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NOTICE This opinion is
subject to further editing and modification.
The final version will appear in the bound volume of the official
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No. 94-1872-CR
STATE OF WISCONSIN
: IN SUPREME COURT
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State of Wisconsin, Plaintiff-Respondent, v. Terry Akins, Defendant-Appellant. |
FILED FEB 1,
1996 Marilyn L. Graves Clerk of Supreme Court Madison, WI |
APPEAL
from an order of the Circuit Court for Brown County, William M. Atkinson,
Judge. Affirmed.
JON P. WILCOX,
J. This case is here on certification from the Wisconsin Court
of Appeals. Two issues have been
certified for our review. The first is
whether Wis. Stat. § 970.03 (1993-94)[1]
denies a defendant equal protection of the laws by employing different procedural
standards for criminal defendants charged under single or multiple count
complaints. The defendant asserts that
the statute incorporates unequal treatment in that sub. (7) allows for a bind
over on probable cause to believe the defendant committed "a felony"
in a single count complaint whereas sub. (10) requires a finding of probable
cause as to the particular felony in each count of a multiple count
complaint. We hold that single and
multiple count complaints, as prescribed under § § 970.03(7) and (10), employ
the same preliminary hearing rules and procedural treatment and therefore do
not deny a defendant equal protection of the laws. Under both subsections, the State need only establish probable
cause to believe the defendant committed a felony with respect to each
transactionally distinct count in a complaint.
The second issue we consider
is whether the prosecutor after a bind over may reallege in the information the
same crime charged in the complaint, where the court commissioner has made a
specific finding that the State failed to establish probable cause with respect
to that charge, but did establish probable cause to believe the defendant
committed another felony. We hold that
prosecutors, in properly exercising their broad charging discretion under Wis.
Stat. § 971.01(1), may file any charge in the information as long as it is
transactionally related to a count on which bind over was ordered.
FACTS AND
PROCEDURE
On January 20, 1994, the
plaintiff-respondent State of Wisconsin (State) filed a criminal complaint
charging the defendant-appellant Terry Akins (Akins) with one count of armed
burglary, as party to the crime, contrary to Wis. Stat. § § 943.10(1) and
(2)(b) and Wis. Stat. § 939.05. A
preliminary hearing in this case was conducted on February 23, 1994, before
Court Commissioner Lawrence I. Grazeley.
See Wis. Stat. § 970.03(1).[2] At the conclusion of the hearing, the court
commissioner agreed with Akins' argument that probable cause to believe that he
had entered the premises without permission had not been established. However, the commissioner did find probable
cause to believe that another felony, theft of a firearm, had been committed,
notwithstanding the alleged permissive entry.
Akins was bound over for trial on that basis. See § 970.03(7).[3] The hearing concluded with the following
exchange between defense counsel and the commissioner, which in part gives rise
to this appeal:
Ms.
Wolfe: But I would request that the
Court indicate on the record that there was not sufficient probable cause for
the specific charge of armed burglary.
The
Court: I thought I did.
Ms.
Wolfe: Okay. I just wanted it clear.
The
Court: But that's my finding. But,
again, I don't think that the findings of the commissioner are significant. The
only finding that really counts is whether I find probable cause that a felony
has been committed. And that's the finding. My view is that the evidence was
not sufficient to establish probable cause for the crime alleged, but I don't
know what significance that has. In any event the defendant is bound over for
trial.
On March 8, 1994, the State
filed an information charging Akins with armed burglary. Shortly thereafter, Akins filed a motion to
dismiss the information, claiming that realleging the armed burglary charge,
for which there was no probable cause established at the preliminary hearing,
was an abuse of prosecutorial discretion.
Two non-evidentiary hearings were held on the matter, the Honorable
William M. Atkinson, presiding. The
circuit court filed a written decision denying the motion to dismiss, dated
July 11, 1994.
The court concluded that the
prosecutor had properly exercised his broad charging discretion in filing a
charge in the information which was within the confines of, and not wholly
unrelated to, the evidence adduced at the preliminary hearing[4],
despite the commissioner's determination that no probable cause existed to file
the same charge during the hearing. The
court relied upon our decision in State v. Hooper, 101 Wis. 2d 517,
305 N.W.2d 110 (1981) to note that once the bind over decision is made, the
only issue remaining is whether the prosecutor has abused his discretion in
issuing such a charge. The circuit
court referred to language in Hooper
which established the controlling standard of review when a defendant
challenges the precise charge, not the bind over decision, in a single count
complaint:
However, where the challenge is not to the
bindover decision, but to the specific charge recited in the information (as in
this case), we hold that the trial judge's review is only as to the question of
whether the district attorney abused his discretion in issuing a charge not
within the confines of and "wholly unrelated" to the testimony
received at the preliminary examination.
