STATE v. AGNELLO (2003)

Supreme Court of Wisconsin.

STATE of Wisconsin, Plaintiff-Respondent, v. Lucian AGNELLO, Defendant-Appellant.

No. 00-2599-CR.

Decided: May 22, 2003

For the defendant-appellant there were briefs by Jerome F. Buting and Buting & Williams, S.C., Brookfield, and oral argument by Jerome F. Buting. For the plaintiff-respondent the cause was argued by Gregory M. Weber, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

The court is equally divided on whether to affirm or reverse the judgment of the circuit court for Milwaukee County. Justice William A. Bablitch, Justice Jon P. Wilcox, and Justice N. Patrick Crooks would affirm. Chief Justice Shirley S. Abrahamson, Justice Ann Walsh Bradley, and Justice David T. Prosser would reverse. Justice Diane S. Sykes 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. Watson, 209 Wis.2d 281, 562 N.W.2d 151 (1997) (remanding to court of appeals on a tie vote on certification); State v. Richard Knutson, Inc., 191 Wis.2d 395, 396-97, 528 N.W.2d 430 (1995).

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

The Order granting certification is vacated and the cause is remanded to the court of appeals.

¶ 1 PER CURIAM.

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