1999 Chapter 971

971.08 Annotation A defendant is automatically prejudiced when the prosecutor materially and substantially breaches a plea agreement. New sentencing is required. State v. Smith, 207 Wis. 2d 259, 558 N.W.2d 379 (1997).

971.08 Annotation Requirements for accepting a no contest plea are discussed. State v. McKee, 212 Wis. 2d 488, 569 N.W.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 Wis. 2d 131, 569 N.W.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 that the plea was knowingly and intelligently made by clear and convincing evidence. State v. Van Camp, 213 Wis. 2d 131, 569 N.W.2d 582 (1998).

971.08 Annotation The unintentional misstatement of a plea agreement, promptly rectified by the efforts of both counsel, did not deny the defendant's due process right to have the full benefit of a relied upon plea bargain. State v. Knox, 213 Wis. 2d 318, 570 N.W.2d 599 (Ct. App. 1997)

971.08 Annotation The court's acceptance of a guilty plea and order to implement a diversion agreement, the successful completion of which would have resulted in dismissal of criminal charges, constituted "sentencing". The standard to be applied in deciding a motion to withdraw the guilty plea was the "manifest injustice" standard applicable to such motions after sentence has been entered. State v. Barney, 213 Wis. 2d 344, 570 N.W.2d 731 (Ct. App. 1997).

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 that 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 Wis. 2d 616, 579 N.W.2d 698 (1998).

971.08 Annotation In order for a plea to be knowingly and intelligently made 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 Wis. 2d 616, 579 N.W.2d 698 (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 Wis. 2d 214, 582 N.W.2d 460 (Ct. App. 1998).

971.08 Annotation A defendant's misunderstanding of his citizenship status did not render his plea not voluntarily, knowingly or intelligently entered. A defendant does not have a constitutional right to to be informed of the collateral consequences of the plea. There is no distinction between lack of awareness and an affirmative misunderstanding of a collateral consequence. State v. Rodriguez, 221 Wis. 2d 487, 585 N.W.2d 701 (Ct. App. 1998).

971.08 Annotation No manifest injustice entitling a defendant to withdraw a plea occurs when the defendant is not informed of a collateral consequence of the plea. That a conviction would result in the defendant's permanent prohibition from possessing firearms under federal law was a collateral consequence of his plea. A direct consequence must have an effect on the range of punishment for which the conviction is entered, and the firearms prohibition arises outside of the state court proceedings under which the plea is taken and sentence imposed. State v. Kosina, 226 Wis. 2d 482, 595 N.W.2d 464 (Ct. App. 1999).

971.08 Annotation The trial court did not have an obligation to verify the accuracy of the information contained in a guilty plea questionnaire when it did not rely on the incorrect information contained therein in conducting a personal colloquy with the defendant to describe the correct elements of the crime and insure that the defendant understood the nature of the crimes. State v. Brandt, 226 Wis. 2d 610, 594 N.W.2d 759 (1999).

971.08 Annotation It was not fatal to a conviction entered on a plea of no contest that the defendant did not personally state "I plead no contest" when the totality of the facts, including a signed guilty plea questionnaire and colloquy with the judge on the record, indicated an intent to plead no contest. State v. Burns, 226 Wis. 2d 762, 594 N.W.2d 799 (1999).

971.08 Annotation The purpose of the court inquiry under sub. (1) (b) as to basic facts is to protect a defendant who understands the charge and voluntarily pleads guilty but does not realize that the conduct does not actually fall within the statutory definition of the charge. The purpose is not to resolve factual disputes about what did or did not happen; that is for a trial, which the defendant is waiving the right to. State v. Merryfield, 229 Wis. 2d 52, 598 N.W.2d 251 (Ct. App. 1999).

971.08 Annotation A claim of insufficient factual basis for charging a crime survives a no contest plea and can be raised in a postconviction motion. State v. Higgs, 230 Wis. 2d 1, 601 N.W. 2d 653 (Ct. App. 1999).

