jumping was dismissed.

       It is undisputed that the new case law to which the court was referring was State v. Oakley, 226 Wis. 2d 437, 594 N.W.2d 827 (Ct. App. 1999), which held that a circuit court could order a defendant, as a condition of probation, to pay an outstanding fine from an unrelated conviction for disorderly conduct. See id. at 439. Six days after Torpen was sentenced, however, the Wisconsin Supreme Court overruled Oakley. The court held that a circuit court could not order the payment of an old, unpaid fine as a condition of probation where the defendant would be exposed to more than the six months in jail that the defendant would otherwise face for failing to pay the fine, under Wis. Stat. § 973.07. See State v. Oakley, 2000 WI 37, ¶ 3, 234 Wis. 2d 528, 609 N.W.2d 786.

       Torpen did not object to this condition of probation at the sentencing hearing. On appeal, the State argues that Torpen therefore waived his objection. Even if Torpen arguably waived his objection, we will address the issue on its merits. See Wirth v. Ehly, 93 Wis. 2d 433, 443-44, 287 N.W.2d 140 (1980) (waiver is a rule of judicial administration, not jurisdiction, and we have the discretion to make exceptions).

       Torpen also sought presentence credit, which was ultimately granted and is not at issue on this appeal.

       This argument refers to the fact that if Torpen fails to satisfy the condition of probation that he pay the outstanding restitution obligation from his 1998 misdemeanor case, he faces a maximum sentence of eight years in prison for the charge of fleeing an officer as a habitual criminal.


source: Caselaw Access Project

author: DYKMAN, J.

license: Public Domain

text:
    Bruce G. Felland and Nordic Financial Corporation, Plaintiffs-Respondents-Cross-Appellants, v. William R. Sauey, Defendant, Columbia Parcar Corp., Flambeau Corporation, Nordic Group of Companies, Ltd., Pacjets Financial, Ltd., and Seats Incorporated, Defendants-Appellants-Cross-Respondents.
    Court of Appeals

      No. 00-2102.

      Submitted on briefs May 4, 2001.

    Decided October 18, 2001.

    2001 WI App 257
    (Also reported in 637 N.W.2d 403.)

      On behalf of the defendant-appellants-cross-respondents, the cause was submitted on the briefs of Roy L. Prange, Jr., Anthony A. Tomaselli, Kristin Graham Noel of Quarles & Brady LLP, Madison.

      On behalf of the plaintiffs-respondents-cross-appellants, the cause was submitted on the briefs of Stephen A. DiTullio and Mark R. Sewell of DeWitt Ross & Stevens, S.C., Madison.
    Before Dykman, Deininger and Lundsten, JJ.
   DYKMAN, J.

¶ 1. Five companies owned by William Sauey (collectively "Nordic Group") appeal from the portion of a judgment awarding Bruce Felland and Nordic Financial Corporation (collectively "Fell- and") $62,500 plus prejudgment interest for breach of contract. Felland cross-appeals from the portion of the judgment dismissing William Sauey from the case because Felland had failed to prove at trial that Sauey was acting on behalf of himself in addition to his companies. Nordic Group argues that its agreement with Felland is unenforceable because Felland failed to put the agreement in writing as required by Wis. Stat. § 440.77 (1989-90) and Wis. Admin. Code § RL 44.03 (December 1991). Nordic Group further argues that Felland failed to comply with the terms of the agreement, even if it is enforceable. On cross-appeal, Felland asserts that Sauey waived an agency defense because he failed to raise the issue in his answer or at trial.

¶ 2. We conclude that a failure to comply with Wis. Stat. § 440.77 and Wis. Admin. Code § RL 43.04 does not invalidate an otherwise valid agreement made by a loan solicitor and that Felland complied with the terms of his agreement with Sauey and Nordic Group such that he is entitled to his commission. Further, Sauey waived a defense of agency when he failed to raise it until after the trial. We therefore affirm in part and reverse in part.

I. Background

¶ 3. In March 1992 William Sauey contacted Bruce Felland, a loan solicitor, to assist in obtaining funding for three companies in which Sauey had an ownership interest: Pacjets Financial Ltd., Columbia Parear Corp., and Snow Valley, Inc. In addition, Sauey wanted Felland to find financing for a building in Deerfield, Wisconsin. Sauey verbally agreed to pay a .5% brokerage fee for a loan commitment originated by Felland and accepted by Sauey for Columbia ParCar, Pacjets, Snow Valley, and the Deerfield real estate. In a letter to Sauey dated March 18, 1992, Felland confirmed their agreement:

This is to confirm our recent conversation regarding my fees relative to the above referenced subject ["Financing Services"]. I have agreed to charge you, or your related corporate entities, a fee equal to fifty basis points (1/2%) of any loan commitment which is originated by me and accepted by you.
This fee is earned at the time of acceptance, but I generally wait for payment until the time for funding. In most cases I have a contract signed by the borrower, but that won't be necessary with you.
I have already made a request to John Weber for certain financial information on PACJETS Financial, Ltd., and have enclosed a copy of same for your information. Also, I intend to call Benno Nager and request that he send the updated information on Snow Valley directly to me.
I am looking forward to the prospect of successfully placing some funding requests on your behalf, and want to thank you for the opportunity.

¶ 4. Due to the three companies' financial troubles, Felland had difficulty finding financing. In early April 1992, Felland had identified no lending institutions interested in providing loans. After a conversation with Sauey, Felland expanded his efforts. Specifically, Felland began seeking financing for a "consolidated group of companies," which would be comprised of both companies from the original group and a number of financially stronger companies that Sauey also owned, in the hope that this would generate interest from banks.

¶ 5. At the end of April, Felland wrote to Sauey again to inform him of the progress he was making in finding a lender for Sauey's "consolidated group of companies." Felland wrote that there were two institutions potentially interested in establishing a lead bank relationship, Bank One and Yatsuda Trust & Banking Co., Ltd. Sauey responded by thanking Felland for his efforts, and stating that he was looking forward to hearing more about Yatsuda Trust. However, Sauey wrote that he would not be contacting Bank One because he was already working with them.

¶ 6. In May Felland wrote that he had spoken with David Grams, who was the loan officer for LaSalle National Bank. He also wrote that Grams was "very interested in finding out more about your companies and their banking needs." Felland gave Sauey Grams' telephone number, explaining "that it would be prudent to have you contact him directly rather than attempting to set up a meeting through me."

¶ 7. After almost a year of negotiations, Nordic Group entered into a $12.5 million credit agreement with LaSalle National Bank on April 15, 1993. Flam-beau Corp., Flambeau Plastics Corp., Seats Inc., Arte-con Inc., and Pacjets Financial Ltd., were each party to the agreement. In addition, there was a provision in the agreement that allowed intercompany loans to be made to Columbia Parear.

¶ 8. Upon learning of the agreement from Grams, Felland wrote to Sauey, requesting that he be paid his fee for originating the loan commitment. When Sauey refused, Felland sued Sauey and each of the companies named in the credit agreement, claiming breach of contract.

¶ 9. At trial Felland testified that he told Sauey in early April that finding financing for Pacjets, Columbia Parear, and Snow Valley was unlikely and that Sauey would need to either consolidate his companies or "do a funding to one of his other stronger entities which in turn could then loan the money back to the weak ones." According to Felland, Sauey told him that he was already in the midst of creating a consolidation plan, and agreed to allow Felland to seek funding for a consolidated group. Sauey denied having told Felland that he could seek financing for anything but the original four entities. In an oral decision, the circuit court ruled in favor of Felland, finding that Sauey had authorized Felland to seek financing for a consolidated group and concluding that Felland had complied with the terms of their agreement such that he was entitled to his commission.

¶ 10. After the circuit court ruled in favor of Felland but before entry of judgment, Sauey filed a motion with the court requesting that he be dismissed from the suit because "the evidence produced at trial clearly established that Mr. Sauey was not acting in his individual capacity but rather on behalf of his companies." The court responded in a letter dated June 21, 2000, stating: "I have reviewed the file and would agree that there was no testimony specifically during the trial that Mr. Sauey acted other than on behalf of his companies." On the same day, the court entered judgment in favor of Felland against all defendants save for Sauey, who was dismissed from the action.

¶ 11. Nordic Group appeals from the part of the judgment ordering that Felland recover $62,500 plus prejudgment interest from the five companies. Felland cross-appeals the part of the judgment dismissing Sauey from the case.

