971.37 Deferred prosecution programs; domestic abuse.
971.38 Deferred prosecution program; community service work.
971.39 Deferred prosecution program; agreements with department.
971.40 Deferred prosecution agreement; placement with volunteers in probation program.
Ch. 971 Cross-reference
Cross-reference: See definitions in s.
967.02.
971.01
971.01
Filing of the information. 971.01(1)
(1) The district attorney shall examine all facts and circumstances connected with any preliminary examination touching the commission of any crime if the defendant has been bound over for trial and, subject to
s. 970.03 (10), shall file an information according to the evidence on such examination subscribing his or her name thereto.
971.01(2)
(2) The information shall be filed with the clerk within 30 days after the completion of the preliminary examination or waiver thereof except that the district attorney may move the court wherein the information is to be filed for an order extending the period for filing such information for cause. Notice of such motion shall be given the defendant. Failure to file the information within such time shall entitle the defendant to have the action dismissed without prejudice.
971.01 History
History: 1993 a. 486.
971.01 Annotation
Action dismissed for failure to file information. State v. Woehrer, 83 W (2d) 696, 266 NW (2d) 366 (1978).
971.01 Annotation
This section does not require that information be served on defendant within 30 days. State v. May, 100 W (2d) 9, 301 NW (2d) 458 (Ct. App. 1980).
971.01 Annotation
Where challenge is not to bindover decision, but to specific charge in information, trial judge's review is limited to whether district attorney abused discretion in issuing charge. State v. Hooper, 101 W (2d) 517, 305 NW (2d) 110 (1981).
971.01 Annotation
Prosecutor may include in information charges for which no direct evidence was presented at preliminary examination, as long as additional charges are not wholly unrelated to original charge. State v. Burke, 153 W (2d) 445, 451 NW (2d) 739 (1990). See also State v. Richer, 174 W (2d) 231, 496 NW (2d) 66 (1993).
971.02
971.02
Preliminary examination; when prerequisite to an information or indictment. 971.02(1)
(1) If the defendant is charged with a felony in any complaint, including a complaint issued under
s. 968.26, or when the defendant has been returned to this state for prosecution through extradition proceedings under
ch. 976, or any indictment, no information or indictment shall be filed until the defendant has had a preliminary examination, unless the defendant waives such examination in writing or in open court or unless the defendant is a corporation or limited liability company. The omission of the preliminary examination shall not invalidate any information unless the defendant moves to dismiss prior to the entry of a plea.
971.02(2)
(2) Upon motion and for cause shown, the trial court may remand the case for a preliminary examination. "Cause" means:
971.02(2)(a)
(a) The preliminary examination was waived; and
971.02(2)(b)
(b) Defendant did not have advice of counsel prior to such waiver; and
971.02(2)(c)
(c) Defendant denies that probable cause exists to hold him or her for trial; and
971.02 History
History: 1973 c. 45;
1993 a. 112,
486.
971.02 Annotation
An objection to the sufficiency of a preliminary examination is waived if not raised prior to pleading. Wold v. State, 57 W (2d) 344, 204 NW (2d) 482.
971.02 Annotation
When defendant waived preliminary examination and wished to plead, but the information was not ready and was only orally read into the record, the defendant is not harmed by acceptance of his plea before the filing of the information. Larson v. State, 60 W (2d) 768.
971.02 Annotation
Scope of cross examination by defense was properly limited at preliminary hearing. State v. Russo, 101 W (2d) 206, 303 NW (2d) 846 (Ct. App. 1981).
971.02 Annotation
The denial of a preliminary examination to a corporation is constitutional. State v. C & S Management, Inc. 198 W (2d) 844, 544 NW (2d) 237 (Ct. App. 1995).
971.02 Annotation
See note to Art. I, sec. 7, citing Gerstein v. Pugh, 420 US 103.
971.02 Annotation
Preliminary examination potential. 58 MLR 159.
971.02 Annotation
The grand jury in Wisconsin. Coffey, Richards, 58 MLR 518.
971.03
971.03
Form of information. The information may be in the following form:
STATE OF WISCONSIN,
.... County,
In .... Court.
The State of Wisconsin
vs.
