State v. Seth K. Pinter

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 16, 2026
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2025AP1074-CR Cir. Ct. No. 2023CF253

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-APPELLANT,

V.

SETH K. PINTER,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Lincoln County:
ROBERT R. RUSSELL, Judge. Order reversed and cause remanded with
directions.

Before Stark, P.J., Hruz, and Gill, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2025AP1074-CR

¶1 PER CURIAM. The State appeals from a circuit court order
dismissing criminal charges against Seth Pinter without prejudice. For the reasons
explained below, we conclude that Pinter’s constitutional right to a speedy trial
was not violated, and we reject Pinter’s arguments that we may affirm the court’s
order on other grounds and remand for the dismissal of the charges with prejudice.
We reverse and remand with directions for the court to reinstate the criminal
proceedings against Pinter.

BACKGROUND

¶2 The State charged Pinter on August 8, 2023, with one count of
second-degree sexual assault based on allegations that Pinter assaulted the victim
on August 6, 2023.1 A sexual assault nurse examiner (SANE) completed a
forensic exam of the victim on August 6, but the SANE exam kit was not
immediately sent to the Wisconsin State Crime Laboratory for testing.

¶3 Pinter was released from custody on August 8 or 9, 2023, after
posting a cash bail, and he remained released on the charges in this case
throughout the proceedings. At his initial appearance, Pinter waived the time
limits for holding a preliminary hearing. Shortly thereafter, the circuit court
scheduled Pinter’s preliminary hearing—which Pinter ultimately waived—for
November 20, 2023. Following the waiver, the State filed an information, which
amended the second-degree sexual assault count to third-degree sexual assault and
added one count of fourth-degree sexual assault.

1
The State alleged that Pinter had sexually assaulted the same victim twice that day but
that the first assault occurred in Oneida County.

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No. 2025AP1074-CR

¶4 Between November 2023 and March 2024, the circuit court and the
parties held multiple scheduling conferences, and Pinter and the State filed
discovery demands. On March 4, 2024, Pinter filed a motion in limine based on
spousal privilege and a motion to suppress statements he had made to law
enforcement. The court held a nonevidentiary motion hearing on June 10, 2024, at
which the parties reached a consensus on the motion in limine. The court ordered
briefing on Pinter’s motion to suppress and scheduled a decision hearing for
October 2, 2024.

¶5 In addition, at the June 10, 2024 hearing, the State informed the
circuit court that it was “still waiting to hear from the lab on evidence so we’re not
ready to set trial yet for that reason.” The State would later claim in its objections
to Pinter’s motion to dismiss that around the time of June 6, 2024, it discovered
that the Lincoln County Sheriff’s Office had failed to send the SANE exam kit to
the crime lab for testing. Either later that month or in July 2024, the sheriff’s
office forwarded the SANE exam kit to the crime lab.

¶6 The circuit court granted Pinter’s motion to suppress at the
October 2, 2024 decision hearing. In addition, following the court’s ruling, the
parties discussed scheduling, and the court suggested another scheduling hearing
for November 7, 2024. In response, defense counsel stated, “[O]ne of my
concerns here is that DNA was collected and we don’t have results and the case is
a year-and-a-half old.” Defense counsel requested that the court set a trial date
based on counsel’s belief that the crime lab would not begin testing the evidence
until such a date was set. In turn, the State clarified that the court did not need to
set a trial date for the crime lab to commence testing in sexual assault cases, and it
explained that the SANE exam kit was sent to the lab “maybe 3 months ago.” The
State suggested setting the case for scheduling “in about 60 days and then

3
No. 2025AP1074-CR

hopefully at least by then we will have some idea of how long it will take for the
test results.” Defense counsel stated, “I think we are at the mercy of the crime lab
at the moment, so.” The court set a scheduling conference for December 5, 2024.

¶7 On December 5, 2024, the State requested another scheduling
conference, as the DNA results from the SANE exam kit had not yet been returned
by the crime lab. The circuit court set another scheduling conference for February
13, 2025.