II. Analysis

A. Requirements of Wis. Stat. § 440.77

¶ 12. Nordic Group does not contest that it had an agreement with Felland. Rather, it argues that Felland failed to put the agreement they had in writing and that it is therefore unenforceable. For support, Nordic Group relies on Wis. Stat. § 440.77(1)(i) and (k) and Wis. Admin. Code § RL 43.04(5). Wisconsin Stat. § 440.77 provides in part:

440.77 Discipline of mortgage brokers, loan originators and loan solicitors. (1) Prohibited Conduct. The department may revoke, suspend or limit the certificate of registration of a mortgage banker, loan originator or loan solicitor, or reprimand a mortgage banker, loan originator or loan solicitor, if it finds that the mortgage banker, loan originator or loan solicitor did any of the following:
(i) Demonstrated a lack of competency to act as a mortgage banker, loan originator or loan solicitor in a way which safeguards the interests of the public.
(k) Violated any provision of this subchapter, ch. 138 or any federal or state statute rule or regulation which relates to practice as a mortgage banker, loan originator or loan solicitor.

Wisconsin Admin. Code § RL 43.04 provides in part:

RL 43.04 Incompetency to act as a mortgage banker, loan originator or loan solicitor. The following conduct, without limitation because of enumeration, demonstrates a lack of competency to act as a mortgage banker, loan originator, or loan solicitor in a way which safeguards the interest of the public prohibited by s. 440.77(1)(i), Stats.:
(5) Failing to ensure that all agreements, disclosures, representations and promises to perform services under ch. 440, subch. VI, Stats., are in writing.

Because failure to put an agreement in writing demonstrates a lack of competency under Wis. Admin. Code § RL 43.04(5), and acting in a way that demonstrates a lack of competency is prohibited by Wis. Stat. § 440.77(1)(i), Nordic Group contends that the agreement between it and Felland is unenforceable.

¶ 13. The circuit court rejected this argument, concluding that the March 18 letter from Felland to Sauey constituted a written "promise to perform," which was sufficient to meet the requirements of the statute. We need not decide, however, whether the March 18 letter satisfied the requirements of Wis. Stat. § 440.77 and Wis. Admin. Code § 43.04 because we conclude that, even if Felland failed to comply with those requirements, his failure does not merit voiding the contract. See Vanstone v. Town of Delafield, 191 Wis. 2d 586, 595, 530 N.W.2d 16 (Ct. App. 1995) (holding that the court of appeals may affirm a decision on grounds not relied upon by the circuit court).

¶ 14. As Nordic Group points out, the general rule in Wisconsin is that contracts made in violation of a statute will not be enforced. See Perma-Stone Corp. v. Merkel, 255 Wis. 565, 570-71, 39 N.W.2d 730 (1949). However, not all contracts made in violation of a statute are void. Vic Hansen & Sons, Inc. v. Crowley, 57 Wis. 2d 106, 116, 203 N.W.2d 728 (1973). We look to the intent of the legislature in enacting the statute to ascertain whether a violation makes the agreement unenforceable. Id. at 117. See also Posnanski v. Hood, 46 Wis. 2d 172, 181, 174 N.W.2d 528 (1970) ("[T]he courts will always look to the language of the statute, the subject matter of it, the wrong or evil which it seeks to remedy or prevent, and the purpose sought to be accomplished in its enactment.") (Internal quotations omitted.)

¶ 15. Further, as the supreme court noted in Brooks v. Steffes, 95 Wis. 2d 490, 290 N.W.2d 697 (1980), "There are many varieties and degrees of 'illegality' and these varieties and degrees must be taken into account in determining the juristic effect of a transaction that involves some form of illegality." Id. at 513 n.18 (quoting 6A Corbin, Contracts, § 1534, at 816 (1962)). The Steffes court also noted that an agreement should be declared unenforceable on the grounds of illegality:

"only after a careful balancing, in the light of all the circumstances, of the interest in the enforcement of the particular promise against the policy against the enforcement of such terms. . . . Only if the factors that argue against enforcement clearly outweigh the law's traditional interest in protecting the expectations of the parties, its abhorrence of any unjust enactment, and any public interest in the enforcement of the particular term will enforcement be denied."

Id. at 514 n.18 (quoting Restatement (Second) of Contracts, § 320 Comment b, Tentative Draft No. 12 (March 1, 1977)).

¶ 16. Wisconsin Stat. § 440.77 does not invalidate non-written agreements made by a loan solicitor. Rather, the statute is a disciplinary provision, authorizing the division of banking to revoke or suspend the license of a broker or solicitor for various acts of misconduct, including demonstrating a lack of competency. Nowhere does the statute suggest that those contracting with loan solicitors may obtain the benefit of their bargain and then refuse to pay for the services rendered because the agreement was not put in writing. Had the legislature wished to enact a statute of frauds for agreements made by loan brokers, it could have done so. Cf. Chapman v. Zakzaska, 273 Wis. 64, 68, 76 N.W.2d 537 (1956) ("It would seem that if the legislature had intended to extend or enlarge [the] consequences [of violating Wis. Stat. § 218.01(7a)(a)] by enlarging the remedies long and exclusively afforded to the buyer in a case of breach of warranty or of a fraudulent misrepresentation it would have so declared.")

¶ 17. We are therefore unpersuaded that the purpose of Wis. Stat. § 440.77 was to allow those contracting with loan brokers to avoid fulfilling their contractual obligations by providing them with "a technical escape from a fair and definite agreement." US Oil Co., Inc. v. Midwest Auto Care Servs., Inc., 150 Wis. 2d 80, 90, 440 N.W.2d 825 (Ct. App. 1989). Further, Nordic Group has not shown that "the factors that argue against enforcement clearly outweigh the law's traditional interest in protecting the expectations of the parties." The legislature intended to authorize the division of banking to discipline loan solicitors who fail to meet professional standards, not to void otherwise valid agreements. The division of banking could have decided to discipline Felland if it believed that he was not acting in accordance with Wis. Stat. § 440.77. Regardless, we decline to enact a statute of frauds for agreements with loan solicitors by judicial fiat.

B. Terms of the Agreement

¶ 18. In addition to challenging the agreement under Wis. Stat. § 440.77 and Wis. Admin. Code § RL 43.04, Nordic Group also contends that the circuit court's decision should be reversed because Felland did not comply with the terms of the agreement. First, Nordic Group argues that Felland never "originated a loan commitment" as he promised in his March 18 letter. Instead, it contends, Felland, at most, "originated a relationship" with LaSalle National Bank. We review a circuit court's determination regarding the meaning of a word in a document de novo. See Levy v. Levy, 130 Wis. 2d 523, 528-29, 388 N.W.2d 170 (1986).

¶ 19. We conclude that Felland fulfilled his promise to originate a loan commitment. It was through Felland's efforts that Nordic Group was able to enter into a credit agreement with LaSalle. Nordic Group does not dispute that it was Felland who identified LaSalle as a possible source of financing, that Felland contacted LaSalle's loan officer, David Grams, on behalf of Sauey and Nordic Group, and that Felland used this conversation to generate interest in Sauey's companies. Moreover, it was in response to Felland's call that Grams first contacted Sauey to discuss a possible financing arrangement. Sauey admitted that he had no banking relationship with LaSalle prior to Grams calling him in May 1992. Ultimately, Nordic Group entered into a $12.5 million credit agreement with LaSalle.

¶ 20. It is true that, after making the initial contact, Felland did not play a sizeable role in the negotiation process. However, Felland testified, and the circuit court believed, that he chose not to assert himself because in his view he was no longer needed. This view is supported by Sauey's own actions; Sauey never indicated during his testimony that he desired or asked for Felland's continued presence or that during the negotiations he expected Felland to do more than he did. Therefore, Nordic Group cannot successfully argue now, after it has profited from Felland's work, that Felland failed to do what it asked him to do.

¶ 21. Next, Nordic Group argues that there was no written agreement that Felland "was to receive a commission for providing funding for any and all of Sauey's stronger, more attractive companies." Presumably, Nordic Group is suggesting that Felland would therefore not be entitled to a commission for any loan commitment that he originated if it included these stronger companies as part of the financing package.

¶ 22. First, we have already concluded that a failure to comply with the writing requirement of Wis. Admin. Code § RL 43.04(5) does not render an agreement unenforceable, and Nordic Group has not referred us to any legal authority that would otherwise require their agreement to be in writing. Although there was conflicting testimony regarding whether Sauey directed Felland to seek funding for companies other than the initial four, the circuit court believed Felland, who testifed that Sauey had authorized an expanded search. We cannot conclude that the circuit court's finding that an oral agreement existed is clearly erroneous. See Benkoski v. Flood, 2001 WI App 84, ¶ 9, 242 Wis. 2d 652, 626 N.W.2d 851 (applying clearly erroneous standard of review to circuit court's finding that parties had reached an agreement).

¶ 23. The letters sent by Felland to Sauey strongly suggest that their agreement covered more than just the original companies. In Felland's April 29 letter, he discusses his efforts for Sauey as they relate to "your consolidated group of companies." In his May 11 letter, he refers to "the subject of consolidating your various companies," and advises Sauey to exclude Columbia Parear from "the restructured consolidated entity" due to its financial difficulties.

