971.29 Annotation
The variance is not material where the court amended the charge against the defendant to charge a lesser included crime. Moore v. State, 55 W (2d) 1, 197 NW (2d) 820.
971.29 Annotation
Sub. (2), in regard to amendments after verdict, applies only to technical variances in the complaint, not material to the merits of the action. It may not be used to substitute a new charge. State v. Duda, 60 W (2d) 431, 210 NW (2d) 763.
971.29 Annotation
The refusal of a proposed amendment of an information has no effect on the original information. An amendment to charge a violation of a substantive section as well as a separate penalty section is not prejudicial to a defendant. Wagner v. State, 60 W (2d) 722, 211 NW (2d) 449.
971.29 Annotation
Sub. (1) does not prohibit amendment of the information with leave of court after arraignment but before trial provided defendant's rights are not prejudiced. Whitaker v. State, 83 W (2d) 368, 265 NW (2d) 575 (1978).
971.29 Annotation
Failure of the state to obtain court permission to file a post-arraignment amended information did not deprive the court of subject matter jurisdiction. State v. Webster, 196 W (2d) 308, 538 NW (2d) 810 (Ct. App. 1995).
971.29 Annotation
The trial court cannot after trial amend a charge of sexual intercourse with a child to one of contributing to the delinquency of a minor since the offenses require proof of different facts and defendant is entitled to notice of the charge against him. LaFond v. Quatsoe, 325 F Supp. 1010.
971.30(1)(1) ``Motion" means an application for an order.
971.30(2)
(2) Unless otherwise provided or ordered by the court, all motions shall meet the following criteria:
971.30(2)(b)
(b) Contain a caption setting forth the name of the court, the venue, the title of the action, the file number, a denomination of the party seeking the order or relief and a brief description of the type of order or relief sought.
971.30(2)(c)
(c) State with particularity the grounds for the motion and the order or relief sought.
971.30 History
History: Sup. Ct. Order, 171 W (2d) xix (1992).
971.31
971.31
Motions before trial. 971.31(1)
(1) Any motion which is capable of determination without the trial of the general issue may be made before trial.
971.31(2)
(2) Except as provided in
sub. (5), defenses and objections based on defects in the institution of the proceedings, insufficiency of the complaint, information or indictment, invalidity in whole or in part of the statute on which the prosecution is founded, or the use of illegal means to secure evidence shall be raised before trial by motion or be deemed waived. The court may, however, entertain such motion at the trial, in which case the defendant waives any jeopardy that may have attached. The motion to suppress evidence shall be so entertained with waiver of jeopardy when it appears that the defendant is surprised by the state's possession of such evidence.
971.31(3)
(3) The admissibility of any statement of the defendant shall be determined at the trial by the court in an evidentiary hearing out of the presence of the jury, unless the defendant, by motion, challenges the admissibility of such statement before trial.
971.31(4)
(4) Except as provided in
sub. (3), a motion shall be determined before trial of the general issue unless the court orders that it be deferred for determination at the trial. All issues of fact arising out of such motion shall be tried by the court without a jury.
971.31(5)(a)(a) Motions before trial shall be served and filed within 10 days after the initial appearance of the defendant in a misdemeanor action or 10 days after arraignment in a felony action unless the court otherwise permits.
971.31(5)(b)
(b) In felony actions, motions to suppress evidence or motions under
s. 971.23 or objections to the admissibility of statements of a defendant shall not be made at a preliminary examination and not until an information has been filed.
971.31(5)(c)
(c) In felony actions, objections based on the insufficiency of the complaint shall be made prior to the preliminary examination or waiver thereof or be deemed waived.
971.31(6)
(6) If the court grants a motion to dismiss based upon a defect in the indictment, information or complaint, or in the institution of the proceedings, it may order that the defendant be held in custody or that the defendant's bail be continued for not more than 72 hours pending issuance of a new summons or warrant or the filing of a new indictment, information or complaint.