¶8 On February 12, 2025, Pinter filed a motion to dismiss the pending
criminal action against him. Pinter argued that the State’s “undue delay” violated
his state and federal constitutional rights to a speedy trial. Pinter noted that the
charges against him were filed in August 2023, yet he had not been provided with
the DNA results and a trial date had not been set. Although Pinter referenced WIS.
STAT. § 971.10 (2023-24)2 in his motion, he acknowledged that he had not made a
speedy trial demand pursuant to that statute, and his speedy trial argument
centered on the factors from Barker v. Wingo, 407 U.S. 514 (1972).3

¶9 The State filed a written response objecting to Pinter’s motion to
dismiss. In the response, the State explained that the sheriff’s office had received
the DNA results from the crime lab on January 7, 2025; the State had received the
DNA results on or around March 19, 2025; and the State had mailed the DNA
results to the defense on March 25, 2025.

2
All references to the Wisconsin Statutes are to the 2023-24 version.
3
However, in response to the State’s objection to his motion to dismiss, Pinter argued
that he did request a trial date at the October 2, 2024 hearing and that WIS. STAT. § 971.10 “does
not require” the use of the magic words “speedy trial.”

4
No. 2025AP1074-CR

¶10 The State further explained why the testing of the SANE exam kit
was delayed, stating, “After the SANE exam was conducted, the Victim made
statements about not wanting to pursue charges. The Deputy took this as not
wanting the evidence tested.” According to the State, the deputy completed a
standard form following an interview with the victim, and the deputy indicated on
that form that the victim did not want the SANE exam kit tested. The State
claimed that when the form “was sent in, the crime lab received that form and did
not test the results because of how that was checked.” The State further alleged
that “[f]or that reason, the SANE exam [kit] was labeled to save for records, but
not tested,” despite the Lincoln County District Attorney’s Office’s “belief that it
was being tested.” Further, the district attorney informed the circuit court that “it
was my assumption … if we charge someone and the results are sent in that they
are tested and so it wasn’t and so we had to update the form and then it got tested
and we have the results at this point.” Additionally, the State asserted that at the
time it charged Pinter, the crime lab “was taking about 12 months for DNA
results.”

¶11 The State also filed a motion to amend the information based on the
crime lab’s findings. Specifically, the State sought to amend the information to
charge two counts of second-degree sexual assault by force, two counts of
second-degree sexual assault with someone incapable of giving consent, and two
counts of false imprisonment.

¶12 In reply to the State’s objection to his motion to dismiss, Pinter
reasoned that the State’s argument that it did not submit the SANE exam kit to the
crime lab due to the victim’s statements was “illogical” because “[i]t’s not a
complaining witness … who decides whether or not to pursue charges, that’s up to
the State.” Pinter further argued that the State’s argument was illogical because

5
No. 2025AP1074-CR

law enforcement arrested Pinter, and the State filed charges, almost immediately
following the victim’s allegations. Therefore, according to Pinter, “there was no
delay in are we going to file charges or aren’t we, they were filing charges.”

¶13 Pinter also disputed the State’s assertion that the crime lab had
possession of the SANE exam kit at the start of the investigation. Pinter argued
that he had received discovery from the State demonstrating that the crime lab did
not receive the SANE exam kit until June 27, 2024.4

¶14 In addition, Pinter asserted that the State’s delay in sending the
SANE exam kit to the crime lab only compounded the overall delay if, as the State
suggested, the crime lab was taking approximately twelve months to return DNA
results. He further argued that, ultimately, the crime lab returned the DNA results
to the State approximately six months after the State actually forwarded the SANE
exam kit to the lab. Therefore, according to Pinter, had the State forwarded the
SANE exam kit to the crime lab “in a timely fashion, all of this would have been
available and we likely would have been proceeding to trial or proceeding to some
other result.”