¶ 24. Nordic Group does not claim that Sauey ever told Felland he was mistaken in his belief that he was authorized to find financing for a consolidated group of companies. As the circuit court noted, Sauey made it clear in other circumstances when he disagreed with Felland's course of action, such as when Sauey informed Felland that he would not be contacting Bank One because he was already working with them. Therefore, it is unlikely that Sauey would have simply allowed Felland to continue working under the false assumption that he was seeking funds for an entirely wrong group of companies since this would have been wholly counterproductive from both parties' point of view.

¶ 25. In both its main and reply briefs, Nordic Group attempts to explain Sauey's silence by suggesting that he believed the consolidated group referred only to "a consolidated group of the Original Companies and property." This is not, however, what Sauey testified to at trial. Rather, when asked, "[A]re you aware in follow-up correspondence Mr. Felland specifically directed your attention to work he was doing for your consolidated group of companies?" Sauey answered, "Well, he could say anything. I didn't — that has nothing to do with what I agreed to." Because Sauey's explanation is directly at odds with his trial testimony, it is unpersuasive.

¶ 26. Finally, Nordic Group contends that Felland failed to comply with the terms of the agreement because Columbia Parear, Snow Valley, and the. Deer-field building were not parties to the credit agreement. Because these three entities were all part of the original agreement, Nordic Group contends that Felland was required to originate a loan commitment that included each of them before he was entitled to a commission. As Nordic Group concedes, however, one of the original companies, Pacjets, was a party to the agreement, and at least Columbia Parear can be advanced as much as $2,000,000 without prior consent of the bank. Further, there is no evidence that the consolidated group of companies necessarily included all of the companies that were included in the initial agreement.

¶ 27. Perhaps most important is the fact that Sauey chose to accept a credit agreement that did not include Snow Valley and the Deerfield building. Had Sauey considered it essential to have those two entities included in a loan commitment, he could have rejected LaSalle's offer and waited to find another bank that would include them. Evidently, however, he decided this was the best offer that he could obtain. Were we to accept Nordic Group's argument, we would be allowing parties to refuse to pay loan solicitors their commission any time the party chose to accept an offer that was less than ideal. Felland originated a loan commitment with LaSalle that was accepted by Sauey, and that was all he was required to do under the agreement. Therefore, Felland is entitled to his commission.

C. Dismissal of Sauey

¶ 28. After the trial, Sauey filed a motion with the circuit court requesting that he be dismissed from the case because the evidence at trial demonstrated that he had been acting solely as an agent for his companies and not for himself. The court agreed and dismissed Sauey from the case. Felland argues that Sauey waived an agency defense because he did not aver in his answer that he was acting solely as an agent or specifically argue this issue at trial. Whether Sauey waived his right to assert agency as a defense is a question of law that we review de novo. See Lentz v. Young, 195 Wis. 2d 457, 467, 536 N.W.2d 451 (Ct. App. 1995).

¶ 29. Felland was not required to prove that Sauey was acting in a personal capacity. When agency is an issue in a case, the general rule is that the burden of proof lies with the party asserting the existence of the agency relationship. See Boehck Constr. Equip. Corp. v. Voigt, 17 Wis. 2d 62, 71, 115 N.W.2d 627 (1962). Further, as a general rule of pleading, plaintiffs are not required to anticipate defenses which defendants may raise and thus are not required to negate potential defenses in their complaint. Robinson v. Mount Sinai Med. Ctr., 137 Wis. 2d 1, 16, 402 N.W.2d 711 (1987). Felland named Sauey individually in his complaint. If Sauey wished to claim that he was not a proper party defendant because he was acting an as an agent, he was obligated to raise this issue in his answer or in a separate motion or it was waived. See Oetzman v. Ahrens, 145 Wis. 2d 560, 571, 427 N.W.2d 421 (Ct. App. 1988); Lentz, 195 Wis. 2d at 467. Sauey did not raise the issue, however, until after the trial concluded, when it was too late to take testimony on the issue. We therefore conclude that Sauey waived his right to argue that he was acting only as an agent. The circuit court erred in dismissing Sauey from the case. Upon remand, the circuit court will issue an amended judgment that includes Sauey as a judgment debtor.

By the Court. — Judgment affirmed in part; reversed in part and cause remanded with directions.

       All references to the Wisconsin Statutes are to the 1989-90 version unless otherwise noted.

       Wisconsin Stat. § 440.77 was renumbered as Wis. Stat. § 224.77 in 1995. See 1995 Wis. Act 27 §§ 6598-6600. Wis. Admin. Code § RL 43.04 was renumbered as Wis. Admin. Code § DFI-Bkg 43.04 in June 1999.

       Even a statute of frauds applying to agreements made by loan solicitors would not necessarily bar a party in Felland's position from obtaining relief. Plaintiffs who have failed to comply with the statute of frauds requirements may still make a claim for unjust enrichment when the plaintiff has conferred a benefit upon the defendant, the defendant appreciates or knows of the benefit, and retention of the benefit without payment would be inequitable. Halverson v. River Falls Youth Hockey Assoc., 226 Wis. 2d 105, 115, 593 N.W.2d 895 (Ct. App. 1999). This is further evidence that the legislature did not intend to render unenforceable non-written agreements made by loan solicitors.

       We also note that invalidating Sauey's and Felland's agreement because it was not in writing would be particularly inequitable since Felland chose not to require Sauey to sign a contract as a token of his trust in Sauey.


author: SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

text:
    State of Wisconsin, Plaintiff-Appellant-Petitioner, v. Christopher Lee Davis, Defendant-Respondent.
    Supreme Court

      No. 00-0889-CR.

      Oral argument November 6, 2001.

    Decided December 27, 2001.

    2001 WI 136
    (Also reported in 637 N.W.2d 62.)

      For the plaintiff-appellant-petitioner the cause was argued by Michael R. Klos, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
    For the defendant-respondent there was a brief and oral argument by Jane Krueger Smith, Oconto Falls.
   SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

¶ 1. This is a review of a published decision of the court of appeals, State v. Davis, 2001 WI App 63, 242 Wis. 2d 344, 626 N.W.2d 5, affirming an order of the Circuit Court for Dodge County, Daniel W Klossner, Circuit Court Judge. The circuit court granted defendant Christopher Lee Davis's motion to dismiss the criminal case against him with prejudice because the State failed to bring the case on for trial within the 120-day time period set forth in Wis. Stat. § 971.11(2) (1999-2000).

¶ 2. The court of appeals affirmed the circuit court's order, holding that the legislature intended that a circuit court have the discretion to dismiss a criminal case with or without prejudice when the State fails to bring the criminal case on for trial within the 120-day time period set forth in Wis. Stat. § 971.11(2).

¶ 3. Two questions of law are presented in this case. First, does Wis. Stat. § 971.11(7) grant a circuit court the discretion to dismiss a criminal case with or without prejudice when the State fails to bring the criminal case on for trial within the 120-day time period set forth in § 971.11(2)? Second, if § 971.11(7) does grant a circuit court the discretion to dismiss a criminal case with or without prejudice when the State fails to bring the criminal case on for trial within the 120-day time period set forth in § 971.11(2), did the circuit court in the present case properly exercise its discretion in dismissing the criminal case against the defendant with prejudice?

¶ 4. This court decides both these questions of law independent of the circuit court and court of appeals, hut benefiting from their analyses.

¶ 5. We agree with the court of appeals that when a criminal case is not brought on for trial within the 120-day time period set forth in Wis. Stat. § 971.11(2), a circuit court has the discretion under § 971.11(7) to dismiss the criminal case with or without prejudice. We further conclude that the circuit court failed to properly exercise its discretion in the present case, and we remand the cause to the circuit court to exercise its discretion in determining whether the dismissal should be with or without prejudice.

I

¶ 6. The facts in the present case are undisputed. On March 16, 1999, a criminal complaint was filed in Dodge County Circuit Court alleging that Christopher Lee Davis, the defendant and an inmate at the Fox Lake Correctional Institution, was involved in a conspiracy to deliver marijuana at the correctional institution. Pursuant to Wis. Stat. § 971.11, commonly referred to as the Intrastate Detainer Act, the defendant himself, not represented by counsel, requested a "prompt disposition" of his case. The defendant's request triggered the 120-day time period during which the State was to bring the criminal case against the defendant on for trial.

