Town of Madison v. Randall E. Gartland

No. 01-0203

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

Town of Madison,

Plaintiff-Respondent,

Randall E. Gartland,

Defendant-Appellant.

APPEAL from a judgment of the circuit court for Dane County: stuart a. schwartz, Judge. Affirmed.

¶1 ROGGENSACK, J.[1] Randall E. Gartland appeals a circuit court judgment convicting him of speeding. He argues that the circuit court erred in failing to dismiss the charge against him because the prosecutor failed to comply with a court order requiring him to give Gartland a copy of the transcript of his municipal court hearing. Because we conclude that the circuit court’s finding that the prosecutor complied with the terms of the court order is not clearly erroneous, we affirm the judgment of the circuit court.

BACKGROUND

¶2 On August 29, 1999, a Town of Madison police officer cited Gartland for speeding. Gartland was found guilty in a trial to the Town of Madison municipal court on March 20, 2000. No court reporter was present, but the proceedings were taped in accordance with the Town’s policy.

¶3 Gartland requested a trial de novo in Dane County Circuit Court. He received a copy of the tape of the municipal court proceedings on August 11, 2000. At a hearing before the circuit court three days later, Gartland claimed that the tape was inaudible, although he never attempted to play it during the hearing. Gartland later admitted that he had never taken the tape to a court reporter and that nobody had told him that the tape could not be used to prepare a transcript. The Town later had a transcript prepared by a court reporter using this tape.

¶4 Based solely upon Gartland’s representation that the tape was inaudible, the prosecutor agreed to provide him with a copy of the transcript of the municipal court trial. Based on this offer, the court ordered that Gartland be provided a copy of the transcript within sixty days of the August 14 hearing. On September 8, 2000, the prosecutor wrote to Gartland to inform him that the transcript was available and how much it would cost. Gartland never replied; instead, he moved to dismiss on October 20, claiming that he had never received the transcript. The court denied his motion on November 2 and again ordered the prosecutor to provide Gartland with a copy of the transcript.

¶5 When Gartland appeared for his jury trial on December 6, he again moved to dismiss, claiming that he had not received the transcript. After listening to argument, the circuit court denied Gartland’s motion, reasoning:

At this time, I would be inclined to grant your motion, Mr. Gartland, if [the prosecutor] had not complied with the Order of the Court. On November 1st, I did specifically indicate that the Town was to provide you with a written transcript at no cost. [The prosecutor] has provided me with a letter indicating that it was mailed to you.

Now, I’m not saying that you’re fabricating here, so don’t misunderstand me, but the cover letter indicates that the documents were filed. They were sent to your address. It may be that the post office didn’t deliver it. Whether there was sufficient postage or whatever, I’d be speculating. I don’t know.

But I asked [the prosecutor] to provide you with this information. He did so. You have a tape here of this case, as well, but I think what’s most important for everybody to be aware of is that this is a trial de novo. This is not based on the information that was at the municipal court level. You’re having a new trial now, so all the evidence which will come in today is what the jury and I will be making our determinations on.

I haven’t seen any transcript from the prior case. Nothing was provided to this Court. The jury hasn’t seen any testimony from any prior case. And so there’s really no prejudice to you in that regard, Mr. Gartland, and if there is any, I would find such harm or such error to be harmless.

The jury convicted Gartland of speeding, and he appeals.

DISCUSSION

Standard of Review.

¶6 Whether to dismiss an action for failure to comply with a court order is a discretionary decision of the circuit court. Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 273, 470 N.W.2d 859, 863 (1991). We will sustain the circuit court’s discretionary decision if the court examined the relevant facts, applied a proper legal standard and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach. Ansani v. Cascade Mountain, Inc., 223 Wis. 2d 39, 45-46, 588 N.W.2d 321, 324 (Ct. App. 1998). A circuit court’s finding of fact will not be reversed unless it is clearly erroneous. State v. Hereford, 224 Wis. 2d 605, 612, 592 N.W.2d 247, 250 (Ct. App. 1999); Wis. Stat. § 805.17(2).

Transcript.

¶7 The municipal court is required by statute to record its proceedings. Wisconsin Stat. § 800.13 provides:

Recording in municipal court. (1) Every proceeding in which testimony is taken under oath in a municipal court shall be recorded by electronic means for purposes of appeal.

(2) Notwithstanding sub. (1), a municipal court is not a court of record.

If a party wishes to appeal a municipal court decision to the circuit court based solely on a review of the transcript, the municipal court is required to prepare a transcript for the party at a nominal cost. Wis. Stat. §§ 800.14(5) and 814.65(5). However, the municipal court is not required to prepare a transcript if the party requests a de novo trial in the circuit court. Wis. Stat. § 800.14(4).[2]

¶8 Gartland does not dispute that he requested a trial de novo or that the municipal court proceedings were recorded. Instead, he appears to challenge the circuit court’s factual finding that the prosecutor complied with the terms of the order requiring him to send Gartland a copy of the transcript.

¶9 At the December 6 motion hearing, the prosecutor informed the court that he had sent a cover letter and copy of the transcript to Gartland’s mailing address on November 2 and provided the court with a copy of the cover letter. Gartland admitted that the address on the cover letter was his mailing address, but he denied receiving a copy of the transcript. The circuit court found that the prosecutor had provided Gartland with a copy of the transcript and therefore denied Gartland’s motion to dismiss. Based on the prosecutor’s statements, we conclude that a sufficient factual basis existed to support the circuit court’s finding. Because the circuit court found that the prosecutor complied with the terms of the court order, we conclude that it did not err in denying Gartland’s motion to dismiss. Therefore, we affirm the judgment of the circuit court.

CONCLUSION

¶10 Because we conclude that the circuit court’s finding that the prosecutor complied with the terms of the court order is not clearly erroneous, we affirm the judgment of the circuit court.

By the Court.—Judgment affirmed.

This opinion will not be published. Wis. Stat. Rule 809.23(1)(b)4.

[1] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(c) (1999-2000). Additionally, all further references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.

[2] In his reply brief, Gartland argues that that his rights to due process and equal protection were violated because Wis. Stat. § 800.14 requires the municipal court to prepare a transcript for one type of appeal but not for another. He has cited no authority to support this argument. We do not consider undeveloped arguments. Truttschel v. Martin, 208 Wis. 2d 361, 369, 560 N.W.2d 315, 319 (Ct. App. 1997).