In a consolidated case, amendment of the charges from another county is not permissible. When amendment of those charges occurs after consolidation, the original trial court retains jurisdiction. Where the original charge does not have the identical elements of the amended charge, double jeopardy does not prevent prosecution of the original charge in the original county although a guilty plea was entered to the amended charge in the other court. State v. Dillon, 187 W (2d) 39, 522 NW (2d) 530 (Ct. App. 1994).
In misdemeanor actions trial shall commence within 60 days from the date of the defendant's initial appearance in court.
The trial of a defendant charged with a felony shall commence within 90 days from the date trial is demanded by any party in writing or on the record. If the demand is made in writing, a copy shall be served upon the opposing party. The demand may not be made until after the filing of the information or indictment.
If the court is unable to schedule a trial pursuant to par. (a)
, the court shall request assignment of another judge pursuant to s. 751.03
A court may grant a continuance in a case, upon its own motion or the motion of any party, if the ends of justice served by taking action outweigh the best interest of the public and the defendant in a speedy trial. A continuance shall not be granted under this paragraph unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of the continuance outweigh the best interests of the public and the defendant in a speedy trial.
The factors, among others, which the court shall consider in determining whether to grant a continuance under par. (a)
Whether the failure to grant the continuance in the proceeding would be likely to make a continuation of the proceeding impossible or result in a miscarriage of justice.
Whether the case taken as a whole is so unusual and so complex, due to the number of defendants or the nature of the prosecution or otherwise, that it is unreasonable to expect adequate preparation within the periods of time established by this section.
No continuance under par. (a)
may be granted because of general congestion of the court's calendar or the lack of diligent preparation or the failure to obtain available witnesses on the part of the state.
Every defendant not tried in accordance with this section shall be discharged from custody but the obligations of the bond or other conditions of release of a defendant shall continue until modified or until the bond is released or the conditions removed.
The supreme court adopts the federal court applied balancing test, as appropriate to review the exercise of trial court's discretion on a request for the substitution of trial counsel, with the associated request for a continuance. Phifer v. State, 64 W (2d) 24, 218 NW (2d) 354.
Party requesting continuance on grounds of surprise must show: 1) actual surprise of unforeseeable development; 2) where surprise is caused by unexpected testimony, probability of producing contradictory or impeaching evidence; and 3) resulting prejudice if request is denied. See note to 971.23, citing Angus v. State, 76 W (2d) 191, 251 NW (2d) 28.
Delay of 84 days between defendant's first court appearance and trial on misdemeanor traffic charges was not so inordinate as to raise presumption of prejudice. State v. Mullis, 81 W (2d) 454, 260 NW (2d) 696.
Stay of proceedings caused by state's interlocutory appeal stopped the running of time period under (2). State ex rel. Rabe v. Ferris, 97 W (2d) 63, 293 NW (2d) 151 (1980).
Child victims and witnesses; duty to expedite proceedings.
In all criminal and delinquency cases, juvenile fact-finding hearings under s. 48.31
and juvenile dispositional hearings involving a child victim or witness, as defined in s. 950.02
, the court and the district attorney shall take appropriate action to ensure a speedy trial in order to minimize the length of time the child must endure the stress of the child's involvement in the proceeding. In ruling on any motion or other request for a delay or continuance of proceedings, the court shall consider and give weight to any adverse impact the delay or continuance may have on the well-being of a child victim or witness.
Prompt disposition of intrastate detainers. 971.11(1)(1)
Whenever the warden or superintendent receives notice of an untried criminal case pending in this state against an inmate of a state prison, the warden or superintendent shall, at the request of the inmate, send by certified mail a written request to the district attorney for prompt disposition of the case. The request shall state the sentence then being served, the date of parole eligibility, if applicable, the approximate discharge or conditional release date, and prior decision relating to parole. If there has been no preliminary examination on the pending case, the request shall state whether the inmate waives such examination, and, if so, shall be accompanied by a written waiver signed by the inmate.
If the crime charged is a felony, the district attorney shall either move to dismiss the pending case or arrange a date for preliminary examination as soon as convenient and notify the warden or superintendent of the prison thereof, unless such examination has already been held or has been waived. After the preliminary examination or upon waiver thereof, the district attorney shall file an information, unless it has already been filed, and mail a copy thereof to the warden or superintendent for service on the inmate. The district attorney shall bring the case on for trial within 120 days after receipt of the request subject to s. 971.10
If the crime charged is a misdemeanor, the district attorney shall either move to dismiss the charge or bring it on for trial within 90 days after receipt of the request.
If the defendant desires to plead guilty or no contest to the complaint or to the information served upon him or her, the defendant shall notify the district attorney thereof. The district attorney shall thereupon arrange for the defendant's arraignment as soon as possible and the court may receive the plea and pronounce judgment.