¶ 7. The district attorney's office received the defendant's request on March 23,1999. Defense counsel was appointed for the defendant on April 22, 1999, and the defendant was represented throughout the proceedings. A preliminary hearing was scheduled for May 5, 1999, but the defendant waived his right to the hearing on a form executed that day. The defendant was arraigned on May 26,1999, at which time the circuit court scheduled the case for a status conference to be held on July 19, 1999. Following the status conference the circuit court entered orders on July 22, 1999, after the statutory 120-day period to bring the case on for trial had expired, scheduling a motion hearing on August 3, 1999, and a trial on November 16, 1999.

¶ 8. The State and the defense counsel filed a joint request for a continuance on July 28, 1999, so the motion hearing was rescheduled for October 18, 1999. The parties then filed a "Stipulation & Recommendation" on September 9, 1999, in which the defendant agreed to plead guilty to one count of conspiracy to deliver marijuana. In exchange for a sentence recommendation of two years, the defendant agreed to testify truthfully in any proceeding involving the delivery of drugs at Fox Lake Correctional Institution. The defendant executed a plea questionnaire and waiver of rights form on October 7, 1999, and the circuit court scheduled a plea and sentencing hearing for January 7, 2000.

¶ 9. However, in a letter to the circuit court dated January 3, 2000, defense counsel notified the circuit court that it had come to counsel's attention that the defendant had requested a prompt disposition of the criminal case against him pursuant to Wis. Stat. § 971.11 and that the district attorney's office had received this request on March 23, 1999. Defense counsel's letter explained that the request for prompt disposition was not on file with the clerk of courts and that defense counsel had not received a copy from the district attorney. Defense counsel's letter then asked the circuit court to dismiss the criminal case with prejudice on the ground that the State failed to bring the case on for trial within the 120-day time period set forth in § 971.11(2). One hundred twenty days from March 23, 1999, the date on which the district attorney's office had received the defendant's request for prompt disposition of the case, had elapsed on July 21, 1999.

¶ 10. On February 14, 2000, the circuit court held a hearing on the defendant's motion to dismiss the case. The circuit court dismissed the case with prejudice, reasoning in part that a dismissal without prejudice would not provide any meaningful remedy to the defendant. The court of appeals affirmed the circuit court's dismissal order, concluding that the circuit court had the discretion to dismiss the criminal case with or without prejudice under Wis. Stat. § 971.11(7). The court of appeals also ruled that the circuit court properly exercised its discretion in the present case.

I — i h — I

¶ 11. We first consider what kind of dismissal of a criminal case is authorized under Wis. Stat. § 971.11: dismissal with prejudice or dismissal without prejudice? Section 971.11(2) provides that a district attorney shall bring a criminal case on for trial within 120 days after receipt of an accused's request for a prompt disposition of the criminal case "subject to s. 971.10." Section 971.11(7) provides that if a criminal case is not brought on for trial within the 120-day time period set forth in § 971.11(2), "the case shall be dismissed." Section 971.11(1), (2), and (7) states in relevant part as follows:

(1) Whenever the warden or superintendent receives notice of an untried criminal case pending in this state against an inmate of a state prison, the warden or superintendent shall, at the request of the inmate, send by certified mail a written request to the district attorney for prompt disposition of the case. The request shall state the sentence then being served, the date of parole eligibility, if applicable, or the date of release to extended supervision, the approximate discharge or conditional release date, and prior decision relating to parole. If there has been no preliminary examination on the pending case, the request shall state whether the inmate waives such examination, and, if so, shall be accompanied by a written waiver signed by the inmate.
(2) If the crime charged is a felony, the district attorney shall either move to dismiss the pending case or arrange a date for preliminary examination as soon as convenient and notify the warden or superintendent of the prison thereof, unless such examination has already been held or has been waived. After the preliminary examination or upon waiver thereof, the district attorney shall file an information, unless it has already been filed, and mail a copy thereof to the warden or superintendent for service on the inmate. The district attorney shall bring the case on for trial within 120 days after receipt of the request subject to s. 971.10.
(7) If the district attorney moves to dismiss any pending case or if it is not brought on for trial within the time specified in sub. (2) or (3) the case shall be dismissed unless the defendant has escaped or otherwise prevented the trial, in which case the request for disposition of the case shall be deemed withdrawn and of no further legal effect. Nothing in this section prevents a trial after the period specified in sub. (2) or (3) if a trial commenced within such period terminates in a mistrial or a new trial is granted. (Emphasis added.)

¶ 12. The text of Wis. Stat. § 971.11(7) is inconclusive about the legislature's intent regarding dismissal of a criminal case with or without prejudice. The language in § 971.11(7) that "the case shall be dismissed" is silent on the issue of dismissal with or without prejudice when the State fails to bring the criminal case on for trial within the 120-day time period set forth in § 971.11(2). Although the legislature was aware of this issue, it failed to provide direction. As the court of appeals explains, the legislature had the opportunity to make its intent perfectly clear but apparently declined to do so. In the absence of explicit direction in the text of the statute or legislative history, we must nevertheless determine whether the legislature intended a circuit court to dismiss the criminal case under § 971.11(7) with or without prejudice.

¶ 13. The aim of statutory interpretation is to discern the intent of the legislature. The court must ascertain the legislature's intent from the language of the statute in relation to its context, scope, history, and objective intended to be accomplished. A cardinal rule in interpreting statutes is to favor an interpretation that will fulfill the purpose of the statute over an interpretation that defeats the manifest objective of the act.

¶ 14. We agree with the court of appeals that "the legislature has left the matter up to the courts to exercise its [sic] discretion to dismiss with prejudice in a proper case lest the statute have no meaning at all." This interpretation of Wis. Stat. § 971.11(7) granting a circuit court the discretion to dismiss a criminal case with or without prejudice best serves the legislative purposes: First, this interpretation comports with the legislature's goal to prevent "the potential injustices resulting from the practice of filing detainers." Second, it comports with the legislature's objective to give an inmate "a greater degree of knowledge about his [or her] future [so that he or she] could begin more constructive planning and co-operate on a treatment program with the knowledge his [or her] efforts would not be minimized by the threat of unsatisfied charges." Third, it comports with the "legislative intent to provide the operation of a speedier disposition for inmates than for others charged with crimes." Fourth, it comports with the legislative purpose to prevent the State from repeatedly dismissing and refiling a criminal case after a dismissal without prejudice, rendering the 120-day time period set forth in § 971.11(2) a nullity. "The proper control of continued refiling of charges by the State is the authority of the courts to dismiss with prejudice." We further agree with the court of appeals that to interpret § 971.11(7) as requiring dismissal of a criminal case only without prejudice would deprive an inmate of prompt disposition of the case, which is the very purpose of § 971.11.

¶ 15. The court of appeals' interpretation of Wis. Stat. § 971.11(7) is also consistent with the statutory-direction in § 971.11(2) that a criminal case against an accused shall be brought on for trial within the 120-day time period "subject to Wis. Stat. § 971.10," the "speedy trial" statute. Under section 971.10(3), a circuit court may in its discretion grant a continuance under the "speedy trial" provisions of § 971.10. However, the circuit court must set forth in the record its reasons for finding that the ends of justice served by granting a continuance outweigh the best interests of the public and the accused in a speedy trial.

¶ 16. Because Wis. Stat. § 971.11(2) states that it is subject to § 971.10, we must read §§ 971.10 and 971.11 together. Under Wis. Stat. § 971.10(4), if the State fails to meet the statutory speedy trial time periods and has not been granted a continuance, the accused is discharged from custody to the detriment of the State and to the benefit of the accused. On the other hand, an accused cannot be discharged from custody as a consequence of the State's failure to bring a criminal case on for trial in the context of § 971.11, because the accused subject to § 971.11 is incarcerated for committing another crime. However, the concept that failing to meet a statutory time period imposes a disadvantage on the State and grants a benefit to an accused applies equally to both §§ 971.11 and 971.10.

¶ 17. The detriment/benefit objective can be achieved in Wis. Stat. § 971.11(7) by allowing a circuit court to dismiss a criminal case with prejudice when no good cause is shown for the State's failure to comply with the 120-day time period and to dismiss a criminal case without prejudice when good cause is shown for doing so.

¶ 18. A dismissal of a criminal case with prejudice under Wis. Stat. § 971.11(7) penalizes the State, but gives an accused the benefit of the prompt disposition statute and is thus in the public interest.

¶ 19. However, a dismissal of a criminal case without prejudice under Wis. Stat. § 971.11(7) also penalizes the State by forcing the State to begin the case again and repeat various proceedings, such as the preliminary hearing. On the other hand, an accused may or may not benefit from a dismissal of a criminal case without prejudice. Nonetheless, the objectives set forth in § 971.11 are furthered, and thus the public interest is protected.

¶ 20. The court of appeals' interpretation of Wis. Stat. § 971.11(7) giving a circuit court the discretion to dismiss a criminal case with or without prejudice comports with the principles set forth in §§ 971.10 and 971.11.