¶15 The circuit court held a nonevidentiary hearing on Pinter’s motion to
dismiss on April 2, 2025. After oral arguments, the court made its findings of fact
and conclusions of law. The court first determined that Pinter had not made a
speedy trial demand. The court next expressed frustration with the crime lab’s

4
Pinter further argued that discovery from the State demonstrated that the crime lab did
not receive “the buccal swab standards of Mr. Pinter” until July 10, 2024. There is little mention
of a buccal swab in the record, and the parties do not mention a buccal swab on appeal.
Ostensibly, the crime lab used the buccal swab to compare the SANE exam kit with Pinter’s
DNA. In any event, it appears undisputed that the buccal swab and the SANE exam kit were
received by the crime lab within two weeks of each other.

6
No. 2025AP1074-CR

general congestion and turnaround time, the State’s “miss-steps” in handling the
SANE exam kit, the State’s motion to amend the information, and the fact that
“we’re months from getting a trial date.”

¶16 Ultimately, the circuit court granted Pinter’s motion to dismiss. Its
decision rested largely on the presumptive prejudice afforded to Pinter based on
the overall delay having exceeded one year. The court stated that some of the
delays “were court-related too, and you have pointed that out, things happen, but
the bottom line is once you get to one year on a case like this, … there is
presumptive prejudice that has occurred.” The court noted Pinter’s anxiety from
facing the charges, and it concluded that the State had failed to rebut this
“subjective prejudice because [it] would have a very hard time to prove that”
Pinter was not affected by the pending charges.

¶17 The circuit court dismissed the charges without prejudice after
noting that Pinter had not specifically asked for dismissal with prejudice and that,
regardless, the prejudice did “not rise to the level where dismissal should be with
prejudice.” The State now appeals.

DISCUSSION

I. Constitutional speedy trial claim

¶18 The parties appear to agree that Pinter asserted a constitutional
speedy trial claim before the circuit court, not a statutory speedy trial claim, and
that the court applied the Barker factors. However, as the State correctly notes,
the only remedy available for a violation of a defendant’s constitutional right to a
speedy trial is dismissal with prejudice, not the dismissal without prejudice
ordered by the court. See State v. Ramirez, 2025 WI 28, ¶55, 416 Wis. 2d 641, 22

7
No. 2025AP1074-CR

N.W.3d 821. Therefore, it is clear that the circuit court erred by dismissing the
charges against Pinter on constitutional speedy trial grounds without prejudice.5

¶19 Despite the circuit court’s error, Pinter contends that we should
affirm the court’s order—in so far as this court agreeing, after applying the Barker
factors, that his constitutional right to a speedy trial was violated—and that we
should remand for dismissal of the charges with prejudice.6 For its part, the State
argues that we should reverse the circuit court’s order and remand with directions
for the court to reinstate the charges because Pinter’s constitutional right to a
speedy trial was not violated.

¶20 Whether Pinter’s constitutional right to a speedy trial was violated is
a question of law we review de novo. See Ramirez, 416 Wis. 2d 641, ¶29. “We
uphold the circuit court’s factual and credibility findings unless they are clearly
erroneous.” Id.

¶21 To determine whether a defendant’s constitutional right to a speedy
trial was violated, we apply the four-factor balancing test pronounced in Barker.
Ramirez, 416 Wis. 2d 641, ¶30. These factors include: (1) the overall length of
the delay, (2) the reason for the delay, (3) the defendant’s assertion of the speedy
trial right, and (4) prejudice to the defendant. Id.

5
Even if the circuit court had dismissed the charges on statutory speedy trial grounds,
which neither party argues, dismissal without prejudice still would have been in error because the
remedy for a statutory speedy trial violation is the defendant’s discharge from custody. See WIS.
STAT. § 971.10(4).
6
In the alternative, Pinter asserts that the State’s “failure to prosecute this case is a legal
or discretionary basis for the circuit court to dismiss this case” under WIS. STAT. § 805.03, and he
argues that this court should “find that … dismissal” is “with prejudice.” (Formatting altered.)
We address this argument in Section II of this opinion. See infra ¶¶45-48.