Id. at 537. (Emphasis in original.) Judge Atkinson concluded that the evidence
presented at Akins' preliminary hearing supported the State's charging
decision, thereby satisfying the required standard.
Akins filed a petition for
leave to appeal from the non-final order, which was granted by the court of
appeals. The sole issue raised by Akins
before the appellate court was whether Wis. Stat. § 970.03 denied him
equal protection of the laws.[5] Pursuant to Wis. Stat. § (Rule) 809.61, the
court of appeals certified the case to this court for our review.
I. Equal Protection.
Akins challenges the
constitutionality of Wis. Stat. § 970.03 on the grounds that accused
felons facing multiple count complaints under sub. (10) are afforded greater
protection than those facing only a single count criminal complaint under sub.
(7). He contends that this procedural
difference lacks a rational basis, and therefore violates the equal protection
clauses of the United States and Wisconsin Constitutions.
The constitutionality of a
statute presents a question of law which this court considers utilizing a de
novo standard of review. State v.
McManus, 152 Wis. 2d 113, 129, 447 N.W.2d 654 (1989). "Legislative enactments are presumed
constitutional, and this court has stated that it `will sustain a statute
against attack if there is any reasonable basis for the exercise of legislative
power.'" Id. (citing State
v. Muehlenberg, 118 Wis. 2d 502, 506-07, 347 N.W.2d 914 (Ct. App.
1984)). The party bringing the
challenge must show the statute to be unconstitutional beyond a reasonable
doubt. Mulder v. Acme-Cleveland
Corp., 95 Wis. 2d 173, 187, 290 N.W.2d 276 (1980).
This court has held that the
due process and equal protection clauses of the Wisconsin constitution are the substantial
equivalents of their respective clauses in the federal constitution. Reginald D. v. State, 193
Wis. 2d 299, 307, 533 N.W.2d 181 (1995) (citing McManus, 152
Wis. 2d at 130; Funk v. Wollin Silo & Equip., Inc., 148
Wis. 2d 59, 61 n.2, 435 N.W.2d 244 (1989)). Equal protection does not deny a state the power to treat persons
within its jurisdiction differently; rather, the state retains broad discretion
to create classifications so long as the classifications have a reasonable
basis. Graham v. Richardson, 403
U.S. 365, 371 (1971). In State ex
rel. Watts v. Combined Comm. Services, 122 Wis. 2d 65, 362 N.W.2d 104
(1985), this court stated that "[t]he fundamental determination to be made
when considering a challenge based upon equal protection is whether there is an
arbitrary discrimination in the statute or its application, and thus whether
there is a rational basis which justifies a difference in rights
afforded." Id. at 77; see
also Harris v. Kelley, 70 Wis. 2d 242, 251, 234 N.W.2d 628 (1975); State
ex rel. Murphy v. Voss, 34 Wis. 2d 501, 510, 149 N.W.2d 595 (1967).
Akins argues that the
existence of divergent preliminary hearing rules and procedures for single and
multiple count complaints violates the guarantees of the Equal Protection
Clause. He relies on the recent court
of appeals decision in State v. [Scott] Williams, 186 Wis. 2d 506,
520 N.W.2d 920 (Ct. App. 1994), rev'd, State v. [Scott] Williams,
No. 93-2517-CR (S. Ct. Feb. 1, 1996), to support this position. In [Scott] Williams, the court of
appeals construed Wis. Stat. § 970.03(10)[6]
and held that when a case is commenced by the filing of a multiple count
criminal complaint, a defendant is entitled to dismissal of any count for which
the State does not establish probable cause as to the "specific
felony" alleged in the complaint. [Scott]
Williams, 186 Wis. 2d at 510.
Akins claims that this interpretation is contradictory to this court's
holding in State v. Hooper, in which Wis. Stat. § 970.03(7) was
construed to provide that when a case is commenced by the filing of a criminal
complaint alleging only a single count, a bind over may occur upon proof of
probable cause to believe "any felony" has been committed, and the
original charge may then be realleged in the subsequent information, subject
only to review for an abuse of discretion by the district attorney. Hooper, 101 Wis. 2d at 537-39.