¶ 21. The State makes three arguments in its attempt to persuade this court that the court of appeals has erred in its interpretation of Wis. Stat. § 971.11:

¶ 22. First, the State relies on State v. Braunsdorf, 98 Wis. 2d 569, 297 N.W.2d 808 (1980), in arguing that Wis. Stat. § 971.11(7) requires dismissal of a criminal case without prejudice. We agree with the court of appeals that the State's reliance on Braunsdorf is misplaced. In Braunsdorf there was no statute that authorized or required the dismissal of a criminal case. The Braunsdorf court held that in the absence of a statute, the "power to dismiss a criminal case with prejudice prior to jeopardy on nonconstitutional grounds is not... an inherent power of the trial courts of this state." Because Braunsdorf addressed only a circuit court's inherent power to dismiss criminal cases, we conclude that it cannot be interpreted, as the State urges, to mean that a circuit court's authority to dismiss a criminal case is limited to a dismissal of the case without prejudice unless a statute explicitly authorizes a dismissal with prejudice.

¶ 23. Second, the State argues that Wis. Stat. § 971.11, the Intrastate Detainer Act, should be read along with § 976.05(3)(d), (4)(e), and (5)(c), the Interstate Detainer Act, which explicitly provides for dismissal of a criminal case "with prejudice." The State argues that the phrase "shall be dismissed" in the intrastate detainer statute means dismissal without prejudice rather than dismissal with prejudice. Were it otherwise, the State argues, two different phrases, "shall be dismissed" and dismissed "with prejudice," in these two related statutes would be given the same meaning, and the words "with prejudice" in the interstate detainer statute would be superfluous.

¶ 24. We are not convinced by the State's reasoning. The phrase "with prejudice" in the Interstate De-tainer Act was clearly intended to ensure that dismissals under that act were with prejudice. The phrase "with prejudice" will not be superfluous regardless of how the phrase "shall be dismissed" in Wis. Stat. § 971.11(7) is interpreted. Neither the language nor the history of the two statutes makes it clear, as the State contends, that the legislature intended a dismissal of a criminal case under the two statutes to result in different outcomes.

¶ 25. Third, the State argues that interpreting Wis. Stat. § 971.11(7) to grant circuit courts the discretion to dismiss a criminal case with or without prejudice intrudes into the realm of prosecutorial discretion. The State asserts that under § 971.11(7) a circuit court shall dismiss a criminal case in two circumstances: (1) if the district attorney moves to dismiss the case; or (2) if the case is not brought on for trial within the time specified in subsections (2) or (3). The phrase "shall be dismissed" applies to both situations and must be interpreted in the same way for both situations.

¶ 26. The State argues that the legislature did not intend to limit a district attorney's discretion to dismiss a criminal case by allowing a circuit court to dismiss the criminal case with prejudice upon the district attorney's motion to dismiss. We disagree with the State. Although prosecutors have broad discretion in criminal matters, that discretion is not without limits. We conclude that the legislature achieved its objective in Wis. Stat. § 971.11(7) of prompt disposition of certain cases by increasing the circuit court's power over a prosecutor's power to dismiss a criminal case.

¶ 27. Because the defendant in the present case properly requested a prompt disposition of his criminal case pursuant to Wis. Stat. § 971.11, we conclude that the State's failure to bring the case on for trial within the 120-day time period set forth in § 971.11(2) permits the circuit court under § 971.11(7) to exercise its discretion to dismiss the criminal case with or without prejudice.

HH I — I I — I

¶ 28. We must now determine whether the circuit court properly exercised its discretion in dismissing the criminal case against the defendant with prejudice. A reviewing court will affirm a discretionary decision by a circuit court so long as the circuit court did not erroneously exercise its discretion. An erroneous exercise of discretion results when the exercise of discretion is based on an error of law. An erroneous exercise of discretion occurs when the circuit court does not consider the facts of record under the relevant law or does not reason its way to a rational conclusion.

¶ 29. In exercising its discretion to dismiss a criminal case with or without prejudice for the State's failure to bring the case on for trial within the time period set forth in Wis. Stat. § 971.11(7), a circuit court should consider a number of factors, including, but not limited to, the following: the reasons for and the length of the delay in bringing the criminal case on for trial; whether the nature of the case makes it unreasonable to expect adequate preparation within the statutory time period; an accused's conduct contributing to the delay; an accused's waiver of the statutory right to prompt disposition; the harm to an accused resulting from the delay, such as anxiety and concern; the effect of the delay on an accused's legal defenses; the effect of the delay on the programs and movement within the institutions available to an accused; the effect of the delay on the orderly rehabilitation process of an accused within the Department of Corrections; the effect of the delay on an accused's concurrent sentencing possibilities; the effect of the delay on an accused's possible transfer to a less secure facility; the effect of the delay on an accused's opportunity for parole; the effect of the delay on the transfer of the accused to another institution; the effect of the delay and dismissal on the public interest in the prompt prosecution of crime; and the effect of the delay and dismissal on the victim. By balancing these and other factors, the circuit court will not necessarily produce the same result in every case.

¶ 30. The circuit court in the present case reasoned that dismissal of the criminal case against the defendant with prejudice was necessary as a matter of law under Wis. Stat. § 971.11 because dismissal without prejudice would leave no remedy for any inmate to enforce the statutory right .of prompt disposition under § 971.11. The circuit court stated in relevant part:

I find as a matter of law that any time charges are filed against someone in a correctional institution and they file a. .. prompt disposition request, that 971.11 should be complied with to the letter.... I also find as a matter of law that... dismissal without prejudice in this Court's view would leave absolutely no teeth in the statute whatsoever. As far as I'm concerned, it would mean that the inmate has a remedy without any enforcement power.

¶ 31. The circuit court also recognized the special interest shared by inmates and society in the speedy disposition of pending criminal charges. Rehabilitation is hampered, stated the circuit court, by keeping inmates in security classifications that because of pending charges may not be appropriate. The circuit court stated: "I'm assuming we are all interested in rehabilitating our inmates. We can't rehabilitate our inmates by keeping them in security classifications simply because there are charges pending elsewhere."

¶ 32. The circuit court further reasoned that all of the persons charged with carrying out the requirements of Wis. Stat. § 971.11 in the present case failed except for the defendant, who properly sought the prompt disposition of the criminal case against him. The circuit court stated:

I don't think all of the requirements of the statute have been complied with by the people who are required to comply with it.
If the Court has some sort of obligation here, the Court didn't comply with it. The district attorney didn't comply with it. The warden didn't comply with it. The sheriff didn't comply with it. The only person as far as I can tell that complied with any portion of the statute is [the defendant] himself.

¶ 33. The circuit court appears to have decided that Wis. Stat. § 971.11(7) requires dismissal of a criminal case with prejudice as a matter of law. The circuit court seems to have further concluded that unless the present case was dismissed with prejudice, an accused would have no remedy to enforce the statutory right to prompt disposition. The circuit court's rationale and the application of the rationale to the facts in the present case come close to requiring dismissal with prejudice in every criminal case when a district attorney fails to bring a case on for trial within the 120-day time period set forth in § 971.11(2). We therefore conclude, in contrast to the court of appeals, that the circuit court did not properly exercise its discretion to consider dismissal without prejudice before dismissing the criminal case against the defendant with prejudice.

¶ 34. In summary, we conclude, as did the court of appeals, that Wis. Stat. § 971.11(7) grants a circuit court the discretion to dismiss a criminal case with or without prejudice if the case has not been brought on for trial within the 120-day time period set forth in § 971.11(2). We further conclude that the circuit court did not properly exercise its discretion in the present case, and accordingly, we remand the cause to the circuit court to exercise its discretion consistent with this court's interpretation of § 971.11(7).

By the Court. — The decision of the court of appeals is reversed and the cause is remanded to the circuit court.

       All subsequent references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise indicated.

       This case does not involve any constitutional issues and the dismissal is prior to the attachment of jeopardy.

       This statute has also been referred to as Wisconsin's Disposition of Intrastate Detainer Act under a previous codification. State v. Fogle, 25 Wis. 2d 257, 260, 130 N.W.2d 871 (1964).

       According to the stamp of the Dodge County Clerk of Courts, the request for prompt disposition was filed on April 12, 1999.

        State v. Davis, 2001 WI App 63, ¶¶ 11 and 12, 242 Wis. 2d 344, 626 N.W.2d 5.

        Dixon v. Dixon, 107 Wis. 2d 492, 498-99, 319 N.W.2d 846 (1982).

        Dixon, 107 Wis. 2d at 498-99.

        Davis, 2001 WI App 63 at ¶ 15.

        State ex rel. Fredenberg v. Byrne, 20 Wis. 2d 504, 511, 123 N.W.2d 305 (1963).

