971.08 Annotation
The proceedings following a plea of guilty were not designed to establish a prima facie case, but to establish the voluntariness of the plea and the factual basis therefor; hence if the defendant denies an element of the crime after pleading guilty, the court is required to reject the plea and set the case for trial, and not obliged to dismiss the action because of refusal to accept the guilty plea. Johnson v. State, 53 W (2d) 787, 193 NW (2d) 659.
971.08 Annotation
A hearing on a motion to withdraw a guilty plea is to be liberally granted if the motion is made prior to sentence; it is discretionary if made thereafter and need not be granted if the record refutes the allegations. Defendant must raise a substantial issue of fact. Nelson v. State, 54 W (2d) 489, 195 NW (2d) 629.
971.08 Annotation
When there is strong evidence of guilt a conviction will be sustained even against a defendant who, having pleaded guilty, nonetheless denies the factual basis for guilt. State v. Chabonian, 55 W (2d) 723, 201 NW (2d) 25.
971.08 Annotation
A plea bargain which contemplates special concessions to another person requires careful scrutiny by the court. It must also be reviewed as to whether it is in the public interest. State ex rel. White v. Gray, 57 W (2d) 17, 203 NW (2d) 638.
971.08 Annotation
A court has inherent power to refuse to accept a plea of guilty and may dismiss the charge on motion of the district attorney in order to allow prosecution on a 2nd complaint. State v. Waldman, 57 W (2d) 234, 203 NW (2d) 691.
971.08 Annotation
It is not error for the court to accept a guilty plea before hearing the factual basis for the plea if a sufficient basis is ultimately presented. Staver v. State, 58 W (2d) 726.
971.08 Annotation
The fact that defendant pled guilty with the understanding that his wife would be given probation on another charge does not necessarily render the plea involuntary. Seybold v. State, 61 W (2d) 227, 212 NW (2d) 146.
971.08 Annotation
The defendant's religious beliefs regarding the merits of confessing one's wrongdoing and his desire to mollify his family or give in to their desires are self-imposed coercive elements and do not vitiate the voluntary nature of the defendant's guilty plea. Craker v. State, 66 W (2d) 222, 223 NW (2d) 872.
971.08 Annotation
A defendant wishing to withdraw guilty plea must show by clear and convincing evidence that the plea was not knowingly and voluntarily entered and that withdrawal is necessary to prevent manifest injustice, as may be indicated in situations where (1) defendant was denied effective assistance of counsel; (2) the plea was not entered or ratified by defendant or a person authorized to so act in his behalf; (3) the plea was involuntary or was entered without knowledge of the charge or that the sentence actually imposed could be imposed; and (4) defendant did not receive the concessions contemplated by the plea agreement and the prosecutor failed to seek them as promised therein. Birts v. State, 68 W (2d) 389, 228 NW (2d) 351.
971.08 Annotation
As required by Ernst v. State, 43 W (2d) 661 and (1) (b), prior to accepting a guilty plea, the trial court must establish that the conduct defendant admits constitutes the offense charged or an offense included therein to which defendant has pleaded guilty; but where the plea is made pursuant to a plea bargain, the court need not probe as deeply in determining whether the facts would sustain the charge as it would were the plea nonnegotiated. Broadie v. State, 68 W (2d) 420, 228 NW (2d) 687.
971.08 Annotation
Trial court did not abuse discretion by failing to inquire into the effect tranquilizer had on defendant's competence to enter plea. Jones v. State, 71 W (2d) 750, 238 NW (2d) 741.
971.08 Annotation
Withdrawal of guilty plea prior to sentencing is not an absolute right but should be freely allowed when a fair and just reason for doing so is presented. Dudrey v. State, 74 W (2d) 480, 247 NW (2d) 105.
971.08 Annotation
Guilty plea cannot be withdrawn on grounds that probation conditions were more onerous than expected. Garski v. State, 75 W (2d) 62, 248 NW (2d) 425.
971.08 Annotation
See note to 939.74, citing State v. Pohlhammer, 78 W (2d) 516, 254 NW (2d) 478.