Akins therefore argues that
the divergent procedural treatment lacks a rational basis to justify a
difference in the rights afforded to defendants charged in single as opposed to
multiple count complaints. He offers
the following example to illustrate this point: If he had been charged with
both armed burglary and theft of a firearm in the original complaint, then the
armed burglary charge would have had to be dismissed for lack of probable cause
and could not have been included in the information. However, because he was charged only with the single count of
armed burglary, the State asserts that he can be recharged with that count in
the information, despite the commissioner's finding of no probable cause. He concludes that this is exactly the type
of arbitrary and capricious distinction that the equal protection clause was
designed to prevent.
In response, the State
maintains that Akins has failed to overcome the strong presumption of
constitutionality with proof beyond a reasonable doubt that Wis. Stat.
§ 970.03 violates the equal protection clause. The State maintains that both sub. (7) and sub. (10) achieve the
same ultimate purpose, to ensure that a
defendant not be bound over for trial unless and until the State
establishes probable cause to believe he committed a felony.
The State recognizes that the prosecutor may not obtain a bind over on
only one charge and then seek to include other unrelated charges in the
information, see Richer, 174 Wis. 2d at 244-47, but asserts
that sub. (10) simply requires a showing of probable cause to believe the
defendant committed "a felony" as to each one of those factually
unrelated counts in a multi-count complaint, before the State can obtain a bind
over on each one.
A statute violates equal
protection only where it is shown beyond a reasonable doubt that the
legislature has made an irrational or arbitrary classification. See State v. Heft, 185 Wis. 2d
288, 298, 517 N.W.2d 494 (1994). Akins'
claim in this case that the legislature has abused its discretion in creating
procedural differences in the application of Wis. Stat. § 970.03(7) and
(10) is unfounded, in light of two recent decisions of this court. See State v. [John] Williams,
No. 93-2444-CR (S. Ct. Feb. 1, 1996) and [Scott] Williams.
In [John] Williams,
the issue presented to this court was whether, when bind over is denied at
preliminary hearing on one of two related felony counts in a multiple count
complaint, the district attorney may include in the subsequent information the
same charge that was dismissed or its greater-included offense. Our analysis involved an interpretation of
Wis. Stat. § 970.03 (10) which we found to be ambiguous, and required the
first sentence of the subsection to be read as follows: "`In multiple
count complaints, the court shall order dismissed any count for which it finds
there is not probable cause to believe a felony has been committed by the
defendant.' Further, this inserted
language is to be interpreted in multiple count complaints exactly as it has
been in single count complaints." [John]
Williams, op. at 15. (Emphasis in original.)
In providing a three-step
analysis to be employed at the preliminary examination, we explained the import
of this insertion in the second procedural step: "(2) In a review of transactionally related counts, after
presentation of all of the evidence at the preliminary hearing, if the
examining judge finds there is probable cause to believe that a felony was
committed, there is necessarily probable cause as to all counts that are
transactionally related and the defendant shall be bound over on all those
counts." Id. at 16. Logically, it follows that where a
transactionally distinct count is found lacking in probable cause and therefore
dismissed, it may not be recharged nor may any counts arising from that same
incident be included in a subsequent information. Id. at 12.
"This rule is completely consistent with existing practice and
precedent involving single count complaints." Id. at 13.
Recognizing the long line of
cases providing that a district attorney may include any not wholly unrelated
charge in an information, see Bailey v. State, 65 Wis. 2d 331,
341, 222 N.W.2d 871 (1974), State v. Burke, 153 Wis. 2d 445, 457, 451
N.W.2d 739 (1990), and Richer, 174 Wis. 2d at 253, this court
clarified the court of appeals mistaken interpretation that single and multiple
count complaints were to be construed in a dissimilar manner. See State v. [John] Williams,
190 Wis. 2d 1, 10, 527 N.W.2d 338 (Ct. App. 1994). Holding to the contrary, we noted that: "[i]t is not sound
law to make such a distinction thereby creating an anomalous procedure and, in
this opinion, we hope to make it clear that single and multiple count
complaints are to receive the same procedural treatment." [John] Williams, op. at 14.
In the companion case to [John]
Williams, we were again presented with a question of statutory
interpretation involving the required showing of probable cause for a bind over
under a multiple count criminal complaint.