        Davis, 2001 WI App 63 at ¶ 14 (quoting letter from Director of Public Welfare to the members of the State Board of Public Welfare recommending prompt passage of the Intrastate Detainer Act).

        State v. Adams, 207 Wis. 2d 568, 575, 558 N.W.2d 923 (Ct. App. 1996).

        Davis, 2001 WI App 63 at ¶ 15.

       Wisconsin Stat. § 971.10(2)(a) and (3) provides in relevant part as follows:
      (2) (a) The trial of a defendant charged with a felony shall commence within 90 days from the date trial is demanded by any party in writing or on the record ....
      (3) (a) A court may grant a continuance in a case, upon its own motion or the motion of any party, if the ends of justice served by taking action outweigh the best interest of the public and the defendant in a speedy trial. A continuance shall not be granted under this paragraph unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of the continuance outweigh the best interests of the public and the defendant in a speedy trial.
      (b) The factors, among others, which the court shall consider in determining whether to grant a continuance under par. (a) are:
      1. Whether the failure to grant the continuance in the proceeding would be likely to make a continuation of the proceeding impossible or result in a miscarriage of justice.
      2. Whether the case taken as a whole is so unusual and so complex, due to the number of defendants or the nature of the case or otherwise, that it is unreasonable to expect adequate preparation within the periods of time established by this section.
      3. The interests of the victim, as defined in s. 950.02(4).
      (c) No continuance under par. (a) may be granted because of general congestion of the court's calendar or the lack of diligent preparation or the failure to obtain available witnesses on the part of the state.

        State v. Braunsdorf 98 Wis. 2d 569, 585, 297 N.W.2d 808 (1980). The court reaffirmed Braunsdorf in State v. Krueger, 224 Wis. 2d 59, 61, 588 N.W.2d 921 (1999).

       Wisconsin statutes vary as to whether they merely state that a cause be dismissed (see, e.g., Wis. Stat. §§ 961.47(1), 968.02(2), 970.03(10), 971.09(5), 971.11(7), 973.11(4), 980.04(3), and 980.05(5)); that a cause be dismissed without prejudice (see, e.g., Wis. Stat. §§ 968.03(3), 971.01(2), and 971.14(1)(c)); and that a cause be dismissed with prejudice (see, e.g., Wis. Stat. §§ 971.37(3), 971.39(1)(f), 976.05(3)(d), 976.05(4)(e), and 976.05(5)(c)).

        Hull v. State Farm. Mut. Auto Ins. Co., 222 Wis. 2d 627, 635-6, 586 N.W.2d 863 (1998).

        Hull, 222 Wis. 2d at 636.

        Burkes v. Hales, 165 Wis. 2d 585, 590-91, 478 N.W.2d 37 (Ct. App. 1991).

       The court of appeals noted that the State did not raise the issue of the defendant's waiver of his statutory right to prompt disposition in the circuit court and, therefore, the court of appeals would not consider the argument. The court of appeals 'also concluded that the record is insufficient to evaluate whether any of the defendant's or defense counsel's actions could be construed as a waiver. Davis, 2001 WI App 63 at ¶ 5 n.3.


author: WILLIAM A. BABLITCH, J.

text:
    State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Carl R. Kramer, Defendant-Appellant.
    Supreme Court

      No. 99-2580-CR.

      Oral argument September 17, 2001.

    Decided December 18, 2001.

    2001 WI 132
    (Also reported in 637 N.W.2d 35.)

      For the plaintiff-respondent-petitioner the cause was argued by Thomas J. Balistreri, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.
    For the defendant-appellant there was a brief by Stephen D. Willett and Stephen D. Willett, S.C., Phillips, and oral argument by Stephen D. Willett.

   WILLIAM A. BABLITCH, J.

¶ 1. Petitioner Carl Kramer (Kramer), a tavern owner in the Village of North Fond du Lac, was convicted on two counts of being a party to the crime of commercial gambling after his tavern made payouts on two separate occasions to police investigators who earned credits on a video slot machine in the tavern. Kramer had moved to dismiss his criminal complaint on selective prosecution grounds, arguing that he and other owners of taverns located in North Fond du Lac were unfairly singled out for prosecution. The circuit court denied this motion, permitting the trial at which the defendant was convicted. The court of appeals reversed both the order denying Kramer's motion to dismiss and his judgment of conviction after concluding that Kramer was selectively prosecuted.

¶ 2. The State now appeals and asserts that Kramer did not meet his burden on one of the elements of selective prosecution: that the prosecution had a discriminatory effect. We disagree. Because the evidence in this case establishes a prima facie showing of discriminatory effect, and because the State concedes that there was a prima facie showing of discriminatory purpose, we agree with the court of appeals' determination that Kramer established a prima facie claim of selective prosecution. We disagree, however, with the court of appeals' determination that the State failed to rebut this prima facie claim by demonstrating a valid exercise of discretion. The State was never afforded the opportunity to rebut this prima facie claim by presenting evidence showing a valid use of prosecutorial discretion. We therefore reverse the court of appeals' decision and remand to the circuit court for an evidentiary hearing on the rebuttal issue.

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¶ 3. Kramer owned The Dog House Saloon in the Village of North Fond du Lac in Fond du Lac County. On July 12, 1996, a bartender at The Dog House Saloon paid cash to an undercover police investigator for credits the investigator had accumulated while playing a video slot machine. The investigator was a member of the Lake Winnebago Area Metropolitan Enforcement Group Drug Unit (MEG Unit). The MEG Unit was working with the Village of North Fond du Lac Police Department in investigating commercial gambling in North Fond du Lac. At that time, the Fond du Lac County District Attorney's Office and the Fond du Lac County Sheriffs Department were allegedly not investigating or prosecuting such activity because they believed that the law was unclear concerning whether this activity constituted criminal commercial gambling in violation of Wis. Stat. § 945.03(5)(1995-96).

¶ 4. This prosecution policy was later changed in light of the court of appeals' decision in State v. Hahn, 203 Wis. 2d 450, 553 N.W.2d 292 (Ct. App. 1996). In Hahn, Hahn was prosecuted under Wis. Stat. § 945.03(5) after he collected proceeds from video poker machines, which he had placed in three Jefferson County taverns. Id. at 452. The issue presented to the court of appeals was whether Hahn's video poker machines were "gambling machines" under Wis. Stat. § 945.01(3). Id. at 454. The court held that a video poker machine is a "gambling machine" only if it affords a successful player an opportunity to obtain something of value, even if the machine itself does not award the prize. Id. at 457-458. Thus, Hahn clarified the type of machine that may form the basis for a violation of § 945.03(5).

¶ 5. On September 2, 1996, the Fond du Lac County District Attorney and the Fond du Lac County Sheriff sent a letter to tavern owners in the county warning them of the change in policy and informing them that complaints of payouts on video poker machines would now be investigated and prosecuted. The body of the letter stated in full:

Dear Tavern Owner/Liquor License Holder:
We are writing to you today to address the issue of video games that can be used as gambling devices. We recognize the fact that this issue is controversial and has been in litigation for some time. The Wisconsin Attorney General has taken the position that video poker machines are gambling machines. A recent Court of Appeals decision indicates that their presence is not in itself a violation, but any type of pay-out from playing the machine constituted an act of gambling.
Some jurisdictions have already chosen to confiscate machines because of their mere presence, but the Fond du Lac County Sheriffs Department and the District Attorney's Office have been patient with this issue because of the vagueness of the law. The Court of Appeals has now established a precedent \Hahn] which will stand unless a higher court overrules it. In the future, Deputies will make note of who has machines when they do their routine tavern checks. If we receive a complaint that payouts of any kind are being made in an establishment, we will commence a commercial gambling investigation. You should be aware that a conviction for commercial gambling under state statute 945.03 is a felony. The law also provides for such matters to be forwarded to the licensing authority for revocation of the establishment's liquor license.
We are sure that the legal battle will continue over video gambling, but this henceforth will be the policy of the Fond du Lac County Sheriffs Department and the District Attorney's Office. We do not seek to exacerbate the situation, but we will not be put in a position where we are unable to respond in an effective manner to a violation of the law. For those of you who do not have machines, we apologize for taking your time. For those of you that do, this letter will serve as your only warning to this policy. If you have any questions on this matter, please feel free to call on us. [Second, third, and fourth emphases added.]

This letter was not sent to Kramer or any other owner of a tavern located in the Village of North Fond du Lac.

¶ 6. On December 4, 1996, after playing a video slot machine at The Dog House Saloon, an undercover investigator from the MEG Unit received a payout from Kramer, who was tending bar at that time. The next day, a search warrant was executed at the tavern, during which a video slot machine was seized. That same day, search warrants were also executed and video gambling machines seized at several other North Fond du Lac taverns, including (1) The North Fondy Connection owned by Charles Erke; (2) The Village Vault owned by Carol Van Norman; and (3) The Freight House Tavern owned by Roger Lange.