8
No. 2025AP1074-CR

A. Length of the delay

¶22 As to the first Barker factor—the length of the delay—the State filed
the complaint on August 8, 2023, and the circuit court granted Pinter’s motion to
dismiss on April 2, 2025.7 This delay of approximately 20 months is
presumptively prejudicial and triggers the remainder of the Barker analysis.
See Ramirez, 416 Wis. 2d 641, ¶31.

B. Reasons for the delay

¶23 The second Barker factor—the reasons for the delay—“examines
whether the state or the defendant is more to blame for the time that passed from
accusation” to dismissal. See Ramirez, 416 Wis. 2d 641, ¶39. “When considering
the reasons for the delay, courts first identify the reason for each particular portion
of the delay and accord different treatment to each category of reasons.” State v.
Urdahl, 2005 WI App 191, ¶26, 286 Wis. 2d 476, 704 N.W.2d 324.

¶24 Pinter argues that any period of delay after the State’s filing of the
complaint should be weighed against the State because the entire delay was
“caused by the [S]tate’s failures with regard to the DNA evidence.” However, as
the State contends, the Barker “test recognizes that trials do not happen
immediately after charging and that a reasonable amount of time is required for
both parties to conduct” pretrial obligations. Our state supreme court has
recognized this premise, stating that the “‘time required for the orderly

7
We agree with the State that the “appropriate end date” under the first factor is
“typically the first day of trial” and that “[i]t is not clear what the appropriate end date is when the
circuit court grants a pretrial motion to dismiss” based on speedy trial grounds. Consistent with
the parties’ arguments on appeal, we assume without deciding that the appropriate end date under
the facts of this case is the date the circuit court granted Pinter’s motion to dismiss.

9
No. 2025AP1074-CR

administration of criminal justice’ is not to be considered a ‘delay’ at all.”
Ramirez, 416 Wis. 2d 641, ¶39 (citation omitted). “This includes the time that
elapses due to pretrial requirements, such as filing the complaint; conducting the
initial appearance, preliminary hearing, and arraignment; setting the trial date; and
hearing pretrial motions, so long as they occur ‘expeditiously without delay.’” Id.
(citation omitted).

¶25 Here, the period from August 8, 2023 (when the State filed the
complaint), to October 2, 2024 (when the circuit court granted Pinter’s motion to
suppress), is not properly characterized as a “delay” at all. During this nearly
14-month-long period, the circuit court held an initial appearance and set bond;
Pinter waived the preliminary hearing time limits and waived a preliminary
hearing; the court bound Pinter over for trial and the State filed an information; the
parties each made discovery demands; Pinter filed his motion in limine and his
motion to suppress; the parties briefed the motion to suppress; the court held oral
argument on the motion to suppress; and the court issued a decision on the motion
to suppress. Accordingly, this period comprised the time required for the orderly
administration of criminal justice. See id. Moreover, there is no evidence in the
record to suggest that these pretrial matters did not occur “expeditiously without
delay.” See id. (citation omitted). In sum, a trial would not have commenced until
after October 2, 2024, even if the State had immediately forwarded the SANE
exam kit to the crime lab, and we do not weigh the first 14 months of the
proceedings against the State, much less the entire 20 months from the filing of the
complaint to dismissal.

10
No. 2025AP1074-CR

¶26 The period from October 2, 2024, to April 2, 2025,8 when the circuit
court granted Pinter’s motion to dismiss, does, however, constitute a “delay” and
does weigh against the State. The State concedes that this

delay fell on the State because the Sheriff’s Office did not
send the [SANE exam kit] for testing until June 2024, ten
months after the complaint was filed.… The DNA results
should have been in both parties’ hands as of October 2024,
which would have enabled the circuit court at that point to
set a trial date presumably at some point between October
2024 and when Pinter filed his motion to dismiss in
February 2025.