971.08 Annotation
While courts have no duty to secure informed waivers of possible statutory defenses, under unique facts of case, defendant was entitled to withdraw guilty plea to charge barred by statute of limitations. State v. Pohlhammer, 82 W (2d) 1, 260 NW (2d) 678.
971.08 Annotation
Sub. (2) does not deprive court of jurisdiction to consider untimely motion. State v. Lee, 88 W (2d) 239, 276 NW (2d) 268 (1979).
971.08 Annotation
See note to Art. I, sec. 8, citing State ex rel. Skinkis v. Treffert, 90 W (2d) 528, 280 NW (2d) 316 (Ct. App. 1979).
971.08 Annotation
See note to Art. I, sec. 7, citing State v. Rock, 92 W (2d) 554, 285 NW (2d) 739 (1979).
971.08 Annotation
Absent abuse of discretion in doing so, prosecutor may withdraw plea bargain offer at any time prior to action by defendant in detrimental reliance on the offer. State v. Beckes, 100 W (2d) 1, 300 NW (2d) 871 (Ct. App. 1980).
971.08 Annotation
Trial court did not err in refusing to allow defendant to withdraw guilty plea accompanied by protestations of innocence. State v. Johnson, 105 W (2d) 657, 314 NW (2d) 897 (Ct. App. 1981).
971.08 Annotation
Conditional guilty pleas are not to be accepted and will not be given effect, except as provided by statute. State v. Riekkoff, 112 W (2d) 119, 332 NW (2d) 744 (1983).
971.08 Annotation
See note to Art. I, sec. 7, citing State v. Ludwig, 124 W (2d) 600, 369 NW (2d) 722 (1985).
971.08 Annotation
Where defendant offered plea of no contest but refused to waive constitutional rights or to answer judge's questions, judge should have set trial date and refused further discussion of no contest plea. State v. Minniecheske, 127 W (2d) 234, 378 NW (2d) 283 (1985).
971.08 Annotation
Due process does not require that record of plea hearing demonstrate defendant's understanding of nature of charge at time of plea. State v. Carter, 131 W (2d) 69, 389 NW (2d) 1 (1986).
971.08 Annotation
Bangert procedures under this section apply to defendant pleading not guilty by reason of mental disease or defect. State v. Shegrud, 131 W (2d) 133, 389 NW (2d) 7 (1986).
971.08 Annotation
Failure to comply with this section is not necessarily a constitutional violation. Procedures mandated for plea hearing. Remedy established. State v. Bangert, 131 W (2d) 246, 389 NW (2d) 12 (1986).
971.08 Annotation
Withholding of sentence and imposition of probation, as those terms are used by courts, are functionally equivalent to sentencing for determining appropriateness of plea withdrawal. State v. Booth, 142 W (2d) 232, 418 NW (2d) 20 (Ct. App. 1987).
971.08 Annotation
See note to 971.04 citing State v. Krause, 161 W (2d) 919, 469 NW (2d) 241 (Ct. App. 1991).
971.08 Annotation
Failure to comply with sub. (1) (c) is governed by sub. (2); holding in Bangert does not apply. Meaning of "likely" deportation under sub. (2) discussed. State v. Beaza, 174 W (2d) 118, 496 NW (2d) 156 (Ct. App. 1993).
971.08 Annotation
Where alien defendant was aware of the likelihood of deportation when a plea was entered, the court's failure to comply with sub. (1) was not grounds for withdrawal of the plea. State v. Chavez, 175 W (2d) 366, 498 NW (2d) 887 (Ct. App. 1993).
971.08 Annotation
A conclusory allegation of manifest injustice, unsupported by factual assertions is legally insufficient to entitle a defendant to even a hearing on a motion to withdraw a guilty plea following sentencing. State v. Washington, 176 W (2d) 205, NW (2d) (Ct. App. 1993).
971.08 Annotation
In accepting a negotiated guilty plea for probation, the trial court should but is not required to advise the defendant of the potential maximum sentence which may be imposed if probation is revoked. State v. James, 176 W (2d) 230, NW (2d) (Ct. App. 1993).