¶ 7. Kramer was subsequently charged with two counts of being a party to the crime of commercial gambling in violation of Wis. Stat. §§ 939.05 and 945.03(5) for the payouts on July 12, 1996 and December 4, 1996. Charges were also brought against Erke, Van Norman, and Lange. No tavern owners outside the Village of North Fond du Lac were prosecuted on commercial gambling charges.

¶ 8. Kramer moved to dismiss the charges based in part on the claim that he was the victim of selective prosecution. He alleged that he and other owners of taverns located in North Fond du Lac were unfairly singled out for prosecution. According to Kramer, this systematic prosecution was evidenced by the fact that he and the other North Fond du Lac tavern owners were the only tavern owners in the county prosecuted even though they never received a letter from the prosecutor informing them of the change in policy. This unfairness was exacerbated, Kramer contended, by the fact that North Fond du Lac Police Chief Larry Wodack assured him and the other tavern owners that their use of video slot machines was legal, while at the same time Wodack was conducting an investigation into alleged commercial gambling against these same owners. Kramer alleged that Wodack's overall objective was to eliminate some of the taverns in North Fond du Lac.

¶ 9. The Fond du Lac County Circuit Court, the Honorable Peter L. Grimm presiding, denied the motion, concluding that Kramer had failed to make a prima facie case of selective prosecution. The court noted that selective prosecution may be raised when the defendant is a member of a protected class; it concluded, however, that Kramer did not fall within any such classification. Selective prosecution, the court stated, could also occur in instances where the defendant is a solitary prosecution. The court then viewed Kramer's evidence to support this claim, including various police reports showing three seizures of video gambling machines in City of Fond du Lac taverns. The owners of these taverns were never prosecuted. The court determined, however, that the city cases did not support the selective prosecution claim because they were factually distinguishable from Kramer's case based on a lack of evidence to show commercial gambling. The court noted that in two of the city cases there was no evidence of payouts or of actual customers playing the games to get money from the tavern owners. In the third city case, although there was evidence that the tavern owner admitted to video gambling taking place in the tavern, the court concluded that there was still no actual evidence of a payout to a customer. This evidence, the court stated, amounted to an insufficient statistical showing to constitute a prima facie claim of selective prosecution.

¶ 10. The court did not regard the distribution of the warning letter as having any significance on the selective prosecution claim; in fact, it stated that the letter by itself was insufficient to show evidence of malicious prosecution. The prosecutor, the court stated, was not constitutionally required to provide any such warning letter because the owners were expected to follow and obey the law. In addition, no vindictiveness was found on the part of the police to support the selective prosecution claim. The court stated that the desire to have fewer taverns was not an improper motive. After concluding that a prima facie case was not established, the court excused a number of witnesses the State had produced to rebut any prima facie showing. A jury later convicted Kramer on the two counts.

¶ 11. Kramer appealed, and, in a published decision, the court of appeals reversed, holding that Kramer had been selectively prosecuted. State v. Kramer, 2000 WI App 271, ¶ 1, 240 Wis. 2d 44, 622 N.W.2d 4. The court concluded that, based primarily on the discriminatory manner in which the county distributed the warning letter, Kramer had presented a prima facie showing of selective prosecution. Id. at ¶¶ 10-13. The court also concluded that the State had failed to rebut this showing by demonstrating a valid exercise of prosecutorial discretion. Id. at ¶¶ 13-15. As a result, the court reversed the order denying Kramer's motion to dismiss and reversed his judgment of conviction. Id. at ¶ 16.

¶ 12. We granted the State's petition for review. On appeal to this court, the State concedes that Kramer established a prima facie showing of discriminatory purpose, which is one of the two prongs necessary to establish a prima facie case for selective prosecution. However, it argues that Kramer's selective prosecution claim must fail because he did not establish a prima facie showing on the other prong, that the prosecution had a discriminatory effect. More specifically, the State asserts that Kramer failed to present sufficient evidence to show that similarly situated tavern owners outside the Village of North Fond du Lac were also engaged in commercial gambling but were not prosecuted. We disagree. As discussed below, the evidence presented by Kramer established a prima facie showing of discriminatory effect, and as a result, a prima facie case for selective prosecution was made. We disagree with the court of appeals' conclusion, however, that the State failed to rebut this prima facie showing because it was never afforded an opportunity to present evidence on this issue. For this reason, this case must be remanded for further proceedings.

II

¶ 13. This case presents two issues concerning Kramer's claim of selective prosecution. The first issue is whether he presented a prima facie case for selective prosecution. We conclude that he did. The second issue is whether the State rebutted this prima facie case by presenting evidence of a valid exercise of prosecutorial discretion. We conclude that remand to the circuit court is necessary to decide this issue.

¶ 14. "A prosecutor has great discretion in deciding whether to prosecute in a particular case." County of Kenosha v. C & S Mgmt., 223 Wis. 2d 373, 400, 588 N.W.2d 236 (1999) (citing Sears v. State, 94 Wis. 2d 128, 133, 287 N.W.2d 785 (1980)). "Exercise of this discretion necessarily involves a degree of selectivity." Sears, 94 Wis. 2d at 134. For this reason, a prosecutor's conscious exercise of some selectivity in enforcement does not in itself create a constitutional violation. Id. (quoting Oyler v. Boles, 368 U.S. 448, 456 (1962)). A violation of the Fourteenth Amendment of the United States Constitution will occur, however, when a defendant can show "persistent selective and intentional discrimination in the enforcement of the statute in the absence of valid exercise of prosecutorial discretion." State v. Johnson, 74 Wis. 2d 169, 172, 246 N.W.2d 503 (1976).

¶ 15. "A selective-prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution." United States v. Armstrong, 517 U.S. 456, 463 (1996). An allegation that the defendant was selectively prosecuted is judged under ordinary equal protection stan-darás. C & S, 223 Wis. 2d at 401 (citing Wayte v. United States, 470 U.S. 598, 608 (1985)). A defendant has the initial burden to present a prima facie showing of discriminatory prosecution before he or she is entitled to an evidentiary hearing on the claim. Id. (citing State v. Nowakowski, 67 Wis. 2d 545, 565-66, 227 N.W.2d 697 (1975)). If the defendant succeeds, the burden then shifts to the state to show that the charging decision reflects a valid exercise of prosecutorial discretion. Johnson, 14 Wis. 2d at 175.

¶ 16. A defendant establishes a prima facie case when the facts presented are sufficient to raise a reasonable doubt as to the prosecution's purpose. See Nowakowski, 67 Wis. 2d at 567-68 (applying United States v. Falk, 479 F.2d 616, 620-23 (7th Cir. 1973)). More specifically, a prima facie case requires the defendant to submit evidence which, if credited, is sufficient to establish a fact or facts which it is adduced to prove. See Thomas v. City of West Haven, 734 A.2d 535, 540 (Conn. 1999). In other words, it is evidence that is sufficient to raise an issue to go to the trier of fact. Id. (citing 9 Wigmore Evidence § 2494 (4th ed. 1974)).

¶ 17. We review the circuit court's decision on whether the defendant has established a prima facie case on selective prosecution under the clearly erroneous standard because both prongs of the analysis for selective prosecution (discriminatory purpose and discriminatory effect) essentially involve factual inquiries. See State v. McCollum, 159 Wis. 2d 184, 193-94, 201-02, 464 N.W.2d 44 (Ct. App. 1990); United States v. Gutierrez, 990 F.2d 472, 475 (9th Cir. 1993). Under this standard, we will uphold the decision of the circuit court if it is supported by credible evidence or reasonable inferences that can be drawn from this evidence. See State v. Lopez, 173 Wis. 2d 724, 729, 496 N.W.2d 617 (Ct. App. 1992). Our review of whether the circuit court applied the correct legal standard, however, is a question of law that we review de novo. McCollum, 159 Wis. 2d at 194.

¶ 18. To establish a prima facie showing on a selective prosecution claim, a defendant must show that the prosecution had a discriminatory effect and that it was motivated by a discriminatory purpose. C & S, 223 Wis. 2d at 401 (citing Wayte, 470 U.S. at 608). That is, a defendant must show that he or she has been singled out for prosecution while others similarly situated have not (discriminatory effect) and that the prosecutor's discriminatory selection was based on an impermissible consideration such as race, religion or another arbitrary classification (discriminatory purpose). Id. (citing United States v. Kerley, 787 F.2d 1147, 1148 (7th Cir. 1986)); Sears, 94 Wis. 2d at 134 (citing Oyler, 368 U.S. at 456). Under the discriminatory purpose prong, a defendant is not limited to proving his or her case through proof of discriminatory selection based on suspect or arbitrary classifications. In cases involving solitary prosecutions, a defendant may also show that "the government's discriminatory selection for prosecution is based on a desire to prevent the exercise of constitutional rights or motivated by personal vindictiveness on the part of a prosecutor or the responsible member of the administrative agency recommending prosecution." Id. at 135 (citations omitted).