¶27 The necessary question then becomes to what degree we weigh this
delay against the State—i.e., whether the delay attributed to the State was caused
by its own negligence or whether it was caused by its deliberate or bad-faith
conduct. See id., ¶41. Delays caused by “the State’s negligence” are weighed
against the State, “but not heavily,” and delays “caused by deliberate or bad-faith
conduct are weighed heavily against the State.” Id.

¶28 The State asserts that the reason for the delay was a
miscommunication between the district attorney’s office and the sheriff’s office
regarding whether the SANE exam kit had been sent to the crime lab. According
to the State, its “missteps in not sending the SANE [exam] kit for testing earlier
and its poor communication on that point were certainly negligent, but there is no

8
The State argues that the 50-day period between Pinter’s filing of the motion to dismiss
and the circuit court’s decision granting that motion should not be attributed to the State because
it was time necessary for the orderly administration of justice. Because this distinction would not
affect our ultimate conclusion that Pinter’s constitutional right to a speedy trial was not violated,
we assume without deciding that the entire period from October 2, 2024, to April 2, 2025, is
attributed to the State.

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No. 2025AP1074-CR

evidence or suggestion that it was deliberately or maliciously delaying
proceedings.” (Footnote omitted.)

¶29 Conversely, Pinter argues that the delay should “weigh heavily
against” the State because the State hid from the circuit court at the June 10, 2024
hearing the fact that it had not sent the SANE exam kit to the crime lab “when the
truth was, [the State] had only just (or were about to) submitted the kit to the lab”;
the State argued against setting a trial date at the October 2, 2024 hearing after
discovering that it had not sent the SANE exam kit to the lab; the State failed to
apprise the court and the defense of the status of the SANE exam kit “until well
after the defense move[d] to dismiss”; and the State maintained the position that
the district attorney’s office did not receive the DNA results from the lab until
March 19, 2025, “even though the [sheriff’s office] had the results since January 7,
2025.”

¶30 As explained above, the circuit court characterized the State’s
actions with respect to the SANE exam kit as “miss-steps” (i.e., that the State
made a mistake, not that it made a deliberate choice to delay trial). The court did
not find that the State acted deliberately or in bad faith to delay a trial in order to
hamper Pinter’s defense. See Barker, 407 U.S. at 531 (“A deliberate attempt to
delay the trial in order to hamper the defense should be weighted heavily against
the government.”). The record supports the circuit court’s finding. See State v.
Provost, 2020 WI App 21, ¶¶29, 44, 392 Wis. 2d 262, 944 N.W.2d 23 (applying
the clearly erroneous standard of review to a circuit court’s findings regarding the
reason for a delay).

¶31 To begin, the record reasonably demonstrates that the State did not
discover that it had failed to send the SANE exam kit to the crime lab until around

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No. 2025AP1074-CR

June 6, 2024. This error was caused by a clerical mistake on the part of a deputy,
not a deliberate or bad-faith action to delay a trial in order to hamper Pinter’s
defense. The State informed the circuit court that prior to its discovery of the
error, it believed that the SANE exam kit was being tested.

¶32 Once the State discovered the error in June 2024, the record
reasonably reflects that it did not deliberately delay a trial in order to hamper
Pinter’s defense. After the State discovered the error, the sheriff’s office
forwarded the SANE exam kit to the crime lab either later that month or in July
2024, and the lab received the SANE exam kit shortly thereafter. After
completing the testing, the crime lab sent the DNA results to the sheriff’s office,
which received the DNA results on January 7, 2025, and the State received the
DNA results from the sheriff’s office on or around March 19, 2025.9 The State
then provided the DNA results to the defense by March 25, 2025.