971.08 Annotation
In the context of a plea bargain, sub. (1) (a) is satisfied if the plea is voluntarily and understandingly made and a factual basis is shown for either the offense pleaded to or to a more serious offense reasonably related to the offense pleaded to. State v. Harrell, 182 W (2d) 408, 513 NW (2d) 700 (Ct. App. 1994).
971.08 Annotation
A guilty plea, made knowingly and voluntarily, waives all nonjurisdictional defects and defenses including alleged violations of constitutional rights, prior to the appeal. State v. Aniton, 183 W (2d) 125, 515 NW (2d) 302 (Ct. App. 1994).
971.08 Annotation
An Alford plea in which the defendant pleads guilty while either maintaining innocence or not admitting having committed the crime is acceptable where strong proof of guilt has been shown. State v. Garcia, 192 W (2d) 845, 532 NW (2d) 111 (1995).
971.08 Annotation
A trial court need not advise a defendant of the potential that restitution will be ordered in accepting a plea under this section. Restitution is primarily rehabilitative, not punitive, and not "potential punishment" under sub. (1) (a). State v. Dugan, 193 W (2d) 610, 534 NW (2d) 897 (Ct. App. 1995).
971.08 Annotation
A postconviction motion to withdraw a guilty plea requires showing that a "manifest injustice" would occur if the motion is denied. A postconviction recantation by a witness may constitute new evidence showing a "manifest injustice" and requiring a new trial if there is a reasonable probability that a jury would reach a different result. It is error for the judge to determine whether the recantation or the original allegation is true. State v. McCallum, 198 W (2d) 149, 542 NW (2d) 184 (Ct. App. 1995).
971.08 Annotation
A defendant seeking a post conviction plea withdrawal due to a violation of sub. (1) (a) must make a prima facie showing that a violation occurred and must also allege that he or she did not know or understand the information which should have been provided. State v. Geibel, 198 W (2d) 207, 541 NW (2d) 815 (Ct. App. 1995).
971.08 Annotation
The concept of notice pleading has no application to a postconviction motion challenging a guilty plea. An allegation that a guilty plea was entered because of misinformation provided by counsel is merely conclusory. Facts must be alleged which show a reasonable probability that but for counsel's errors the defendant would have proceeded to trial and which allow the court to meaningfully assess the claim of prejudice. State v. Bentley, 201 W (2d) 303, 548 NW (2d) 50 (1996).
971.08 Annotation
It is error for a trial court not to inquire whether the defendant has knowledge of the presumptive minimum sentence, but the error may be harmless if the defendant is otherwise aware of the minimum. State v. Mohr, 201 W (2d) 690, 549 NW (2d) 497 (Ct. App. 1996).
971.08 Annotation
An Alford plea is acceptable only where strong proof of guilt has been shown. A plea under an agreement to plead to a related offense to that charged which would have been legally impossible for the defendant to have committed could not satisfy the strong proof requirement. State v. Smith, 202 W (2d) 21, 549 NW (2d) 232 (1996).
971.08 Annotation
When a plea rests in any significant degree on a promise or agreement of the prosecutor, so it can be said to be part of the inducement, the promise must be fulfilled. Where the state was unable to fulfill its promise withdrawal of a no contest plea was in order. State v. Castillo, 205 W (2d) 592, 556 NW (2d) 428 (Ct. App. 1996).
971.08 Annotation
One type of manifest injustice which would allow postconviction withdrawal of a guilty plea is the failure to establish a sufficient factual basis that the defendant committed the offense. State v. Johnson, 207 W (2d) 240, 558 NW (2d) 375 (1997).
971.08 Annotation
Whether a defendant knowingly entered an Alford plea must be determined by the court based on the personal colloquy with the defendant and not whether specific words were used in making the plea. State v. Salentine, 206 W (2d) 418, 557 NW (2d) 439 (Ct. App. 1996).
971.08 Annotation
A conviction following an Alford plea, does not prevent imposing as a condition of probation that the defendant complete a treatment program that requires acknowledging responsibility for the crime which resulted in the conviction. The imposition of the condition does not violate the defendant's due process rights. There is nothing inherent in the plea that gives the defendant any rights as to punishment. State ex rel. Warren v. Schwarz, 219 W (2d) 616, 579 NW (2d) 698 (1998).