See [Scott] Williams, op. at 1. The court of appeals had construed Wis. Stat. § 970.03(10)
to require a showing of probable cause as to the specific felony alleged in each
count of the complaint in order to obtain a bind over on that count. [Scott] Williams, 186 Wis. 2d at
508. We reversed, holding that a proper
interpretation of sub. (10) must coincide with the objective goals of the
preliminary hearing as previously construed in our decisions in both Richer
and Burke. We found that the
circuit court's conclusion that a judge must only find probable cause that
"a felony" was committed rather than the "specific felony"
alleged, both preserved and furthered the "transactionally related"
test promulgated under Richer. [Scott]
Williams, op. at 8.
We further clarified that the
language employed under Wis. Stat. § 970.03 should be read congruously
with identical wording located in other subsections within the statute, when we
stated:
If these subsections are interpreted so as to be
consistent with each other, it becomes apparent that multiple-count complaints
should be treated the same as single count complaints: the state must establish
probable cause that a felony occurred as to one count in a set of
transactionally related counts for there to be a valid bind over on that set.
[Scott] Williams, op. at
10.
This court's recent
conclusions in the Williams' cases, that single and multiple count
criminal complaints are to receive the same procedural treatment and utilize
identical preliminary examination rules, undermines the equal protection
challenge advanced by Akins in the present case. Criminal defendants, whether charged under a single or multiple
count complaint, are afforded similar protection at this initial stage in a
criminal proceeding. "[T]he
purpose of the preliminary is served once it has been established that there is
probable cause to believe the defendant has committed a felony." [John] Williams, op. at 18. Contrary to Akins' contention, there is no
disparate treatment being leveled against defendants under Wis. Stat.
§ 970.03, regardless of the type of complaint utilized by the prosecutor
to initiate criminal proceedings.
We therefore conclude that
the current statute lacks the arbitrary and capricious classification that is
required to sustain a challenge under the equal protection clauses of the
federal and state constitutions.
II. Prosecutor's Charging Discretion.
Next, we consider the
question of whether the prosecutor may reallege in the information the same
crime charged in the complaint, where the court commissioner has found no
probable cause existed, but concluded that probable cause was established that
the defendant had committed another felony.[7] Resolution of this question requires us to
interpret the relationship between Wis. Stat. § § 970.03(7) and
971.01(1). Statutory interpretation
presents a question of law which this court decides de novo without deference
to the decisions of the lower courts. Rolo
v. Goers, 174 Wis. 2d 709, 715, 497 N.W.2d 724 (1993). "The cardinal rule in all statutory
interpretation, as this court has often said, is to discern the intent of the
legislature." Id. (citing Scott
v. First State Ins. Co., 155 Wis. 2d 608, 612, 456 N.W.2d 152 (1990)).
The present case involves a
bind over on probable cause to believe that Akins committed a felony followed
by the filing of an information which contains a count which is different from
the felony for which he was bound over.
The count in the information is the same count set forth in the criminal
complaint which the court commissioner determined lacked probable cause at the
preliminary examination.
In Wittke v. State ex rel.
Smith, 80 Wis. 2d 332, 259 N.W.2d 515 (1977), this court interpreted
the language of Wis. Stat. § 970.03(7), and concluded that the preliminary
hearing judge may bind a defendant over for trial on probable cause to believe
he committed a felony even if that felony is not the same felony as charged in
the criminal complaint. Id. at
351-52. The count alleged in the
criminal complaint was dismissed when the State had failed to demonstrate
probable cause for the commission of a felony.
Id. at 337. Subsequently,
the defendant was ordered to be discharged, and the State attempted to reissue
a second complaint alleging the same count, without producing any new
evidence. Id. Recognizing the public interest in the
finality of judicial decisions, this court held that where the existence of
probable cause had been fully litigated, the State may only bring a second
complaint charging the same offense after dismissal if it has or discovers
additional evidence. Id. at 342;
see also Wis. Stat. § 970.04.
We concluded our analysis by
examining the historically broad charging discretion of the district attorney,
stating:
Once it has been determined that there is
probable cause to believe a felony has been committed by the defendant and he
is bound over for trial, the prosecutor is not bound, in preparing an
information, to the charges advanced at the preliminary examination. Rather the prosecutor may charge in the
information any crime not wholly unrelated to the transactions and facts
adduced at the preliminary examination. Bailey v. State, 65 Wis. 2d
331, 222 N.W.2d 871 (1974). The purpose of the preliminary examination has been
satisfied once a finding of probable cause has been made, and the prosecutor
may allege additional related charges in the information. Bailey v. State,
supra, 341.