¶33 Furthermore, the record reasonably demonstrates that the State did
not deliberately delay a trial in order to hamper Pinter’s defense by failing to
inform the circuit court or the defense of its error. At the October 2, 2024 hearing,
the State informed the circuit court and the defense that it had sent the SANE
exam kit to the crime lab “maybe 3 months ago.”10 Therefore, both the court and

9
Pinter cites no factual evidence from the record to support his argument that the State
received the DNA results prior to March 19, 2025. Pinter cites no authority for an argument that
the fact that the sheriff’s office received the DNA results on January 7, 2025, equates to the
district attorney’s office receiving them before March 19.
10
Pinter is correct that the State did not inform the circuit court of its error at the
June 10, 2024 hearing. The State instead told the court that it was “still waiting to hear from the
lab on evidence so we’re not ready to set trial yet for that reason.”

(continued)

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No. 2025AP1074-CR

the defense were aware as early as October 2024 that the SANE exam kit was not
immediately sent to the crime lab upon the State’s charging of Pinter. For the
reasons explained, the circuit court’s finding that the State acted negligently is
supported by the record, and we weigh the period from October 2, 2024, to
April 2, 2025, against the State, but not heavily. See Ramirez, 416 Wis. 2d 641,
¶41.

¶34 In total, there was a 20-month period between the State’s charging of
Pinter and the circuit court dismissing the charges without prejudice. At most,
there were six months of actual delay in this case, which we weigh against the
State, but not heavily. The remaining nearly 14-month period is not considered a
“delay” at all because it comprised the time required for the orderly administration
of criminal justice.

C. Assertion of speedy trial right

¶35 We next consider, under the third Barker factor, whether Pinter
asserted his right to a speedy trial and, if so, when he asserted that right.
See Ramirez, 416 Wis. 2d 641, ¶49. “Though a defendant’s failure to demand a
speedy trial will not constitute a waiver of the right, the defendant’s complete
failure or delay in demanding a speedy trial will be weighed against him.”
Hatcher v. State, 83 Wis. 2d 559, 568, 266 N.W.2d 320 (1978) (citation omitted).

The circuit court never found that the State misled or lied to the court or the defense.
Indeed, the record is unclear as to whether the State had discovered the error by the time the
hearing was held. The State repeatedly asserted before the circuit court that it had discovered
“around June 6, 2024,” that the SANE exam kit was not sent to the crime lab for testing. Based
on the State’s assertions before the court that the error was discovered “around June 6, 2024,” a
logical inference is that the error was unknown to the State at the June 10, 2024 hearing.
(Emphasis added.)

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No. 2025AP1074-CR

¶36 Pinter argues that the circuit court erred by finding that he did not
assert his right to a speedy trial prior to filing the motion to dismiss. According to
Pinter, he asserted his right at the October 2, 2024 hearing when his defense
counsel expressed “concerns” about not having received the DNA results and
requested that the court set a trial date based on counsel’s belief that the crime lab
would not begin testing the evidence until such a date was set. According to
Pinter, these statements at the October 2, 2024 hearing were sufficient to invoke
his “statutory right” to a speedy trial under WIS. STAT. § 971.10.

¶37 Neither party addresses whether we review the circuit court’s
determination that Pinter did not assert his right to a speedy trial at the October 2,
2024 hearing under the clearly erroneous standard of review or the de novo
standard. Even applying de novo review, we agree with the State that Pinter’s
claim that he asserted his right to a speedy trial at the October 2, 2024 hearing is
unreasonable because “nothing that Pinter did at or following the October hearing
was consistent with a speedy trial demand.” We adopt the State’s following
argument:

Although Pinter’s counsel expressed concern [at the
October 2, 2024 hearing] that the DNA test results were not
yet available, an expression of concern is not specific
enough to put the government on notice that the defendant
is demanding a speedy trial. Additionally, counsel’s
suggestion that setting a trial date might speed up the crime
lab’s testing cannot reasonably be interpreted to be a
statutory speedy trial demand. No one treated it as such.
An effective oral or written demand requires trial to
commence within 90 days. WIS. STAT. § 971.10(2)(a).
Had the court, the prosecutor, or counsel believed Pinter to
be making such a demand, they would have either
discussed scheduling trial within 90 days or granting the
remedy for not doing so ….