971.08 Annotation
In order for a plea to be knowingly and intelligently informed the defendant must be informed of the "direct consequences" of the plea, but due process does not require informing the defendant of collateral consequences. Direct consequences are definite, immediate and largely automatic and do not depend on the defendant's future psychological condition. State ex rel. Warren v. Schwarz, 219 W (2d) 616, 579 NW (2d) 698 (1998).
971.08 Annotation
Requirements for accepting no contest plea discussed. State v. McKee, 212 W (2d) 488, 569 NW (2d) 93 (Ct. App. 1997).
971.08 Annotation
A plea not knowingly and intelligently made violates due process and entitles the defendant to withdraw the plea. The plea may be involuntary either because the defendant does not have a full understanding of the charge or the nature of the rights being waived. State v. Van Camp, 213 W (2d) 131, 569 NW (2d) 582 (1998).
971.08 Annotation
The test to determine a knowing and intelligent no contest plea is whether the defendant has made a prima facie showing that the plea was made without the court's conformance with this section and whether the defendant has properly alleged that he or she in fact did not know or understand the information that should have been provided. The state must then prove the plea was knowingly and intelligently made by clear and convincing evidence. State v. Van Camp, 213 W (2d) 131, 569 NW (2d) 582 (1998).
971.08 Annotation
In a plea hearing, if a plea questionnaire contains inaccurate information, the defendant must show that the trial court and defendant were together relying on information contained in the questionnaire as evidence of the defendant's knowledge and understanding of the nature of the crimes. State v. Brandt, 220 W (2d) 121, 582 NW (2d) 433 (Ct. App. 1998).
971.08 Annotation
The state's burden of proving a plea was knowingly and voluntarily made cannot be proved by a negative inference. There must be some affirmative evidence of the fact. State v. Nicholson, 220 W (2d) 214, 582 NW (2d) 460 (Ct. App. 1998).
971.08 Annotation
See note to 968.01, citing 63 Atty. Gen. 540.
971.08 Annotation
Where accused rejected plea bargain on misdemeanor charge and instead requested jury trial, prosecutor did not act vindictively in raising charge to felony. United States v. Goodwin, 457 US 368 (1982).
971.08 Annotation
Defendant's acceptance of prosecutor's proposed plea bargain did not bar prosecutor from withdrawing offer. Mabry v. Johnson, 467 US 504 (1984).
971.08 Annotation
Where a defendant knowingly entered a guilty plea and the state's evidence supported a conviction, the conviction is valid even though the defendant gave testimony inconsistent with the plea. Hansen v. Mathews, 424 F (2d) 1205.
971.08 Annotation
See note to Art. I, sec. 7, citing United States v. Gaertner, 583 F (2d) 308 (1978).
971.08 Annotation
Guilty pleas in Wisconsin. Bishop, 58 MLR 631.
971.08 Annotation
Pleas of guilty; plea bargaining. 1971 WLR 583.
971.09
971.09
Plea of guilty to offenses committed in several counties. 971.09(1)(1) Any person who admits that he or she has committed crimes in the county in which he or she is in custody and also in another county in this state may apply to the district attorney of the county in which he or she is in custody to be charged with those crimes so that the person may plead guilty and be sentenced for them in the county of custody. The application shall contain a description of all admitted crimes and the name of the county in which each was committed.
971.09(2)
(2) Upon receipt of the application the district attorney shall prepare an information charging all the admitted crimes and naming in each count the county where each was committed. The district attorney shall send a copy of the information to the district attorney of each other county in which the defendant admits he or she committed crimes, together with a statement that the defendant has applied to plead guilty in the county of custody. Upon receipt of the information and statement, the district attorney of the other county may execute a consent in writing allowing the defendant to enter a plea of guilty in the county of custody, to the crime charged in the information and committed in the other county, and send it to the district attorney who prepared the information.
