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State v. Lesavage12/9/1999
RECONSIDERATION of the decision filed December 9, 1999. Confirmed.
Donald A. Lesavage has filed a motion to reconsider our decision of December 9, 1999. Wisconsin Stat. Rule 809.24 (1997-98) provides that " motion for reconsideration is not permitted." Nonetheless, we will reconsider our opinion on our own motion. See Rule 809.24.
. Lesavage's motion addresses two issues. He asserts that the trial court erred by failing to dismiss the case when the district attorney was unprepared to proceed at the hearing on Lesavage's motion to suppress evidence. He also asserts that, for a variety of reasons, the officer who arrested him did not have reason to do so. We confirm our decision of December 9, 1999.
. We explained in our previous opinion that Lesavage had not been unfairly prejudiced by the trial court's decision to grant the State's request for a continuance. Lesavage asserts that it cost him an additional $1,000 in legal fees for his attorney to attend the adjourned motion hearing. This is unfortunate, but all continuances raise the cost of litigation and continuances are a part of our legal landscape. Substantial attorney fees are not unique to Lesavage. It is a fact of litigation that continuances are sometimes requested and sometimes granted. It is another fact that legal representation is expensive and out of the reach of many people. Yet, it is within a trial court's discretion to grant a motion for a continuance. See State v. Anastas, 107 Wis. 2d 270, 272, 320 N.W.2d 15 (Ct. App. 1982). The fact that Lesavage had to pay an additional $1,000 because the district attorney was unable to proceed is not unique to him, and is not a reason to overturn his conviction.
. Lesavage suggests a number of reasons why the trial court should not have believed the district attorney. He believes that the subpoena the district attorney claimed to have sent to the sheriff was not in the court record. But unserved subpoenas are not necessarily part of the record. If the sheriff had not yet served the subpoena, it would still have been in the hands of the sheriff. And the issue of the subpoena is a red herring. The trial judge was entitled to believe the district attorney. This is a matter of credibility and the trial judge is the ultimate arbiter of credibility. See State v. Marty, 137 Wis. 2d 352, 359, 404 N.W.2d 120 (Ct. App. 1987), overruled on other grounds by State v. Sanchez, 201 Wis. 2d 219, 548 N.W.2d 69 (1996). This means that an appellate court will not interfere with a trial judge's credibility determination, and we will not do so here.
. Second, it is incorrect that Lesavage would have saved $1,000 had the trial court dismissed the action against him. Had the trial court done so, the district attorney would merely have reissued the complaint. If Lesavage then wanted to again make a motion to suppress, his attorney would have been required to attend court to make that motion. Either way, his attorney would have been present two times, and would have billed Lesavage for both appearances. We conclude that the adjournment and resulting legal fees are not a reason to grant relief to Lesavage.
. Next, Lesavage again argues that the deputy sheriff who arrested him could not accurately determine that there was probable cause to arrest because Lesavage's actions could have been due to accident trauma and not the ingestion of alcohol. We repeat the conclusions of our December 9, 1999 opinion. However, we also note that at the motion to suppress, Lesavage relied upon our opinion in County of Jefferson v. Renz, 222 Wis. 2d 424, 588 N.W.2d 267 (Ct. App. 1998), for its discussion of the issue of probable cause in driving while intoxicated cases. Sin
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