Nor is it reasonable to construe counsel’s statements as
assertions of Pinter’s constitutional speedy trial rights.
Again, neither party nor the court reacted to counsel’s

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No. 2025AP1074-CR

suggestions as such. To the contrary, they did not set a trial
date, and they agreed to set a scheduling conference for
December [2024].

¶38 In short, we conclude that Pinter did not assert his right to a speedy
trial, under either WIS. STAT. § 971.10 or the Sixth Amendment to the United
States Constitution, prior to filing his motion to dismiss in February 2025. While
Pinter did assert his right to a speedy trial in February 2025, his assertion came
555 days after the State filed charges. We conclude that given Pinter’s delay in
asserting his right and the fact that the State did not have an opportunity to bring
Pinter to trial following his assertion, this factor weighs against Pinter’s claim that
his constitutional right to a speedy trial was violated. See Ramirez, 416 Wis. 2d
641, ¶49.

D. Prejudice

¶39 Next, under the fourth Barker factor, we assess the prejudice to
Pinter as a result of the pretrial delay. See Ramirez, 416 Wis. 2d 641, ¶31. In
assessing this factor, we consider three interests: oppressive pretrial incarceration;
anxiety and concern; and the possibility the defense will be impaired. Id., ¶51.

¶40 On appeal, Pinter echoes the circuit court’s reasoning that he has
proven prejudice because the State failed to rebut the “presumption” of prejudice.
To the extent that Pinter argues, or the circuit court decided, that he was
prejudiced as a matter of law simply due to the length of the delay itself and
without reference to the other Barker factors, we conclude that this position is
inconsistent with binding precedent.

¶41 “The total length of the delay in and of itself weighs against the State
only insofar as we presume that prejudice caused by pretrial delay ‘intensifies over

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No. 2025AP1074-CR

time.’” Ramirez, 416 Wis. 2d 641, ¶34 (citation omitted). “[C]ourts generally do
not hold a defendant has been prejudiced as a matter of law until the delay reaches
five to six years.” Id., ¶53 n.8. “Even if the delay was prejudicial as a matter of
law, ‘such presumptive prejudice cannot alone carry a Sixth Amendment claim
without regard to the other Barker criteria.’” Id., ¶34 (citation omitted).

¶42 This case was pending for 20 months prior to the circuit court
granting Pinter’s motion to dismiss. At most, the State negligently extended the
pretrial period by six months, which does not, by itself, give rise to prejudice as a
matter of law. See id., ¶53 & n.8; Doggett v. United States, 505 U.S. 647, 658
(1992) (“When the Government’s negligence … causes delay six times as long as
that generally sufficient to trigger judicial review, and when the presumption of
prejudice, albeit unspecified, is neither extenuated, as by the defendant’s
acquiescence, nor persuasively rebutted, the defendant is entitled to relief.”
(footnotes omitted; citations omitted)).

¶43 Moreover, Pinter fails to develop an argument as to how any of the
three interests considered under this Barker factor were impaired. We note that
Pinter posted his cash bail and was released from custody on the charges at issue
almost immediately after the State filed the complaint. Furthermore, Pinter has
not explained how the delay impaired his defense, and the circuit court never
considered this interest in granting Pinter’s motion to dismiss. And, as the State
argues, “while Pinter likely has been anxious and concerned about the pending
charges, there is no evidence that his anxiety and concern exceeded or has gone on
significantly longer than what anyone charged with a serious felony would
experience.” To the extent that Pinter suffered any professional consequences, as
he argued in the circuit court, these consequences were the result of the State’s

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No. 2025AP1074-CR

charges against him, not from any delay negligently caused by the State. Given
the foregoing, we conclude the prejudice factor does not weigh in Pinter’s favor.

E. Balancing

¶44 On balance, we conclude that Pinter’s constitutional right to a
speedy trial was not infringed. At most, the State negligently extended the pretrial
period by six months. As explained above, the remaining 14-month pretrial period
is not accurately characterized as a “delay” at all. Given the relatively short period
of actual delay, Pinter’s failure to demonstrate—or even argue—any particularized
prejudice, and the fact that Pinter did not assert his statutory or constitutional right
to a speedy trial until he filed his motion to dismiss, the State did not violate
Pinter’s constitutional right to a speedy trial.