If the defendant wishes to plead guilty to cases pending in more than one county, the several district attorneys involved may agree with the defendant and among themselves for all such pleas to be received in the appropriate court of one of such counties, and s. 971.09
shall govern the procedure thereon so far as applicable.
The prisoner shall be delivered into the custody of the sheriff of the county in which the charge is pending for transportation to the court, and the prisoner shall be retained in that custody during all proceedings under this section. The sheriff shall return the prisoner to the prison upon the completion of the proceedings and during any adjournments or continuances and between the preliminary examination and the trial, except that if the department certifies a jail as being suitable to detain the prisoner, he or she may be detained there until the court disposes of the case. The prisoner's existing sentence continues to run and he or she receives time credit under s. 302.11
while in custody.
If the district attorney moves to dismiss any pending case or if it is not brought on for trial within the time specified in sub. (2)
the case shall be dismissed unless the defendant has escaped or otherwise prevented the trial, in which case the request for disposition of the case shall be deemed withdrawn and of no further legal effect. Nothing in this section prevents a trial after the period specified in sub. (2)
if a trial commenced within such period terminates in a mistrial or a new trial is granted.
Joinder of crimes and of defendants. 971.12(1)(1)
Joinder of crimes.
Two or more crimes may be charged in the same complaint, information or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors, or both, are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan. When a misdemeanor is joined with a felony, the trial shall be in the court with jurisdiction to try the felony.
(2) Joinder of defendants.
Two or more defendants may be charged in the same complaint, information or indictment if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting one or more crimes. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.
(3) Relief from prejudicial joinder.
If it appears that a defendant or the state is prejudiced by a joinder of crimes or of defendants in a complaint, information or indictment or by such joinder for trial together, the court may order separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. The district attorney shall advise the court prior to trial if the district attorney intends to use the statement of a codefendant which implicates another defendant in the crime charged. Thereupon, the judge shall grant a severance as to any such defendant.
(4) Trial together of separate charges.
The court may order 2 or more complaints, informations or indictments to be tried together if the crimes and the defendants, if there is more than one, could have been joined in a single complaint, information or indictment. The procedure shall be the same as if the prosecution were under such single complaint, information or indictment.
History: 1993 a. 486
Where 2 defendants were charged and the cases consolidated, and one then pleads guilty, there is no need for a severance, especially where the trial is to the court. Nicholas v. State, 49 W (2d) 678, 183 NW (2d) 8.
Severance is not required where the 2 charges involving a single act or transaction are so inextricably intertwined so as to make proof of one crime impossible without proof of the other. Holmes v. State, 63 W (2d) 389, 217 NW (2d) 657.
Due process of law was not violated, nor did the trial court abuse its discretion, by denial of defendant's motion to sever 3 counts of sex offenses from a count of first-degree murder. Bailey v. State, 65 W (2d) 331, 222 NW (2d) 871.
In a joint trial on charges of burglary and obstructing an officer, while evidence as to the fabrication of an alibi by defendant was probative as to the burglary, the substantial danger that the jury might employ such evidence as affirmative proof of the elements of that crime, for which the state was required to introduce separate and independent evidence showing guilt beyond a reasonable doubt, required the court to administer a clear and certain cautionary instruction that the jury should not consider evidence on the obstructing count as sufficient in itself to find defendant guilty of burglary. Peters v. State, 70 W (2d) 22, 233 NW (2d) 420.
Joinder was not prejudicial to defendant moving for severance where possibly prejudicial effect of inadmissible hearsay regarding other defendant was presumptively cured by instructions. State v. Jennaro, 76 W (2d) 499, 251 NW (2d) 800.
Where codefendant's antagonistic testimony merely corroborates overwhelming prosecution evidence, refusal to grant severance is not abuse of discretion. Haldane v. State, 85 W (2d) 182, 270 NW (2d) 75 (1978).
Joinder of charges against defendant was proper where separate acts exhibited some modus operandi. Francis v. State, 86 W (2d) 554, 273 NW (2d) 310 (1979).
Trial court properly deleted implicating references from codefendant's confession rather than granting defendant's motion for severance under (3). Pohl v. State, 96 W (2d) 290, 291 NW (2d) 554 (1980).
Trial court did not abuse discretion in denying severance motion and failing to caution jury against prejudice where 2 counts were joined. State v. Bettinger, 100 W (2d) 691, 303 NW (2d) 585 (1981).
Joinder is not prejudicial where same evidence would be admissible under 904.04 if there were separate trials. State v. Hall, 103 W (2d) 125, 307 NW (2d) 289 (1981).