971.08 Annotation Forms similar to the uniform traffic citation that are used as complaints to initiate criminal prosecutions in certain misdemeanor cases issued by the sheriff are sufficient to confer subject matter jurisdiction on the court, but any conviction that results from their use in the manner described in the opinion is null and void; ss. 968.02, 968.04, 971.01, 971.04, 971.05 and 971.08 are discussed. 63 Atty. Gen. 540.

971.08 Annotation Plea withdrawals before sentencing are subject to a liberal "fair and just" standard that facilitates the efficient administration of justice by reducing the number of appeals contesting the knowing and voluntariness of pleas. Reasons that have been considered fair and just are genuine misunderstanding of the plea's consequences, haste and confusion in entering the pleas and coercion on the part of trial counsel. State v. Shimek, 230 Wis. 2d 730, 601 N.W.2d 865 (Ct. App. 1999).

971.08 Annotation Because the state failed to provide the defendant with exculpatory evidence related to his confession to the police and because that failure caused the defendant to plead guilty, the defendant's post-sentencing motion to withdraw a guilty plea should have been granted. State v. Sturgeon, 231 Wis. 2d 487, 605 N.W.2d 589 (Ct. App. 1999).

971.08 Annotation The State did not violate the sentencing terms of a plea agreement by failing to recite the express terms of the sentencing recommendation and by reciting a less than neutral statement of the recommendation. State v. Hanson, 2000 WI App 10, 232 Wis. 2d 291, 605 N.W.2d.

971.08 Annotation A defendant should be freely allowed to withdraw a plea, prior to sentencing, for any fair and just reason, unless the prosecution will be substantially prejudiced. The state bears the burden of demonstrating substantial prejudice once a defendant has offered a fair and just reason for withdrawal of the plea. State v. Bollig, 2000 WI 6, 232 Wis. 2d 561, 605 N.W.2d 199.

971.08 Annotation If the court fails to establish a factual basis that the defendant admits constitutes the offense pleaded to, manifest injustice justifying withdrawal of a plea exists. A defendant is not required to personally articulate the specific facts that constitute the elements of the crime charged. All that is required is that the factual basis is developed on the record. State v. Thomas, 2000 WI 13, 232 Wis. 2d 714, 605 N.W.2d 836.

971.08 Annotation If the defendant understands before entering a plea that the trial court will not be bound by the prosecutor's sentence recommendation, the trial court's deviation from the recommendation does not result in manifest injustice. State v. Williams, 2000 WI 78, 236 Wis. 2d 293, 613 N.W.2d 132.

971.08 Annotation When the accused rejected a plea bargain on a misdemeanor charge and instead requested a jury trial, the prosecutor did not act vindictively in raising the charge to a felony. United States v. Goodwin, 457 U.S. 368 (1982).

971.08 Annotation The defendant's acceptance of the prosecutor's proposed plea bargain did not bar the prosecutor from withdrawing the offer. Mabry v. Johnson, 467 U.S. 504 (1984).

971.08 Annotation When a defendant knowingly entered a guilty plea and the state's evidence supported a conviction, the conviction was valid even though the defendant gave testimony inconsistent with the plea. Hansen v. Mathews, 424 F.2d 1205.

971.08 Annotation Following a guilty plea, the defendant could not raise a speedy trial issue. 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 was not error for the court to accept a plea before an amended complaint was filed when the 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 when 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 when the error was clerical. Peterson v. State, 54 Wis. 2d 370, 195 N.W.2d 837.

971.09 Annotation Effect of consolidation on repeater allegations is discussed. State v. Rachwal, 159 Wis. 2d 494, 465 N.W.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 Wis. 2d 39, 522 N.W.2d 530 (Ct. App. 1994).

971.09 Annotation Parole eligibility is not a statutorily or constitutionally necessary component of a valid plea colloquy in a case in which a life sentence is imposed. State v. Byrge, 225 Wis. 2d 702, 594 N.W.2d 388 (Ct. App. 1999).