971.31(7)
(7) If the motion to dismiss is based upon a misnomer, the court shall forthwith amend the indictment, information or complaint in that respect, and require the defendant to plead thereto.
971.31(8)
(8) No complaint, indictment, information, process, return or other proceeding shall be dismissed or reversed for any error or mistake where the case and the identity of the defendant may be readily understood by the court; and the court may order an amendment curing such defects.
971.31(9)
(9) A motion required to be served on a defendant may be served upon the defendant's attorney of record.
971.31(10)
(10) An order denying a motion to suppress evidence or a motion challenging the admissibility of a statement of a defendant may be reviewed upon appeal from a judgment of conviction notwithstanding the fact that such judgment was entered upon a plea of guilty.
971.31(11)
(11) In actions under
s. 940.225,
948.02,
948.025 or
948.095, evidence which is admissible under
s. 972.11 (2) must be determined by the court upon pretrial motion to be material to a fact at issue in the case and of sufficient probative value to outweigh its inflammatory and prejudicial nature before it may be introduced at trial.
971.31(12)
(12) In actions under
s. 940.22, the court may determine the admissibility of evidence under
s. 972.11 only upon a pretrial motion.
971.31(13)(a)(a) A juvenile over whom the court has jurisdiction under
s. 938.183 (1) (b) or
(c) on a misdemeanor action may make a motion before trial to transfer jurisdiction to the court assigned to exercise jurisdiction under
chs. 48 and
938.The motion may allege that the juvenile did not commit the violation under the circumstances described in
s. 938.183 (1) (b) or
(c), whichever is applicable, or that transfer of jurisdiction would be appropriate because of all of the following:
971.31(13)(a)1.
1. If convicted, the juvenile could not receive adequate treatment in the criminal justice system.
971.31(13)(a)2.
2. Transferring jurisdiction to the court assigned to exercise jurisdiction under
chs. 48 and
938 would not depreciate the seriousness of the offense.
971.31(13)(a)3.
3. Retaining jurisdiction is not necessary to deter the juvenile or other juveniles from committing the violation of which the juvenile is accused under the circumstances specified in
s. 938.183 (1) (b) or
(c), whichever is applicable.
971.31(13)(b)
(b) The court shall retain jurisdiction unless the juvenile proves by a preponderance of the evidence that he or she did not commit the violation under the circumstances described in
s. 938.183 (1) (b) or
(c), whichever is applicable, or that transfer would be appropriate because all of the factors specified in
par. (a) 1.,
2. and
3. are met.
971.31 Annotation
Where defendant made a pro se motion before trial to suppress evidence of identification at a lineup, but trial counsel refused to pursue the motion for strategic reasons, this amounts to a waiver of the motion. State v. McDonald, 50 W (2d) 534, 184 NW (2d) 886.
971.31 Annotation
A claim of illegal arrest for lack of probable cause must be raised by motion before trial. Lampkins v. State, 51 W (2d) 564, 187 NW (2d) 164.
971.31 Annotation
The waiver provision in sub. (2) is constitutional. Day v. State, 52 W (2d) 122, 187 NW (2d) 790.
971.31 Annotation
A defendant is not required to make a motion to withdraw his plea to preserve his right to a review of an alleged error of refusal to suppress evidence. State v. Meier, 60 W (2d) 452, 210 NW (2d) 685.
971.31 Annotation
Motion to suppress statements on the ground they were products of an allegedly improper arrest, was timely, notwithstanding failure to assert that challenge prior to appearance in court at arraignment, since it was made after information was filed and prior to trial. Rinehart v. State, 63 W (2d) 760, 218 NW (2d) 323.
971.31 Annotation
Request for Goodchild hearing after direct testimony is concluded is not timely under (2). Coleman v. State, 64 W (2d) 124, 218 NW (2d) 744.
971.31 Annotation
The rule in (2) does not apply to confessions, because (2) is qualified by (3) and (4). Upchurch v. State, 64 W (2d) 553, 219 NW (2d) 363.
