May 31, 2023 – A circuit court that orally dismissed a criminal case only to minutes later re-instate the case did not lose subject matter jurisdiction, the Wisconsin Court of Appeals has ruled.
In State v. Davis, 2021 AP1526 (April 4, 2023), the Wisconsin Court of Appeals District I also held that a circuit court has the inherent authority to reconsider its rulings during an ongoing proceeding.
On Oct. 28, 2019, Rasheem Davis approached his ex-girlfriend Alicia as she left a class at Milwaukee Area Technical College (MATC).
Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.
Davis followed Alicia into the women’s bathroom. Once inside, he trapped her in a stall. He grabbed her neck and bit her on the face, then took her phone and left the bathroom.
The Milwaukee County District Attorney filed two cases against Davis arising out of these events.
The first case, No. 2019CF4828, related to the events of Oct. 28, 2019. The state charged Davis with one count each of false imprisonment, robbery with the use of force, misdemeanor battery, disorderly conduct, and misdemeanor bail jumping, all with domestic battery enhancers.
The second case, No. 2020CF774, related to the events of Oct. 19, 2019, when the police tried to pull over Alicia’s car while it was being driven by Davis, with Alicia inside the car.
At 9:26 a.m. on Aug. 3, 2020, the Milwaukee County Circuit Court called Davis’s case No. 2019CF4828.
The prosecutor told the court that the state couldn’t proceed because it hadn’t been able to locate Alicia. Davis’s lawyer moved to have the case dismissed without prejudice.
The court and the attorneys went off the record to set a date for Davis’s other cases. A few minutes later, the court went back on the record after the prosecutor told the court that Alicia had shown up and the state was ready to go to trial.
The court ended the proceeding at 9:30 a.m.
Trial Held Later the Same Day
Later on Aug. 3, 2020, the circuit court transferred Davis’s case (No. 2019CF4828) to another judge, who proceeded with a jury trial that same day.
The jury heard testimony from Alicia and the police officer who responded to MATC. The jury saw a photo of the bite mark on Alicia’s face, as well as body-cam footage from the responding officer and footage from an MATC surveillance camera.
Alicia testified that on Oct. 28, 2019, Davis followed her into the bathroom. Alicia testified that Davis grabbed her by the neck and demanded that she send a text saying that she and Davis were still in a relationship.
Davis bit Alicia after she didn’t send the text. When she pulled her phone out of her pocket, Davis grabbed the phone and ran out of the bathroom and then through a fire exit. Alicia followed him outside.
In an alley near the exit, Davis tried to give Alicia cigarettes and baby photos in an effort to convince her that he would return and give her back the phone.
Davis then said he would give Alicia back her phone if she went around the corner and waited for him. Alicia waited for 30 minutes but Davis never showed up.
Motion for Post-conviction Relief
The jury convicted Davis in case No. 2019CF4828. Davis then pled guilty in case No. 2020CF774 to one count of fleeing or eluding an officer; the charge of second-degree recklessly endangering safety was dismissed and read in for sentencing purposes.
Davis filed a post-conviction motion. He argued that:
the circuit court lacked subject matter jurisdiction in case No. 2019CF4828;
his attorney provided ineffective assistance of counsel by not objecting to a lack of personal jurisdiction; and
he was entitled to withdraw his plea in case No. 2020CF774.
The circuit court denied the motion. Davis appealed.
Oral Dismissal Not Final Disposition
Davis argued that the circuit court lost subject matter jurisdiction over case No. 2019CF4828 by orally dismissing the case without prejudice after the prosecutor said that the state had been unable to locate Alicia. The dismissal, Davis argued, was a final disposition.
Writing for a three-judge panel, Judge Timothy Dugan pointed out that the court’s dismissal was oral and had not been entered on the docket when the prosecutor said that Alicia was present and ready to testify.
“There was no ‘appreciable prejudice [that] resulted from the recission of the oral order of dismissal’ given the ongoing nature of the hearing and the brief period that lapsed between the oral ruling dismissing the charges and the witness’s appearance that caused the matter to move froward with the trial,” Dugan wrote.
Judge Dugan also noted that under Wisconsin law, a circuit court has the inherent authority to reconsider its rulings during an ongoing proceeding.
“We conclude that the circuit court’s actions here were, therefore, nothing more than an exercise of its inherent authority to reconsider its own rulings and its subject matter jurisdiction over Davis’s case did not expire,” Dugan wrote.
Ineffective Assistance Claim Fails
Given that the circuit court retained subject matter jurisdiction in case No. 2019CF4824 over Davis despite the oral dismissal, Judge Dugan reasoned, Davis’s claims regarding ineffective assistance of counsel and his right to withdraw his plea in case No. 2020AP774 must fail.
“Trial counsel cannot be considered ineffective for failing to raise a meritless claim,” Dugan wrote.
Evidence Was for Jury to Weigh
Davis also argued there was insufficient evidence from which a jury could have concluded that he intended to permanently deprive Alicia of possession of her phone.
But Judge Dugan concluded that credibility of the witnesses and the weight of the evidence was for the jury to decide.
“This court will not substitute our judgment here for that of the jury because the evidence, viewed most favorable to the State and the conviction, is not so lacking in probative value and force that no trier of fact, acting reasonably, could have found guilty beyond a reasonable doubt,” Dugan wrote.