971.095 971.095  Consultation with and notices to victim.

971.095(1) (1) In this section:

971.095(1)(a) (a) "District attorney" has the meaning given in s. 950.02 (2m).

971.095(1)(b) (b) "Victim" has the meaning given in s. 950.02 (4).

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.

971.10 971.10  Speedy trial.

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) (2) 

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) (3) 

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.

971.10(3)(b)3. 3. The interests of the victim, as defined in s. 950.02 (4).

971.10(3)(c) (c) No continuance under par. (a) may be granted because of general congestion of the court's calendar or the lack of diligent preparation or the failure to obtain available witnesses on the part of the state.

971.10(4) (4) Every defendant not tried in accordance with this section shall be discharged from custody but the obligations of the bond or other conditions of release of a defendant shall continue until modified or until the bond is released or the conditions removed.

971.10 History History: 1971 c. 40 s. 93; 1971 c. 46, 298; 1977 c. 187 s. 135; 1979 c. 34; 1993 a. 155; 1997 a. 181.

971.10 Annotation The federal court applied balancing test is applicable to review the exercise of a trial court's discretion on a request for the substitution of trial counsel, with the associated request for a continuance. Phifer v. State, 64 Wis. 2d 24, 218 N.W.2d 354.

971.10 Annotation A party requesting a continuance on grounds of surprise must show: (1) actual surprise from an unforeseeable development; (2) when surprise is caused by unexpected testimony, the probability of producing contradictory or impeaching evidence; and (3) resulting prejudice if the request is denied. Angus v. State, 76 Wis. 2d 191, 251 N.W.2d 28.

971.10 Annotation A delay of 84 days between a defendant's first court appearance and trial on misdemeanor traffic charges was not so inordinate as to raise a presumption of prejudice. State v. Mullis, 81 Wis. 2d 454, 260 N.W.2d 696.

971.10 Annotation A stay of proceedings caused by the state's interlocutory appeal stopped the running of the time period under sub. (2). State ex rel. Rabe v. Ferris, 97 Wis. 2d 63, 293 N.W.2d 151 (1980).

971.10 Annotation Following a guilty plea, the defendant could not raise a speedy trial issue. United States v. Gaertner, 583 F.2d 308 (1978).

971.105 971.105  Child victims and witnesses; duty to expedite proceedings. In all criminal and delinquency cases, juvenile fact-finding hearings under s. 48.31 and juvenile dispositional hearings involving a child victim or witness, as defined in s. 950.02, the court and the district attorney shall take appropriate action to ensure a speedy trial in order to minimize the length of time the child must endure the stress of the child's involvement in the proceeding. In ruling on any motion or other request for a delay or continuance of proceedings, the court shall consider and give weight to any adverse impact the delay or continuance may have on the well-being of a child victim or witness.

971.105 History History: 1983 a. 197; 1985 a. 262 s. 8; 1993 a. 98; 1995 a. 77.

971.11 971.11  Prompt disposition of intrastate detainers.

971.11(1) (1) Whenever the warden or superintendent receives notice of an untried criminal case pending in this state against an inmate of a state prison, the warden or superintendent shall, at the request of the inmate, send by certified mail a written request to the district attorney for prompt disposition of the case. The request shall state the sentence then being served, the date of parole eligibility, if applicable, or the date of release to extended supervision, the approximate discharge or conditional release date, and prior decision relating to parole. If there has been no preliminary examination on the pending case, the request shall state whether the inmate waives such examination, and, if so, shall be accompanied by a written waiver signed by the inmate.

971.11(2) (2) If the crime charged is a felony, the district attorney shall either move to dismiss the pending case or arrange a date for preliminary examination as soon as convenient and notify the warden or superintendent of the prison thereof, unless such examination has already been held or has been waived. After the preliminary examination or upon waiver thereof, the district attorney shall file an information, unless it has already been filed, and mail a copy thereof to the warden or superintendent for service on the inmate. The district attorney shall bring the case on for trial within 120 days after receipt of the request subject to s. 971.10.

