STATE v. WATSON (1997)

Supreme Court of Wisconsin.

STATE of Wisconsin, Petitioner-Appellant, v. John J. WATSON, Respondent-Respondent.

No. 95-1067.

Decided: May 02, 1997

For the petitioner-appellant the cause was argued by Mary E. Burke, Assistant Attorney General, with whom on the briefs was Sally L. Wellman, Assistant Attorney General and James E. Doyle, Attorney General. For the respondent-respondent there was a brief and oral argument by Richard D. Martin, State Public Defender.

The court is equally divided whether to affirm or reverse the order of the circuit court. Chief Justice Shirley S. Abrahamson, Justice William A. Bablitch and Justice Ann Walsh Bradley would affirm. Justice Jon P. Wilcox, Justice Janine P. Geske and Justice N. Patrick Crooks would reverse. Justice Donald W. Steinmetz did not participate.

¶ 2 When a certification or bypass results in a tie vote by this court, the better course of action is to vacate our decision to accept certification or bypass and remand the cause to the court of appeals. State v. Richard Knutson, Inc., 191 Wis.2d 395, 396-97, 528 N.W.2d 430 (1995) (remanding to court of appeals on a tie vote on certification); State v. Elam, 195 Wis.2d 683, 684-85, 538 N.W.2d 249 (1995) (restating rule; declining to remand to court of appeals on a tie vote on bypass because court of appeals had previously decided issue).

¶¶ 3 Accordingly, we vacate our order granting certification and remand to the court of appeal.

¶ 1 PER CURIAM.

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