COURT OF APPEALS DECISION DATED AND RELEASED SEPTEMBER 6, 1995 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-2569-CR-NM
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ROBERT CURTIS,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
JEFFREY A. KREMERS, Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Fine, JJ.
PER CURIAM. Counsel for Robert Curtis has filed a no
merit report pursuant to Rule
809.32, Stats. Curtis has responded to it. Upon our independent review of the record as
mandated by Anders v. California, 386 U.S. 738 (1967), we
conclude that there is no arguable merit to any issue that could be raised on
appeal.
The State charged Curtis
with two counts of second-degree sexual assault and one count of robbery—threat
of force, in a complaint filed on December 2, 1993. On December 21, 1993, the trial court
dismissed the charges because of the seventeen-day delay between Curtis' arrest
and his initial appearance. With the
court's permission, however, a new complaint was filed the same day.
At Curtis' bench trial,
the evidence included a cervical smear from the victim that contained traces of
semen. There was no evidence presented
that linked Curtis to the sample taken.
At the close of evidence, the trial court found Curtis guilty and
sentenced him to consecutive sentences totalling twenty-six years.
Counsel's no merit
report addresses whether the trial court properly allowed the State to refile the
charges against Curtis, whether the court heard sufficient evidence to find him
guilty, whether he received effective assistance of counsel, whether the trial
court erred by admitting the cervical smear into evidence, whether Curtis
waived the opportunity to have DNA testing done on the semen sample, and
whether the trial court properly conducted the sentencing hearing and properly
exercised its sentencing discretion. We
concur with counsel's analysis of these issues and his conclusion that none has
merit.
In his response, Curtis
contends that his due process and double jeopardy rights were violated when the
State refiled the charges against him.
However, the remedy for violation of the forty-eight-hour rule for a probable
cause determination, established by County of Riverside v. McLaughlin,
500 U.S. 444 (1991), is not dismissal with prejudice. State v. Golden, 185 Wis.2d 763, 769, 519 N.W.2d
659, 661 (Ct. App. 1994). Additionally,
double jeopardy does not attach before the defendant's trial begins. State v. Barthels, 174 Wis.2d
173, 182, 495 N.W.2d 341, 345 (1993).
Curtis also challenges
the State's use of the semen sample as evidence. However, even if it were error to admit that evidence, Curtis was
not prejudiced by it. It did not link
him to the crimes, but merely established that the victim had recently had
intercourse. In rendering its decision,
the trial court expressly discounted the significance of that evidence in
finding Curtis guilty.
Finally, Curtis suggests
that the court should have allowed him to offer a closing statement. The record indicates, however, that he did
not request that opportunity. Trial
counsel offered a closing statement on his behalf and Curtis acknowledges that
he received the effective assistance of counsel.
Our review of the record
discloses no other potential issues for appeal. Therefore, we affirm the judgment of conviction and relieve
Curtis' counsel of any further representation of him in this matter.
By the Court.—Judgment
affirmed.