971.11(3) (3) If the crime charged is a misdemeanor, the district attorney shall either move to dismiss the charge or bring it on for trial within 90 days after receipt of the request.

971.11(4) (4) If the defendant desires to plead guilty or no contest to the complaint or to the information served upon him or her, the defendant shall notify the district attorney thereof. The district attorney shall thereupon arrange for the defendant's arraignment as soon as possible and the court may receive the plea and pronounce judgment.

971.11(5) (5) If the defendant wishes to plead guilty to cases pending in more than one county, the several district attorneys involved may agree with the defendant and among themselves for all such pleas to be received in the appropriate court of one of such counties, and s. 971.09 shall govern the procedure thereon so far as applicable.

971.11(6) (6) The prisoner shall be delivered into the custody of the sheriff of the county in which the charge is pending for transportation to the court, and the prisoner shall be retained in that custody during all proceedings under this section. The sheriff shall return the prisoner to the prison upon the completion of the proceedings and during any adjournments or continuances and between the preliminary examination and the trial, except that if the department certifies a jail as being suitable to detain the prisoner, he or she may be detained there until the court disposes of the case. The prisoner's existing sentence continues to run and he or she receives time credit under s. 302.11 while in custody.

971.11(7) (7) If the district attorney moves to dismiss any pending case or if it is not brought on for trial within the time specified in sub. (2) or (3) the case shall be dismissed unless the defendant has escaped or otherwise prevented the trial, in which case the request for disposition of the case shall be deemed withdrawn and of no further legal effect. Nothing in this section prevents a trial after the period specified in sub. (2) or (3) if a trial commenced within such period terminates in a mistrial or a new trial is granted.

971.11 History History: 1983 a. 528; 1989 a. 31; 1993 a. 486; 1995 a. 48; 1997 a. 283.

971.11 Annotation A request for prompt disposition under this section must comply with sub. (1) in order to impose on the state the obligation to bring the case to trial within 120 days. State v. Adams, 207 Wis. 2d 566, 558 N.W.2d 923 (Ct. App. 1996).

971.12 971.12  Joinder of crimes and of defendants.

971.12(1) (1)  Joinder of crimes. Two or more crimes may be charged in the same complaint, information or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors, or both, are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan. When a misdemeanor is joined with a felony, the trial shall be in the court with jurisdiction to try the felony.

971.12(2) (2) Joinder of defendants. Two or more defendants may be charged in the same complaint, information or indictment if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting one or more crimes. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.

971.12(3) (3) Relief from prejudicial joinder. If it appears that a defendant or the state is prejudiced by a joinder of crimes or of defendants in a complaint, information or indictment or by such joinder for trial together, the court may order separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. The district attorney shall advise the court prior to trial if the district attorney intends to use the statement of a codefendant which implicates another defendant in the crime charged. Thereupon, the judge shall grant a severance as to any such defendant.

971.12(4) (4) Trial together of separate charges. The court may order 2 or more complaints, informations or indictments to be tried together if the crimes and the defendants, if there is more than one, could have been joined in a single complaint, information or indictment. The procedure shall be the same as if the prosecution were under such single complaint, information or indictment.

971.12 History History: 1993 a. 486.

971.12 Annotation If 2 defendants were charged and the cases consolidated, and one then pleads guilty, there is no need for a severance, especially if the trial is to the court. Nicholas v. State, 49 Wis. 2d 678, 183 N.W.2d 8.

971.12 Annotation Severance is not required where the 2 charges involving a single act or transaction are so inextricably intertwined so as to make proof of one crime impossible without proof of the other. Holmes v. State, 63 Wis. 2d 389, 217 N.W.2d 657.

971.12 Annotation Due process of law was not violated, nor did the trial court abuse its discretion, by denying the defendant's motion to sever 3 counts of sex offenses from a count of first-degree murder. Bailey v. State, 65 Wis. 2d 331, 222 N.W.2d 871.