LRB-1944/1
RLR:jld:nwn
2007 - 2008 LEGISLATURE
May 15, 2007 - Introduced by Representatives Gundrum, Musser, Jeskewitz, J.
Ott, Kaufert, Gunderson, Nass, Albers, Nerison, Mursau
and Townsend,
cosponsored by Senators Darling and Roessler. Referred to Committee on
Judiciary and Ethics.
AB336,1,2 1An Act to amend 971.20 (3) (b), 971.20 (5) and 971.20 (6); and to create 971.20
2(2m) of the statutes; relating to: substitution of a judge in a criminal action.
Analysis by the Legislative Reference Bureau
Under current law, a defendant has a right to one substitution of an assigned
judge during the course of a criminal action, which begins with the filing of a
complaint and ends with the final disposition at the trial. A defendant who wins a
new trial or sentencing proceeding on appeal has a right to substitution for the new
trial or proceeding, even if he or she requested a substitution for the first trial. The
defendant is not required to show cause for a substitution. Also under current law,
a judge is required to disqualify himself or herself from an action under a variety of
circumstances, including that the judge is related to any party or counsel involved
in the action, the judge has a financial interest in the outcome of the action, or the
judge cannot act in an impartial manner.
This bill provides that, if a defendant does not exercise his or her right to
substitution of a judge within 60 days after the initial appearance, the defendant
waives the right to substitution of a judge in the criminal action, except that the
defendant does not waive the right to substitution for a new trial or sentencing
proceeding ordered on appeal.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB336, s. 1
1Section 1. 971.20 (2m) of the statutes is created to read:
AB336,2,52 971.20 (2m) Deadline to request substitution. If the defendant does not file
3a written request for substitution of a judge with the clerk or the court within 60 days
4after the initial appearance, the defendant waives the right under this section to
5substitution of a judge in the criminal action, except as provided under sub. (7).
AB336, s. 2 6Section 2. 971.20 (3) (b) of the statutes is amended to read:
AB336,2,137 971.20 (3) (b) A written request for the substitution of a different judge for the
8judge assigned to preside at the preliminary examination may be filed with the clerk,
9or with the court at the initial appearance. If Subject to sub. (2m), if filed with the
10clerk, the request must be filed at least 5 days before the preliminary examination
11unless the court otherwise permits. Substitution of a judge assigned to a preliminary
12examination under this subsection exhausts the right to substitution for the
13duration of the action, except under sub. (7).
AB336, s. 3 14Section 3. 971.20 (5) of the statutes is amended to read:
AB336,2,2515 971.20 (5) Substitution of trial judge subsequently assigned. If Subject to
16sub. (2m), if
a new judge is assigned to the trial of an action and the defendant has
17not exercised the right to substitute an assigned judge, a written request for the
18substitution of the new judge may be filed with the clerk within 15 days of the clerk's
19giving actual notice or sending notice of the assignment to the defendant or the
20defendant's attorney. If Subject to sub. (2m), if the notification occurs within 20 days
21of the date set for trial, the request shall be filed within 48 hours of the clerk's giving
22actual notice or sending notice of the assignment. If Subject to sub. (2m), if the
23notification occurs within 48 hours of the trial or if there has been no notification, the
24defendant may make an oral or written request for substitution prior to the
25commencement of the proceedings.
AB336, s. 4
1Section 4. 971.20 (6) of the statutes is amended to read:
AB336,3,72 971.20 (6) Substitution of judge in multiple defendant actions. In actions
3involving more than one defendant, the request for substitution shall be made jointly
4by all defendants. If severance has been granted and the right to substitute has not
5been exercised prior to the granting of severance or waived under sub. (2m), the
6defendant or defendants in each action may request a substitution under this
7section.
AB336, s. 5 8Section 5. Initial applicability.
AB336,3,109 (1) This act first applies to actions commenced on the effective date of this
10subsection.
AB336,3,1111 (End)
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