Trial court abused discretion in denying motion for severance of codefendants' trials, where accused made initial showing that codefendant's testimony would have established accused's alibi defense and accused's entire defense was based on alibi. State v. Brown, 114 W (2d) 554, 338 NW (2d) 857 (Ct. App. 1983).
Joinder under (2) was proper where both robberies were instigated by one defendant's prostitution and other defendant systematically robbed customers who refused to pay. State v. King, 120 W (2d) 285, 354 NW (2d) 742 (Ct. App. 1984).
Misjoinder was harmless error. State v. Leach, 124 W (2d) 648, 370 NW (2d) 240 (1985).
To be of "same or similar character" under (1), crimes must be of same type, occur over relatively short time period, and evidence as to each must overlap. State v. Hamm, 146 W (2d) 130, 430 NW (2d) 584 (Ct. App. 1988).
Joinder and severance. 1971 WLR 604.
No person who lacks substantial mental capacity to understand the proceedings or assist in his or her own defense may be tried, convicted or sentenced for the commission of an offense so long as the incapacity endures.
A defendant shall not be determined incompetent to proceed solely because medication has been or is being administered to restore or maintain competency.
The fact that a defendant is not competent to proceed does not preclude any legal objection to the prosecution under s. 971.31
which is susceptible of fair determination prior to trial and without the personal participation of the defendant.
History: 1981 c. 367
Judicial Council Committee's Note, 1981: Fundamental fairness precludes criminal prosecution of a defendant who is not mentally competent to exercise his or her constitutional and procedural rights. State ex rel. Matalik v. Schubert, 57 Wis. 2d 315
, 322 (1973).
Sub. (1) states the competency standard in conformity with Dusky v. U.S., 362 U.S. 402
(1960) and State ex rel. Haskins v. Dodge County Court, 62 Wis. 2d 250
, 265 (1974). Competency is a judicial rather than a medical determination. Not every mentally disordered defendant is incompetent; the court must consider the degree of impairment in the defendant's capacity to assist counsel and make decisions which counsel cannot make for him or her. See State v. Harper, 57 Wis. 2d 543
(1973); Norwood v. State, 74 Wis. 2d 343
(1976); State v. Albright, 96 Wis. 2d 122
(1980); Pickens v. State, 96 Wis. 2d 549
Sub. (2) clarifies that a defendant who requires medication to remain competent is nevertheless competent; the court may order the defendant to be administered such medication for the duration of the criminal proceedings under s. 971.14 (5) (c).
Sub. (3) is identical to prior s. 971.14 (6). It has been renumbered for better statutory placement, adjacent to the rule which it clarifies. [Bill 765-A]
Competency to stand trial is not necessarily sufficient competency to represent oneself. Pickens v. State, 96 W (2d) 549, 292 NW (2d) 601 (1980).
Defense counsel having reason to doubt competency of client must raise issue with court, strategic considerations notwithstanding. State v. Johnson, 133 W (2d) 207, 395 NW (2d) 176 (1986).
Competency proceedings. 971.14(1)(a)(a)
The court shall proceed under this section whenever there is reason to doubt a defendant's competency to proceed.
If reason to doubt competency arises after the defendant has been bound over for trial after a preliminary examination, or after a finding of guilty has been rendered by the jury or made by the court, a probable cause determination shall not be required and the court shall proceed under sub. (2)
Except as provided in par. (b)
, the court shall not proceed under sub. (2)
until it has found that it is probable that the defendant committed the offense charged. The finding may be based upon the complaint or, if the defendant submits an affidavit alleging with particularity that the averments of the complaint are materially false, upon the complaint and the evidence presented at a hearing ordered by the court. The defendant may call and cross-examine witnesses at a hearing under this paragraph but the court shall limit the issues and witnesses to those required for determining probable cause. Upon a showing by the proponent of good cause under s. 807.13 (2) (c)
, testimony may be received into the record of the hearing by telephone or live audio-visual means. If the court finds that any charge lacks probable cause, it shall dismiss the charge without prejudice and release the defendant except as provided in s. 971.31 (6)
The court shall appoint one or more examiners having the specialized knowledge determined by the court to be appropriate to examine and report upon the condition of the defendant. If an inpatient examination is determined by the court to be necessary, the defendant may be committed to a suitable mental health facility for the examination period specified in par. (c)
, which shall be deemed days spent in custody under s. 973.155
. If the examination is to be conducted by the department of health and family services, the court shall order the individual to the facility designated by the department of health and family services.