.... (Name of defendant).
I, .... district attorney for said county, hereby inform the court that on the .... day of ...., in the year 19.., at said county the defendant did (state the crime) .... contrary to section .... of the statutes.
Dated ...., 19..,
.... District Attorney
971.03 Annotation
An information charging an attempt is sufficient if it alleges the attempt plus the elements of the attempted crime. Wilson v. State, 59 W (2d) 269, 208 NW (2d) 134.
971.03 Annotation
Where the victim's name was correctly spelled in the complaint but wrong on the information, the variance was immaterial. State v. Bagnall, 61 W (2d) 297, 212 NW (2d) 122.
971.04
971.04
Defendant to be present. 971.04(1)
(1) Except as provided in
subs. (2) and
(3), the defendant shall be present:
971.04(1)(c)
(c) At all proceedings when the jury is being selected;
971.04(1)(g)
(g) At the pronouncement of judgment and the imposition of sentence;
971.04(1)(h)
(h) At any other proceeding when ordered by the court.
971.04(2)
(2) A defendant charged with a misdemeanor may authorize his or her attorney in writing to act on his or her behalf in any manner, with leave of the court, and be excused from attendance at any or all proceedings.
971.04(3)
(3) If the defendant is present at the beginning of the trial and thereafter, during the progress of the trial or before the verdict of the jury has been returned into court, voluntarily absents himself or herself from the presence of the court without leave of the court, the trial or return of verdict of the jury in the case shall not thereby be postponed or delayed, but the trial or submission of said case to the jury for verdict and the return of verdict thereon, if required, shall proceed in all respects as though the defendant were present in court at all times. A defendant need not be present at the pronouncement or entry of an order granting or denying relief under
s. 974.02 or
974.06. If the defendant is not present, the time for appeal from any order under
ss. 974.02 and
974.06 shall commence after a copy has been served upon the attorney representing the defendant, or upon the defendant if he or she appeared without counsel. Service of such an order shall be complete upon mailing. A defendant appearing without counsel shall supply the court with his or her current mailing address. If the defendant fails to supply the court with a current and accurate mailing address, failure to receive a copy of the order granting or denying relief shall not be a ground for tolling the time in which an appeal must be taken.
971.04 History
History: 1971 c. 298; Sup. Ct. Order, 130 W (2d) xix (1986);
1993 a. 486.
971.04 Annotation
Court erred in resentencing defendant without notice after imposition of previously ordered invalid sentence. State v. Upchurch, 101 W (2d) 329, 305 NW (2d) 57 (1981).
971.04 Annotation
If court is put on notice that accused has language difficulty, court must make factual determination whether interpreter is necessary; if so, accused must be made aware of right to interpreter, at public cost if accused is indigent. Waiver of right must be made voluntarily in open court on record. State v. Neave, 117 W (2d) 359, 344 NW (2d) 181 (1984).
971.04 Annotation
Sub. (2) allows entry of plea to misdemeanor by attorney without defendant being present, but for guilty or no contest plea all requirements of 971.08 except attendance must be met. State v. Krause, 161 W (2d) 919, 469 NW (2d) 241 (Ct. App. 1991).
971.04 Annotation
Sub. (1) does not encompass a postconviction evidentiary hearing. State v. Vennemann, 180 W (2d) 81, 508 NW (2d) 404 (1993).
971.04 Annotation
A defendant present at the beginning of jury selection is not "present at the beginning of the trial" under sub. (3). State v. Dwyer, 181 W (2d) 826, 512 NW (2d) 533 (Ct. App. 1994).
971.04 Annotation
A defendant's presence is required during all proceedings when the jury is being selected, including in camera voir dire. However, failure to allow the the defendant's presence may be harmless error. State v. David J.K. 190 W (2d) 726, 528 NW (2d) 434 (Ct. App. 1994).
971.04 Annotation
The beginning of the trial under sub. (3) occurs when jeopardy attaches; when the jury is sworn. State v. Miller, 197 W (2d) 518, 541 NW (2d) 153 (Ct. App. 1995).