¶ 19. For purposes of this appeal, the parties concede that Kramer established a prima facie case for discriminatory purpose. The prosecutions were limited to charges against North Fond du Lac tavern owners, indicating that the prosecutions were based on an arbitrary consideration: geographic location. At oral argument, the State conceded that the county's failure to distribute the warning letter to North Fond du Lac tavern owners shows a discriminatory intent against these tavern owners. Indeed, discriminatory intent was also evidenced by the fact that the State applied its prosecution policy retroactively only against Kramer for the July 12, 1996 incident, even though the letter suggested that the policy would only apply prospectively. Nevertheless, because of the concession, our review focuses on whether Kramer met his burden in establishing a prima facie case for discriminatory effect.

¶ 20. Under the discriminatory effect prong, we look at whether persons similarly situated to the defendant were generally not subject to prosecution. C & S, 223 Wis. 2d at 401. " '[Defendants are similarly situated when their circumstances present no distinguishable legitimate prosecutorial factors that might justify making prosecutorial decisions with respect to them.'" Id. at 404-05 (quoting United States v. Olvis, 97 F.3d 739, 744 (4th Cir. 1996)). The inquiry must focus on the governmental action challenged. That is, the inquiry examines whether the defendant is similarly situated to another group with respect to the challenged governmental action. Klinger v. Dep't of Corr, 31 F.3d 727, 731 (8th Cir. 1994). Courts must be careful, however, not to define who is similarly situated too narrowly. Chavez v. Ill. State Police, 251 F.3d 612, 636 (7th Cir. 2001). The governmental action challenged in this case was the State's prosecution of tavern owners in North Fond du Lac for commercial gambling. The circuit court correctly examined the evidence to determine whether any tavern owners outside of North Fond du Lac had also been engaged in commercial gambling but were not prosecuted. We examine the evidence in a similar manner.

¶ 21. In support of his motion, Kramer presented several police reports from the City of Fond du Lac Police Department involving three different city taverns where video slot machines were found in 1996. The report concerning a tavern named Beernuts is of particular importance to Kramer's claim. According to this report, the police received an anonymous complaint on September 5, 1996, alleging that a gambling machine was in operation at the tavern and that the tavern was making payouts for credits earned on the machine. The police then conducted an investigation on September 13, 1996, during which the owner and an employee of the tavern both admitted to making payouts. Although the police confiscated the gambling machine and referred the matter to the county district attorney's office, after the September 2, 1996 letter and change in policy, no subsequent prosecution was pursued. Beernuts is similarly situated to Kramer's tavern inasmuch as there was evidence that Beernuts likewise made payouts for credits earned on a gambling machine.

¶ 22. The other police reports submitted by Kramer involved Frannie's Bar and Sully's Tavern. In both cases, during checks of taverns for video gambling machines in April 1996, City of Fond du Lac police discovered machines in the taverns. The police confiscated the machines and referred the matters to the county district attorney's office. The owners of these taverns were never prosecuted. The police reports do not indicate whether the owners of the taverns were making payouts on these machines, as Kramer did at his tavern on July 12, 1996 and December 4, 1996. However, before the county changed its prosecution policy on September 2, 1996, there is no evidence that payouts were required for purposes of prosecution in Fond du Lac County. Further, the court of appeals did not decide Hahn until July 18, 1996. Thus, before July 18,1996, Kramer was similarly situated to other tavern owners who had video gambling machines; that is, all such taverns were subject to prosecution — at least according to the interpretation of commercial gambling from the Attorney General — even though the district attorney was not pursuing such prosecutions. Therefore, despite the fact that the warning letter indicated that the prosecution policy would apply prospectively, the prosecutor applied it retroactively against Kramer only, not to other similarly situated taverns. Kramer was prosecuted for a violation during this period while other similarly situated tavern owners outside of North Fond du Lac were not prosecuted.

¶ 23. Finally, the letter is important in our analysis. The sending of the letter suggests that many tavern owners throughout the county were similarly situated to Kramer, that is, that they were equally suspected of having video poker machines. The letter warned that all tavern owners who had such machines would be subject to the same enforcement policy. Although the record is unclear as to which taverns received the letter, the record is clear that the letter was never sent to North Fond du Lac tavern owners. Several tavern owners in North Fond du Lac were then targeted for prosecution by the county for alleged violations. Tavern owners outside of North Fond du Lac were not prosecuted. This record presents no distinguishable legitimate prosecu-torial factors that justify making these prosecutorial distinctions with respect to the North Fond du Lac tavern owners.

¶ 24. We conclude that, collectively, the above evidence established a prima facie case for discriminatory effect. The circuit court's determination on this issue was clearly erroneous because it was not supported by the credible evidence and reasonable inferences that could be drawn from the evidence. The circuit court applied the correct legal standard because it examined, as the discriminatory effect prong requires, whether Kramer had produced evidence to show that others similarly situated to him were not prosecuted. It erred, however, by requiring similarly situated cases to have identical evidence as Kramer's case for prima facie purposes. In its analysis, the court erred first by concluding that Beernuts was not similarly situated based solely on the fact that there was no actual evidence of a payout to a customer. The admission of the owner of Beernuts that payouts occurred was sufficient to show Beernuts was similarly situated. Second, the court erred by regarding the other police reports as irrelevant because they did not involve payouts. There was no express policy requiring payouts for prosecution prior to the release of the letter, and therefore, these taverns were similarly situated to Kramer with respect to his pre-Hahn prosecution. Finally, for reasons explained above, the court erred by concluding that the letter had no bearing on discriminatory effect. As discussed above, the evidence indicates that North Fond du Lac tavern owners were specifically targeted for prosecution while other similarly situated tavern owners outside of North Fond du Lac were ignored. This evidence was sufficient to raise a reasonable doubt as to the prosecution's purpose.

¶ 25. As a result, the burden now properly shifts to the State to rebut the prima facie showing of selective prosecution. At this stage, the test is whether there exists any reasonable basis to justify the classification. State v. Barman, 183 Wis. 2d 180, 191, 515 N.W.2d 493 (Ct. App. 1994). The government is required to put forth compelling evidence to meet its burden. Falk, 479 F.2d at 624. The defendant may also present additional evidence supporting his claim. Id. In this case, the circuit court never reached a determination on rebuttal evidence. It ended its analysis after concluding that a prima facie case had not been established. Regardless, an examination of the record reveals the State never submitted any evidence to rebut a prima facie case. Instead, the State argued that Kramer's evidence did not support a prima facie case and that therefore an evidentiary hearing was unnecessary. The State did argue that its decisions not to prosecute in the city cases were based on the adequacy of the evidence; however, there was insufficient evidence in the record at the time of the hearing to support this allegation.

¶ 26. The court of appeals concluded that the State failed to rebut the prima facie showing. The court noted that the State had alleged that the sheriffs department, not the district attorney, was responsible for the distribution of the letter and that therefore the letter indicated a new policy for the sheriff, not the district attorney. As the court of appeals concluded, this argument contradicts the plain language of the letter because it was signed by both the district attorney and the sheriff. However, the court of appeals' decision not to remand for an evidentiary hearing failed to provide the State with sufficient opportunity to present evidence to rebut Kramer's prima facie case. We therefore remand to the circuit court to conduct an evidentiary hearing to determine whether the State has produced sufficient evidence to rebut this prima facie showing.

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¶ 27. In sum, we conclude that Kramer met his burden in establishing a prima facie case of discriminatory effect. Therefore, because the parties concede that a prima facie case of discriminatory purpose was shown, we agree with the court of appeals' decision that a prima facie showing of selective prosecution was made. We disagree, however, with the court of appeals' determination that the State failed to rebut this showing with evidence displaying a proper use of prosecutorial discretion. The State must be afforded the opportunity to present evidence on this issue. As a result, we remand to the circuit court for an evidentiary hearing on this issue. The judgment of conviction stands subject to the results of the evidentiary hearing.

By the Court. — The decision of the court of appeals is reversed and cause remanded.

       All subsequent references to the Wisconsin Statutes are to the 1995-96 version unless otherwise noted.
      This statute provides in relevant part as follows:
      945.03 Commercial gambling. Whoever intentionally does any of the following is engaged in commercial gambling and is guilty of a Class E felony:
      (5) Sets up for use for the purpose of gambling or collects the proceeds of any gambling machine. . . .