971.31 Annotation
Challenge to the search of his person cannot be raised for the first time on appeal. Madison v. State, 64 W (2d) 564, 219 NW (2d) 259.
971.31 Annotation
Defendant's right to testify at Goodchild hearing may be curtailed only for the most compelling reasons. Franklin v. State, 74 W (2d) 717, 247 NW (2d) 721.
971.31 Annotation
See note to 345.11, citing State v. Mudgett, 99 W (2d) 525, 299 NW (2d) 621 (Ct. App. 1980).
971.31 Annotation
Sub. (6) authorizes court to hold defendant in custody or on bail for 72 hours pending new proceedings. State ex rel. Brockway v. Milwaukee Cty. Cir. Ct. 105 W (2d) 341, 313 NW (2d) 845 (Ct. App. 1981).
971.31 Annotation
See note to art. I, sec. 8, citing State v. Anastas, 107 W (2d) 270, 320 NW (2d) 15 (Ct. App. 1982).
971.31 Annotation
By pleading guilty, defendant waived right to appeal trial court's ruling on admissibility of other crimes evidence. State v. Nelson, 108 W (2d) 698, 324 NW (2d) 292 (Ct. App. 1982).
971.31 Annotation
Finding of not guilty by reason of mental disease or defect is judgment of conviction under 972.13 (1) and thus 971.31 (10) is applicable. State v. Smith, 113 W (2d) 497, 335 NW (2d) 376 (1983).
971.31 Annotation
Sub. (10) does not apply to civil forfeiture cases. County of Racine v. Smith, 122 W (2d) 431, 362 NW (2d) 439 (Ct. App. 1984).
971.31 Annotation
See note to 972.11, citing State v. DeSantis, 155 W (2d) 774, 456 NW (2d) 600 (1990).
971.31 Annotation
When defendant pleads guilty then appeals the denial of a suppression motion under sub. (10) the harmless error rule may not be applied where a motion to suppress was erroneously denied. State v. Pounds, 176 W (2d) 315, NW (2d) (Ct. App. 1993).
971.31 Annotation
Sub. (10) is inapplicable where the statement sought to be suppressed has no possible relevance to the charge to which the defendant pled guilty. State v. Pozo, 198 W (2d) 706, 544 NW (2d) 228 (Ct. App. 1995).
971.31 Annotation
Press and public have no constitutional right to attend pretrial suppression hearing where defendant demands closed hearing to avoid prejudicial publicity. Gannett Co. v. DePasquale, 443 US 368 (1979).
971.315
971.315
Inquiry upon dismissal. Before a court dismisses a criminal charge against a person, the court shall inquire of the district attorney whether he or she has complied with
s. 971.095 (2).
971.315 History
History: 1997 a. 181.
971.32
971.32
Ownership, how alleged. In an indictment, information or complaint for a crime committed in relation to property, it shall be sufficient to state the name of any one of several coowners, or of any officer or manager of any corporation, limited liability company or association owning the same.
971.32 History
History: 1993 a. 112,
491.
971.33
971.33
Possession of property, what sufficient. In the prosecution of a crime committed upon or in relation to or in any way affecting real property or any crime committed by stealing, damaging or fraudulently receiving or concealing personal property, it is sufficient if it is proved that at the time the crime was committed either the actual or constructive possession or the general or special property in any part of such property was in the person alleged to be the owner thereof.
971.34
971.34
Intent to defraud. Where the intent to defraud is necessary to constitute the crime it is sufficient to allege the intent generally; and on the trial it shall be sufficient if there appears to be an intent to defraud the United States or any state or any person.
971.36
971.36
Theft; pleading and evidence; subsequent prosecutions. 971.36(1)(1) In any criminal pleading for theft, it is sufficient to charge that the defendant did steal the property (describing it) of the owner (naming the owner) of the value of (stating the value in money).
971.36(2)
(2) Any criminal pleading for theft may contain a count for receiving the same property and the jury may find all or any of the persons charged guilty of either of the crimes.