Wittke, 80 Wis. 2d at
352.
Shortly thereafter, this
court, in Hooper, addressed the procedure following a bind over on
probable cause to believe the defendant had committed a felony in accord with
Wis. Stat. § 971.01(1), which provides as follows:
The district attorney shall examine all facts and
circumstances connected with any preliminary examination touching the
commission of any crime if the defendant has been bound over for trial and,
subject to s. 970.03(10), shall file an information according to the evidence
on such examination subscribing his or her name thereto.
We interpreted § 971.01(1) as providing district attorneys, in the
exercise of their quasi-judicial prosecutorial discretion, "the
responsibility of formulating a specific charge within the confines of
and not wholly unrelated to the transaction or facts considered or testified to
at the preliminary examination." Hooper,
101 Wis. 2d at 536. In holding
that the count in the information at issue was sufficiently based upon the
evidence adduced at the preliminary hearing, this court reiterated the analysis
for determining whether the prosecutor has properly exercised his broad
charging discretion:
Thus, we hold that in
ascertaining whether the prosecutor abused his discretion, this court must look
to the record of the preliminary examination to determine if the charge recited
in the information was within the confines of and not wholly unrelated to the
facts and circumstances testified to at that hearing. If the evidence adduced at the preliminary hearing supports the district
attorney's charging decision, then it follows that the charges recited in the
information are within the confines of and not wholly unrelated to the
testimony elicited at that examination.
In applying this standard, however, we remain
cognizant of the fact that a preliminary hearing is not a full evidentiary
trial and that the purpose of a preliminary examination is only to determine
whether further criminal proceedings are justified. Taylor v. State, 55
Wis. 2d 168, 172-73, 197 N.W.2d 805 (1972).
Hooper, 101 Wis. 2d at
539.[8]
Faced with a single count
criminal complaint in the present case, the court commissioner found probable
cause to believe Akins had committed a felony, thereby binding the defendant
over for trial. However, he then went
on to state that he felt there was no probable cause to support the count
charged in the complaint, armed burglary.
In doing so, we find that the commissioner exceeded his limited
authority at the preliminary hearing.
The commissioner's role at the preliminary examination, according to
Wis. Stat. § 970.03(1) was simply to determine whether probable cause
existed to believe a felony had been committed by the defendant.[9] Upon a finding of the required probable
cause, the commissioner's inquiry should have ended. See Wis. Stat. § 970.03(7). Any further discussion regarding whether the State had
established probable cause as to the precise felony charged in the single count
complaint was inappropriate and unnecessary.[10] A holding to the contrary, allowing the
commissioner to also make a "no probable cause" determination after
establishing probable cause to believe a felony was committed in a single count
complaint, would unnecessarily restrict the quasi-judicial charging discretion
of the district attorney, inconsistent with precedent of this court.[11]
The underlying purpose of the
preliminary examination has historically been to determine whether the
defendant should be subjected to criminal prosecution and further deprived of
his liberty. See State v.
Dunn, 121 Wis. 2d 389, 394-95, 359 N.W.2d 151 (1984); Thies v.
State, 178 Wis. 98, 103, 189 N.W. 539 (1922). In the present case, the evidence adduced at the preliminary
examination clearly supported the determination that probable cause existed to
believe that Akins had committed a felony, theft of a firearm. Requiring a bind over under these facts
sufficiently satisfied the purpose of the preliminary examination, namely, that
there existed a substantial basis for bringing the prosecution. See Dunn, 121 Wis. 2d at
398.
In accordance with
longstanding precedent of this court, the prosecutor's charging discretion is
not inhibited by the court commissioner's commentary regarding a lack of
probable cause as to the original count in the criminal complaint, armed
burglary. The prosecutor was able to
include any count in the information as long as it was transactionally related
to the count on which Akins was bound over.
A review of the record indicates that the basis for the armed burglary
count arose from a common nucleus of facts which were transactionally related,
and wholly within the confines of the testimony and circumstances presented at
the hearing. The prosecutor's exercise
of discretion in charging armed burglary in the information was completely
consistent with Wis. Stat. § 971.01(1),
and we therefore conclude that the circuit court's order denying the
motion to dismiss was appropriate under the law of this state.