971.04 Annotation
An accused has the right to be present at trial, but the right may be waived by misconduct or consent. A formal on-the-record waiver is favored, but not required. State v. Divanovic, 200 W (2d) 210, 546 NW (2d) 501 (Ct. App. 1996).
971.04 Annotation
A defendant may not be sentenced in absentia. Apppearance may not be waived. State v. Koopmans, 202 W (2d) 386, 550 NW (2d) 715 (Ct. App. 1996).
971.05
971.05
Arraignment. If the defendant is charged with a felony, the arraignment may be in the trial court or the court which conducted the preliminary examination or accepted the defendant's waiver of the preliminary examination. If the defendant is charged with a misdemeanor, the arraignment may be in the trial court or the court which conducted the initial appearance. The arraignment shall be conducted in the following manner:
971.05(1)
(1) The arraignment shall be in open court.
971.05(2)
(2) If the defendant appears for arraignment without counsel, the court shall advise the defendant of the defendant's right to counsel as provided in
s. 970.02.
971.05(3)
(3) The district attorney shall deliver to the defendant a copy of the information in felony cases and in all cases shall read the information or complaint to the defendant unless the defendant waives such reading. Thereupon the court shall ask for the defendant's plea.
971.05(4)
(4) The defendant then shall plead unless in accordance with
s. 971.31 the defendant has filed a motion which requires determination before the entry of a plea. The court may extend the time for the filing of such motion.
971.05 Annotation
Where through oversight, an arraignment was not held, it may be conducted after both parties had rested during the trial. Bies v. State, 53 W (2d) 322, 193 NW (2d) 46.
971.06(1)(1) A defendant charged with a criminal offense may plead as follows:
971.06(1)(c)
(c) No contest, subject to the approval of the court.
971.06(1)(d)
(d) Not guilty by reason of mental disease or defect. This plea may be joined with a plea of not guilty. If it is not so joined, this plea admits that but for lack of mental capacity the defendant committed all the essential elements of the offense charged in the indictment, information or complaint.
971.06(2)
(2) If a defendant stands mute or refuses to plead, the court shall direct the entry of a plea of not guilty on the defendant's behalf.
971.06(3)
(3) At the time a defendant enters a plea, the court may not require the defendant to disclose his or her citizenship status.
971.06 History
History: 1985 a. 252;
1993 a. 486.
971.06 Annotation
Inaccurate legal advice renders a plea an uninformed one and can compromise the voluntariness of the plea. State v. Woods, 173 W (2d) 129, 496 NW (2d) 144 (Ct. App. 1992).
971.06 Annotation
The decision to plead guilty is personal to the defendant. A defendant's attorney cannot renegotiate a plea agreement without the defendant's knowledge and consent. State v. Woods, 173 W (2d) 129, 496 NW (2d) 144 (Ct. App. 1992).
971.06 Annotation
Whether to grant a defendant's motion to change a plea is within the court's discretion. State v. Kazee, 192 W (2d) 213, 531 NW (2d) 332 (Ct. App. 1995).
971.07
971.07
Multiple defendants. Defendants who are jointly charged may be arraigned separately or together, in the discretion of the court.
971.08
971.08
Pleas of guilty and no contest; withdrawal thereof. 971.08(1)(1) Before the court accepts a plea of guilty or no contest, it shall do all of the following:
971.08(1)(a)
(a) Address the defendant personally and determine that the plea is made voluntarily with understanding of the nature of the charge and the potential punishment if convicted.
971.08(1)(b)
(b) Make such inquiry as satisfies it that the defendant in fact committed the crime charged.
971.08(1)(c)
(c) Address the defendant personally and advise the defendant as follows: "If you are not a citizen of the United States of America, you are advised that a plea of guilty or no contest for the offense with which you are charged may result in deportation, the exclusion from admission to this country or the denial of naturalization, under federal law."
971.08(2)
(2) If a court fails to advise a defendant as required by
sub. (1) (c) and a defendant later shows that the plea is likely to result in the defendant's deportation, exclusion from admission to this country or denial of naturalization, the court on the defendant's motion shall vacate any applicable judgment against the defendant and permit the defendant to withdraw the plea and enter another plea. This subsection does not limit the ability to withdraw a plea of guilty or no contest on any other grounds.