Notwithstanding par. (a)
, if the court orders the defendant to be examined by the department or a department facility, the department shall determine where the examination will be conducted, who will conduct the examination and whether the examination will be conducted on an inpatient or outpatient basis. Any such outpatient examination shall be conducted in a jail or a locked unit of a facility. In any case under this paragraph in which the department determines that an inpatient examination is necessary, the 15-day period under par. (c)
begins upon the arrival of the defendant at the inpatient facility. If an outpatient examination is begun by or through the department, and the department later determines that an inpatient examination is necessary, the sheriff shall transport the defendant to the inpatient facility designated by the department, unless the defendant has been released on bail.
If the defendant has been released on bail, the court may not order an involuntary inpatient examination unless the defendant fails to cooperate in the examination or the examiner informs the court that inpatient observation is necessary for an adequate examination.
Inpatient examinations shall be completed and the report of examination filed within 15 days after the examination is ordered or as specified in par. (am)
, whichever is applicable, unless, for good cause, the facility or examiner appointed by the court cannot complete the examination within this period and requests an extension. In that case, the court may allow one 15-day extension of the examination period. Outpatient examinations shall be completed and the report of examination filed within 30 days after the examination is ordered.
If the court orders that the examination be conducted on an inpatient basis, it shall arrange for the transportation of any defendant not free on bail to the examining facility within a reasonable time after the examination is ordered and for the defendant to be returned to the jail within a reasonable time after receiving notice from the examining facility that the examination has been completed.
The examiner shall personally observe and examine the defendant and shall have access to his or her past or present treatment records, as defined under s. 51.30 (1) (b)
A defendant ordered to undergo examination under this section may receive voluntary treatment appropriate to his or her medical needs. The defendant may refuse medication and treatment except in a situation where the medication or treatment is necessary to prevent physical harm to the defendant or others.
The defendant may be examined for competency purposes at any stage of the competency proceedings by physicians or other experts chosen by the defendant or by the district attorney, who shall be permitted reasonable access to the defendant for purposes of the examination.
The examiner shall submit to the court a written report which shall include all of the following:
A description of the nature of the examination and an identification of the persons interviewed, the specific records reviewed and any tests administered to the defendant.
The examiner's opinion regarding the defendant's present mental capacity to understand the proceedings and assist in his or her defense.
If the examiner reports that the defendant lacks competency, the examiner's opinion regarding the likelihood that the defendant, if provided treatment, may be restored to competency within the time period permitted under sub. (5) (a)
If sufficient information is available to the examiner to reach an opinion, the examiner's opinion on whether the defendant needs medication or treatment and whether the defendant is not competent to refuse medication or treatment. The defendant is not competent to refuse medication or treatment if, because of mental illness, developmental disability, alcoholism or drug dependence, and after the advantages and disadvantages of and alternatives to accepting the particular medication or treatment have been explained to the defendant, one of the following is true:
The defendant is incapable of expressing an understanding of the advantages and disadvantages of accepting medication or treatment and the alternatives.
The defendant is substantially incapable of applying an understanding of the advantages, disadvantages and alternatives to his or her mental illness, developmental disability, alcoholism or drug dependence in order to make an informed choice as to whether to accept or refuse medication or treatment.
The facts and reasoning, in reasonable detail, upon which the findings and opinions under pars. (b)
The court shall cause copies of the report to be delivered forthwith to the district attorney and the defense counsel, or the defendant personally if not represented by counsel. The report shall not be otherwise disclosed prior to the hearing under this subsection.
If the district attorney, the defendant and defense counsel waive their respective opportunities to present other evidence on the issue, the court shall promptly determine the defendant's competency and, if at issue, competency to refuse medication or treatment for the defendant's mental condition on the basis of the report filed under sub. (3)
. In the absence of these waivers, the court shall hold an evidentiary hearing on the issue. Upon a showing by the proponent of good cause under s. 807.13 (2) (c)
, testimony may be received into the record of the hearing by telephone or live audio-visual means. At the commencement of the hearing, the judge shall ask the defendant whether he or she claims to be competent or incompetent. If the defendant stands mute or claims to be incompetent, the defendant shall be found incompetent unless the state proves by the greater weight of the credible evidence that the defendant is competent. If the defendant claims to be competent, the defendant shall be found competent unless the state proves by evidence that is clear and convincing that the defendant is incompetent. If the defendant is found incompetent and if the state proves by evidence that is clear and convincing that the defendant is not competent to refuse medication or treatment, under the standard specified in sub. (3) (dm)
, the court shall make a determination without a jury and issue an order that the defendant is not competent to refuse medication or treatment for the defendant's mental condition and that whoever administers the medication or treatment to the defendant shall observe appropriate medical standards.
If the court determines that the defendant is competent, the criminal proceeding shall be resumed.
If the court determines that the defendant is not competent and not likely to become competent within the time period provided in sub. (5) (a)
, the proceedings shall be suspended and the defendant released, except as provided in sub. (6) (b)