II. Failure to prosecute

¶45 Pinter contends that we may still affirm, in part, the circuit court’s
order because “[i]n addition to the [c]onstitutional speedy trial violation by the
[S]tate, the [S]tate’s failure to prosecute this case is a legal or discretionary basis
for the circuit court to dismiss this case.” (Formatting altered.) Pinter argues that
we should “affirm the order dismissing this case for failure of the [S]tate to
prosecute,” pursuant to WIS. STAT. § 805.03, “because the ruling is correct and
there is a factual underpinning in the record which would support the dismissal”
with prejudice on this basis. A decision under § 805.03 “to impose sanctions and
the decision of which sanctions to impose, including dismissing an action with
prejudice, are within a circuit court’s discretion.” Industrial Roofing Servs., Inc.
v. Marquardt, 2007 WI 19, ¶41, 299 Wis. 2d 81, 726 N.W.2d 898.

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No. 2025AP1074-CR

¶46 Here, as the State argues, the potential applicability of WIS. STAT.
§ 805.03 to the facts of this case is not properly before us because “Pinter never
moved for a remedy under that statute.” While a respondent may advance for the
first time on appeal any argument that will sustain a circuit court’s ruling, if we
were to adopt Pinter’s position with respect to § 805.03, we would not be
sustaining the court’s decision; rather, we would be affirming the circuit court’s
order in part and reversing it in part because the court dismissed the charges
without prejudice. See State v. Holt, 128 Wis. 2d 110, 124-25, 382 N.W.2d 679
(Ct. App. 1985), superseded by statute on other grounds, WIS. STAT. § 940.225(7)
(explaining that as a matter of judicial efficiency, a respondent may advance for
the first time on appeal any argument that would sustain the circuit court’s ruling).

¶47 Moreover, the circuit court did not address whether dismissal was
warranted under WIS. STAT. § 805.03 or otherwise make a discretionary ruling on
that issue that this court can review. See Industrial Roofing Servs., Inc., 299
Wis. 2d 81, ¶41 (“A discretionary decision will be sustained if the circuit court has
examined the relevant facts, applied a proper standard of law, and, using a
demonstrated rational process, reached a conclusion that a reasonable judge could
reach.” (citation omitted)); cf. Mueller v. Mizia, 33 Wis. 2d 311, 318, 147 N.W.2d
269 (1967) (“Whether the ground assigned by the trial judge … is correct is
immaterial if, in fact, the ruling is correct and the record reveals a factual
underpinning that would support the proper findings.”). This fact is fatal to
Pinter’s request that we affirm the court’s order on these grounds.

¶48 Regardless, a holding that WIS. STAT. § 805.03 authorizes a circuit
court to dismiss with prejudice a criminal complaint before trial would seemingly
contradict our state supreme court’s holding that “trial courts of this state do not
possess the power to dismiss a criminal case with prejudice prior to the attachment

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No. 2025AP1074-CR

of jeopardy except in the case of a violation of a constitutional right to a speedy
trial.” See State v. Braunsdorf, 98 Wis. 2d 569, 586, 297 N.W.2d 808 (1980);
see State v. Killian, 2023 WI 52, ¶25, 408 Wis. 2d 92, 991 N.W.2d 387
(discussing when jeopardy attaches). Accordingly, we refuse Pinter’s invitation to
“affirm the order”—on grounds not addressed by the circuit court—and reverse
with directions to dismiss the charges with prejudice.

¶49 Based on our conclusion that Pinter’s constitutional right to a speedy
trial was not violated, we reverse the circuit court’s order dismissing the criminal
proceedings against Pinter, and we remand with directions for the court to
reinstate the proceedings.

By the Court.—Order reversed and cause remanded with directions.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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