971.09(3)
(3) The district attorney shall file the information in any court of the district attorney's county having jurisdiction to try or accept a plea of guilty to the most serious crime alleged therein as to which, if alleged to have been committed in another county, the district attorney of that county has executed a consent as provided in
sub. (2). The defendant then may enter a plea of guilty to all offenses alleged to have been committed in the county where the court is located and to all offenses alleged to have been committed in other counties as to which the district attorney has executed a consent under
sub. (2). Before entering a plea of guilty, the defendant shall waive in writing any right to be tried in the county where the crime was committed. The district attorney of the county where the crime was committed need not be present when the plea is made but the district attorney's written consent shall be filed with the court.
971.09(4)
(4) Thereupon the court shall enter such judgment, the same as though all the crimes charged were alleged to have been committed in the county where the court is located, whether or not the court has jurisdiction to try all those crimes to which the defendant has pleaded guilty under this section.
971.09(5)
(5) The county where the plea is made shall pay the costs of prosecution if the defendant does not pay them, and is entitled to retain fees for receiving and paying to the state any fine which may be paid by the defendant. The clerk where the plea is made shall file a copy of the judgment of conviction with the clerk in each county where a crime covered by the plea was committed. The district attorney shall then move to dismiss any charges covered by the plea of guilty, which are pending against the defendant in the district attorney's county, and the same shall thereupon be dismissed.
971.09 History
History: 1979 c. 31;
1993 a. 486.
971.09 Annotation
It is not error for the court to accept the plea before the amended complaint was filed, where defendant waived the late filing and was not prejudiced thereby. Failure to prepare an amended information prior to obtaining consents by the district attorneys involved does not invalidate the conviction where the consents were actually obtained and the defendant waived the defect. Failure to dismiss the charges in one of the counties does not deprive the court of jurisdiction. Failure of a district attorney to specifically consent as to one offense does not invalidate the procedure where the error is clerical. Peterson v. State, 54 W (2d) 370, 195 NW (2d) 837.
971.09 Annotation
Effect of consolidation on repeater allegation discussed. State v. Rachwal, 159 W (2d) 494, 465 NW (2d) 490 (1991).
971.09 Annotation
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).
971.095
971.095
Consultation with and notices to victim. 971.095(2)
(2) In any case in which a defendant has been charged with a crime, the district attorney shall, as soon as practicable, offer all of the victims in the case who have requested the opportunity an opportunity to confer with the district attorney concerning the prosecution of the case and the possible outcomes of the prosecution, including potential plea agreements and sentencing recommendations. The duty to confer under this subsection does not limit the obligation of the district attorney to exercise his or her discretion concerning the handling of any criminal charge against the defendant.
971.095(3)
(3) At the request of a victim, a district attorney shall make a reasonable attempt to provide the victim with notice of the date, time and place of scheduled court proceedings in a case involving the prosecution of a crime of which he or she is a victim and any changes in the date, time or place of a scheduled court proceeding for which the victim has received notice. This subsection does not apply to a proceeding held before the initial appearance to set conditions of release under
ch. 969.
971.095(4)
(4) If a person is arrested for a crime but the district attorney decides not to charge the person with a crime, the district attorney shall make a reasonable attempt to inform all of the victims of the act for which the person was arrested that the person will not be charged with a crime at that time.
971.095(5)
(5) If a person is charged with committing a crime and the charge against the person is subsequently dismissed, the district attorney shall make a reasonable attempt to inform all of the victims of the crime with which the person was charged that the charge has been dismissed.
971.095(6)
(6) A district attorney shall make a reasonable attempt to provide information concerning the disposition of a case involving a crime to any victim of the crime who requests the information.
971.095 History
History: 1997 a. 181.
971.10(1)(1) In misdemeanor actions trial shall commence within 60 days from the date of the defendant's initial appearance in court.
971.10(2)(a)(a) 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.
971.10(2)(b)
(b) 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.
971.10(3)(a)(a) 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.
971.10(3)(b)
(b) The factors, among others, which the court shall consider in determining whether to grant a continuance under
par. (a) are:
971.10(3)(b)1.
1. 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.
971.10(3)(b)2.
2. 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.
