971.14 Competency proceedings.
971.15 Mental responsibility of defendant.
971.16 Examination of defendant.
971.165 Trial of actions upon plea of not guilty by reason of mental disease or defect.
971.17 Commitment of persons found not guilty by reason of mental disease or mental defect.
971.18 Inadmissibility of statements for purposes of examination.
971.20 Substitution of judge.
971.22 Change of place of trial.
971.225 Jury from another county.
971.23 Discovery and inspection.
971.27 Lost information, complaint or indictment.
971.28 Pleading judgment.
971.29 Amending the charge.
971.31 Motions before trial.
971.315 Inquiry upon dismissal.
971.32 Ownership, how alleged.
971.33 Possession of property, what sufficient.
971.34 Intent to defraud.
971.36 Theft; pleading and evidence; subsequent prosecutions.
971.365 Crimes involving certain controlled substances.
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 .... (year), at said county the defendant did (state the crime) .... contrary to section .... of the statutes.
Dated ...., .... (year),
.... District Attorney
971.03 History
History: 1997 a. 250.
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)(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; Sup. Ct. Order No.
96-08, 207 W (2d) xv (1997).
971.04 Note
Judicial Council Note, 1996: This statute [sub. (1) (c)] defines the proceedings at which a criminal defendant has the right to be present. The prior statute's [sub. (1) (c)] reference to ``all proceedings when the jury is being selected" was probably intended to include only those at which the jurors themselves were present, not the selection of names from lists which occurs at several stages before the defendant is charged or the trial jury picked. [Re Order effective 1-1-97]
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. The right to be present for sentencing may not be waived. State v. Koopmans, 210 W (2d) 671, 563 NW (2d) 528 (1997).
971.04 Annotation
Koopmans does not require rejecting the harmless error test for all violations of this section. State v. Peterson, 220 W (2d) 474, 584 NW (2d) 144 (Ct. App. 1998).