By the Court.—The decision of the circuit court is
affirmed.
WILLIAM A. BABLITCH, J. (concurring). For
the reasons stated in the concurrence to State v. John T. Williams
(#93-2444), I concur.
I am authorized to state that
Justices Shirley S. Abrahamson and Ann Walsh Bradley join in this concurrence.
SUPREME
COURT OF WISCONSIN
Case No.: 94-1872-CR
Complete Title
of Case: State of Wisconsin,
Plaintiff-Respondent,
v.
Terry Akins,
Defendant-Appellant.
__________________________________
ON CERTIFICATION FROM THE COURT OF APPEALS
Opinion Filed: February 1, 1996
Submitted on Briefs: October
6, 1995
Oral Argument:
Source of APPEAL
COURT: Circuit
COUNTY: Brown
JUDGE: WILLIAM M. ATKINSON
JUSTICES:
Concurred: BABLITCH, J., concurs (opinion filed)
ABRAHAMSON and
BRADLEY, J.J. joins
Dissented:
Not Participating:
ATTORNEYS: For the defendant-appellant there was a
brief (in the Court of Appeals & Supreme Court) by Glenn L. Cushing,
assistant state public defender.
For the
plaintiff-respondent the cause was submitted on the brief of Daniel J.
O'Brien, assistant attorney general, with whom on the brief was James E.
Doyle, attorney general.
[2] Section
970.03(1) provides:
A preliminary examination is a hearing before a court for the purpose of determining if there is probable cause to believe a felony has been committed by the defendant.
[3] Section
970.03(7) provides:
If the court finds probable cause to believe that a felony has been committed by the defendant, it shall bind the defendant over for trial.
[4] See State v. Richer, 174 Wis. 2d 231, 496 N.W.2d 66 (1993); State v. Burke, 153 Wis. 2d 445, 451 N.W.2d 739 (1990).
[5] Akins conceded that there was nothing unconstitutional about his bind over on probable cause for theft of a firearm. He notes that after reviewing the standard as provided in Hooper, the trial court did not err in denying the defendant's motion to dismiss. The substance of his appeal rests upon the equal protection challenge.
[6] Section
970.03(10) provides:
In multiple count complaints, the court shall order dismissed any count for which it finds there is no probable cause. The facts arising out of any count ordered dismissed shall not be the basis for a count in any information filed pursuant to ch. 971. Section 970.04 shall apply to any dismissed count.
[7] This issue was not raised by Akins in the lower courts. Akins has conceded in his brief to this court that the prosecutor properly exercised his broad charging discretion in filing the information which included the same count as was charged in the complaint, even though the bind over was for another felony.
[8] However,
we reiterate our earlier statement in this opinion that where a transactionally
distinct count is found lacking in probable cause and therefore dismissed, it
may not be recharged nor may any counts arising from that same incident be
included in a subsequent information.
Consequently, no evidence introduced in the preliminary examination can
be used to support a count charged in an information unless that evidence
itself relates to a count on which the defendant has been bound over. See also [John] Williams, op.
at 12, providing a three-step analysis for preliminary examinations:
(3) Conversely, if no probable cause is found that a felony was committed in conjunction with review of counts that are transactionally related, the examining judge shall dismiss all those counts and the district attorney may not include in the information those counts or any additional counts arising from that common nucleus of facts. Id. at 17.
[9] In Burke,
this court discussed the relationship between Wis. Stat.
§ § 970.03(7) and 971.01(1) recognizing that:
Bailey holds there is no requirement in sec. 971.01(1), Stats., that there
must be direct evidence, much less sufficient evidence to support a probable
cause finding, presented at the preliminary examination for each charge in the
information. If the legislature had intended a probable cause finding for each
count in an information, sec. 971.01(1) would expressly make that requirement,
or sec. 970.03(7), Stats., would require the circuit court to state the
specific felony it believed the defendant probably committed and provide only
that felony could be charged in the information.
Burke, 153 Wis. 2d at 456.
[10] The court commissioner apparently recognized the error which had been committed upon the finding of no probable cause with respect to the charge of armed burglary when he stated: "The only finding that really counts is whether I found probable cause that a felony has been committed. And that's the finding." See also [John] Williams, op. at 18 (stating that "[e]ach of the particular felonies charged need not be proved. It is not necessary and, in fact, is inadvisable for the court to opine as to exactly what felony was probably committed.") Id.