State v. Picotte

2003 WI 42, 261 Wis. 2d 249, 661 N.W.2d 381



It is deemed the doctrine of the cases that when a court of last resort intentionally takes up, discusses, and decides a question germane to, though not necessarily decisive of, the controversy, such decision is not a dictum but is a judicial act of the court which it will thereafter recognize as a binding decision.


More than two years after defendant got in a bar fight, his opponent died from injuries sustained in the fight.The circuit court entered judgment convicting defendant of first-degree reckless homicide and subsequently denied his motions for postconviction relief. In his motions for postconviction relief and an appeal, defendant claimed that his conviction of first-degree reckless homicide was barred, as it violated the common law year-and-a-day rule. The Court of Appeals (Wisconsin) affirmed defendant's conviction then certified the case pursuant to Wis. Stat. § 809.61 (1999-2000) for review as to issues relating to the year-and-a-day rule.


Does the court have the authority to abrogate the year-and-a-day rule law in Wisconsin?




The court held that defendant's conviction was barred by the common-law year-and-a-day rule, but abrogated the rule for all killings that occurred after the date of the decision, as advanced medical technology and the allowance of expert witnesses to aid juries made the rule unnecessary. The rule had been preserved through Wis. Const. art. XIV, § 13, and the enactment of Wis. Stat. § 939.74(2) (1999-2000) did not abrogate the common law rule. The court held that the judicial powers vested in it under Wis. Const. art. VII, § 2 gave it the authority to abrogate common law rules. Although it abrogated the rule, the court held that such edict was not to apply retroactively to defendant's conduct, noting that creating new criminal liability for past acts would have undermined stability in the law, tarnished the image of justice, and appeared unfair. The court reversed the judgment and order of the circuit court and remanded the cause to the circuit court to dismiss the criminal complaint.

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