971.36(3)
(3) In any case of theft involving more than one theft, all thefts may be prosecuted as a single crime if:
971.36(3)(a)
(a) The property belonged to the same owner and the thefts were committed pursuant to a single intent and design or in execution of a single deceptive scheme;
971.36(3)(b)
(b) The property belonged to the same owner and was stolen by a person in possession of it; or
971.36(3)(c)
(c) The property belonged to more than one owner and was stolen from the same place pursuant to a single intent and design.
971.36(4)
(4) In any case of theft involving more than one theft but prosecuted as a single crime, it is sufficient to allege generally a theft of property to a certain value committed between certain dates, without specifying any particulars. On the trial, evidence may be given of any such theft committed on or between the dates alleged; and it is sufficient to maintain the charge and is not a variance if it is proved that any property was stolen during such period. But an acquittal or conviction in any such case does not bar a subsequent prosecution for any acts of theft on which no evidence was received at the trial of the original charge. In case of a conviction on the original charge on a plea of guilty or no contest, the district attorney may, at any time before sentence, file a bill of particulars or other written statement specifying what particular acts of theft are included in the charge and in that event conviction does not bar a subsequent prosecution for any other acts of theft.
971.36 History
History: 1993 a. 486.
971.365
971.365
Crimes involving certain controlled substances. 971.365(1)(a)(a) In any case under
s. 961.41 (1) (cm),
(d),
(e),
(f),
(g) or
(h) involving more than one violation, all violations may be prosecuted as a single crime if the violations were pursuant to a single intent and design.
971.365(1)(b)
(b) In any case under
s. 961.41 (1m) (cm),
(d),
(e),
(f),
(g) or
(h) involving more than one violation, all violations may be prosecuted as a single crime if the violations were pursuant to a single intent and design.
971.365(1)(c)
(c) In any case under
s. 961.41 (3g) (a) 2.,
(c),
(d) or
(e) involving more than one violation, all violations may be prosecuted as a single crime if the violations were pursuant to a single intent and design.
971.365(2)
(2) An acquittal or conviction under
sub. (1) does not bar a subsequent prosecution for any acts in violation of
s. 961.41 (1) (cm),
(d),
(e),
(f),
(g) or
(h),
(1m) (cm),
(d),
(e),
(f),
(g) or
(h) or
(3g) (a) 2.,
(c),
(d) or
(e) on which no evidence was received at the trial on the original charge.
971.37
971.37
Deferred prosecution programs; domestic abuse. 971.37(1)(b)
(b) Is nearer of kin to the alleged victim than a 2nd cousin;
971.37(1)(c)
(c) Is a guardian or legal custodian of the minor; or
971.37(1)(d)
(d) Is or appears to be in a position of power or control over the minor.
971.37(1m)(a)(a) The district attorney may enter into a deferred prosecution agreement under this section with any of the following:
971.37(1m)(a)2.
2. An adult accused of or charged with a criminal violation of
s. 940.19,
940.20 (1m),
940.201,
940.225,
940.23,
940.285,
940.30,
940.42,
940.43,
940.44,
940.45,
940.48,
941.20,
941.30,
943.01,
943.011,
943.14,
943.15,
946.49,
947.01,
947.012 or
947.0125 and the conduct constituting the violation involved an act by the adult person against his or her spouse or former spouse, against an adult with whom the adult person resides or formerly resided or against an adult with whom the adult person has created a child.
971.37(1m)(b)
(b) The agreement shall provide that the prosecution will be suspended for a specified period if the person complies with conditions specified in the agreement. The agreement shall be in writing, signed by the district attorney or his or her designee and the person, and shall provide that the person waives his or her right to a speedy trial and that the agreement will toll any applicable civil or criminal statute of limitations during the period of the agreement, and, furthermore, that the person shall file with the district attorney a monthly written report certifying his or her compliance with the conditions specified in the agreement. The district attorney shall provide the spouse of the accused person and the alleged victim or the parent or guardian of the alleged victim with a copy of the agreement.
