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).
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.
971.08(3)
(3) Any plea of guilty which is not accepted by the court or which is subsequently permitted to be withdrawn shall not be used against the defendant in a subsequent action.
971.08 Annotation
A court can consider defendant's record of juvenile offenses at a hearing on his guilty pleas prior to sentencing. McKnight v. State, 49 W (2d) 623, 182 NW (2d) 291.
971.08 Annotation
When a plea agreement contemplates the nonprosecution of uncharged offenses the details of the plea agreement should be made a matter of record, whether it involves a recommendation of sentencing, a reduced charge, a nolle prosequi of charges, or "read ins" with an agreement of immunity, and a "read-in" agreement made after conviction or as part of a post-plea-of-guilty hearing to determine the voluntariness and accuracy of the plea should be a part of the sentencing hearing and made a matter of record. Austin v. State, 49 W (2d) 727, 183 NW (2d) 56.
971.08 Annotation
A defendant may not withdraw a guilty plea simply because he did not specifically waive all of his constitutional rights, if the record shows he understood what rights he was waiving by the plea. After a plea of guilty the hearing as to the factual basis for the plea need not produce competent evidence which will satisfy the criminal burden of proof. Edwards v. State, 51 W (2d) 231, 186 NW (2d) 193.
971.08 Annotation
It is sufficient for a court to inform a defendant charged with several offenses of the maximum penalty which could be imposed for each. The phrase "in connection with his appearance" as it appears in the guilty plea guidelines of the Burnett and Ernst cases should be deleted. Burkhalter v. State, 52 W (2d) 413, 190 NW (2d) 502.
971.08 Annotation
A desire to avoid a possible life sentence by pleading guilty to a lesser charge does not alone render the plea involuntary. A claimed inability to remember does not require refusal of the plea where the evidence is clear that defendant committed the crime. State v. Herro, 53 W (2d) 211, 191 NW (2d) 889.
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).
