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State v. Kollross

Court of Appeals of Wisconsin, District I

May 21, 2019

State of Wisconsin, Plaintiff-Respondent,
v.
Traci L. Kollross, Defendant-Appellant.

          APPEAL from an order of the circuit court for Milwaukee County No. 2015CT309 : JEAN M. KEIS, Judge. Reversed and cause remanded with directions.

          Before Kessler, P.J., Brennan and Brash, JJ.

          KESSLER, P.J.

         ¶1 Traci L. Kollross appeals a non-final order of the circuit court which denied her motion to dismiss a charge of operating while intoxicated (OWI) as a second offense. We reverse and remand the matter for proceedings consistent with this opinion.

         BACKGROUND

         ¶2 On May 28, 2011, Kollross was arrested in the City of West Allis after police were dispatched to the scene of an accident. Officer Todd Clementi suspected that Kollross was intoxicated. A subsequent blood test revealed the presence of oxycodone, cyclobenzaprine, and alprazolam. The May 28, 2011 offense was initially prosecuted in the City of West Allis Municipal Court as an OWI-first offense. Kollross made an initial appearance on July 18, 2011. Following her conviction, Kollross appealed the matter to the Milwaukee County Circuit Court. Because the City of West Allis failed to timely produce its witness for the scheduled court trial, the circuit court dismissed the matter without prejudice on April 17, 2013. The citation was reissued and, following a motion for substitution of the municipal court judge, prosecution was reinitiated in Wauwatosa Municipal Court.

         ¶3 While the May 28, 2011 OWI-first offense municipal citation was pending, Kollross was arrested for another OWI offense in Washington County on January 26, 2012. The January 26, 2012 offense was charged as an OWI-first offense. Kollross pled guilty in the Washington County matter and was convicted of OWI-first on July 11, 2014. Consequently, the Wauwatosa Municipal Court dismissed the pending OWI-first citation for lack of subject matter jurisdiction.

         ¶4 On February 5, 2015, the Milwaukee County District Attorney's Office issued a criminal complaint, charging Kollross with an OWI-second offense for the May 28, 2011 incident. Kollross moved to dismiss the complaint, alleging that the three-year statute of limitations for misdemeanor crimes as set forth in Wis.Stat. § 939.74 (2017-18)[1] had passed for the May 28, 2011 incident. The statute provides as relevant:

(1) Except as provided in subs. (2) and (2d) and s. 946.88(1), prosecution for a felony must be commenced within 6 years and prosecution for a misdemeanor or for adultery within 3 years after the commission thereof. Within the meaning of this section, a prosecution has commenced when a warrant or summons is issued, an indictment is found, or an information is filed.
….
(3) In computing the time limited by this section, the time … during which a prosecution against the actor for the same act was pending shall not be included. A prosecution is pending when a warrant or a summons has been issued, an indictment has been found, or an information has been filed.

         The State opposed the motion, arguing that the statute of limitations for the May 28, 2011 offense was tolled while the matter was pending.

         ¶5 The circuit court denied Kollross's motion stating that Wis.Stat. § 939.74(3) "provides that because she made an appearance in response to [the May 28, 2011] ticket, that in computing the time limit by the statute, that from the date of July 18, 2011, until today, the time limits were tolled." The court further stated:

[A]ll of the time that was spent on this case in the West Allis Municipal Court, and then this case being appealed to Milwaukee County Circuit Court previously, and then the Wauwatosa ...

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