June 27, 2011 – The District III Wisconsin Court of Appeals recently held that a defendant cannot be prosecuted for attempted first-degree intentional homicide if the six-year statute of limitations period for felonies has expired.

In 2008, the state charged Rodney Larson with attempted first-degree intentional homicide after a DNA analysis linked him to a 1994 attack on a convenience store clerk in Brown County. Larson moved to dismiss, arguing that a statute of limitations applied to bar prosecution after six years.

The circuit court denied the motion. Larson was eventually convicted and sentenced to 15 years in prison. But in State v. Larson, 2010AP1666-CR (June 21, 2011), the appeals court reversed.

Under Wis. Stat. section 939.74(1), prosecution of a felony must commence within six years of commission of the crime. But section 939.74(2) states that prosecutions under sections 940.01 (first-degree intentional homicide), 940.02 (first-degree reckless homicide), or 940.03 (felony murder) may be commence at any time.

The state argued that “attempt” crimes operate in conjunction with the underlying crime (here, first-degree intentional homicide). Attempted first-degree intentional homicide is a “prosecution under s. 940.01,” the state argued, meaning the six-year statute of limitations did not apply.

However, the appeals court rejected the state’s argument, concluding that “a prosecution for attempted first-degree intentional homicide must be commenced within six years.”

Looking to legislative history, the appeals court (opinion by Judge Gregory Peterson) stated, “If the legislature views first-degree intentional homicide as more serious than attempted first-degree intentional homicide for sentencing purposes, it is logical to conclude the legislature also views the completed offense as more serious for statute of limitations purposes.”