971.02 Annotation
A preliminary hearing to determine probable cause for detention pending further proceedings is not a "critical stage" in a prosecution requiring appointed counsel. Gerstein v. Pugh,
420 U.S. 103 (1975).
971.02 Annotation
Preliminary examination potential. 58 MLR 159.
971.02 Annotation
The grand jury in Wisconsin. Coffey, Richards, 58 MLR 518.
971.025(1)(1) In all criminal actions and proceedings and actions and proceedings under chapters 48 and 938 in circuit court, the parties and court officials shall use the standard court forms adopted by the judicial conference under
s. 758.18, commencing the date on which the forms are adopted.
971.025(2)
(2) A party or court official may supplement a standard court form with additional material.
971.025(3)
(3) A court may not dismiss a case, refuse a filing or strike a pleading for failure of a party to use a standard court form or to follow the format rules but shall require the party to submit, within 10 days, a corrected form and may impose statutory fees or costs or both.
971.025(4)
(4) If the judicial conference does not create a standard court form for an action or pleading undertaken by a party or court official, the party or court official may use a format consistent with any statutory or court requirement for the action or pleading.
971.025 History
History: Sup. Ct. Order No.
98-01, 228 Wis. 2d xiii (2000).
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 attempt is sufficient if it alleges the attempt plus the elements of the attempted crime. Wilson v. State,
59 Wis. 2d 269,
208 N.W.2d 134.
971.03 Annotation
When a victim's name was correctly spelled in the complaint but wrong on the information, the variance was immaterial. State v. Bagnall,
61 Wis. 2d 297,
212 N.W.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,
974.06, or
974.07. If the defendant is not present, the time for appeal from any order under
ss. 974.02,
974.06, and
974.07 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 Wis. 2d xix (1986);
1993 a. 486; Sup. Ct. Order No.
96-08, 207 Wis. 2d xv (1997);
2001 a. 16.
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
The court erred in resentencing the defendant without notice after imposition of a previously ordered invalid sentence. State v. Upchurch,
101 Wis. 2d 329,
305 N.W.2d 57 (1981).
971.04 Annotation
If the court is put on notice that the accused has a language difficulty, the court must make a factual determination of whether an interpreter is necessary. If so, the accused must be made aware of the right to an interpreter, at public cost if the accused is indigent. A waiver of the right must be made voluntarily in open court on the record. State v. Neave,
117 Wis. 2d 359,
344 N.W.2d 181 (1984).
971.04 Annotation
Sub. (2) allows entry of a plea to a misdemeanor by an attorney without the defendant being present, but for a guilty or no contest plea all requirements of s. 971.08, except attendance, must be met. State v. Krause,
161 Wis. 2d 919,
469 N.W.2d 241 (Ct. App. 1991).
971.04 Annotation
Sub. (1) does not encompass a postconviction evidentiary hearing. State v. Vennemann,
180 Wis. 2d 81,
508 N.W.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 Wis. 2d 826,
512 N.W.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 Wis. 2d 726,
528 N.W.2d 434 (Ct. App. 1994).
971.04 Annotation
A trial begins under sub. (3) occurs when jeopardy attaches, which is when the jury is sworn. State v. Miller,
197 Wis. 2d 518,
541 N.W.2d 153 (Ct. App. 1995),
95-0129.
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 Wis. 2d 210,
546 N.W.2d 501 (Ct. App. 1996),
95-0881.
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 Wis. 2d 671,
563 N.W.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 Wis. 2d 474,
584 N.W.2d 144 (Ct. App. 1998).
971.04 Annotation
Deprivation of the right to be present and to have counsel present at jury selection is subject to a harmless error analysis; there is a thin line between when reversal is warranted and when it is not. That a juror's subjective bias is generally ascertained by that person's responses at voir dire and that the interplay between potential jurors and a defendant is both immediate and continuous are factors that weigh against finding harmless error. State v. Harris,
229 Wis. 2d 832,
601 N.W.2d 682 (Ct. App. 1999).
971.04 Annotation
A violation of sub. (1) does not automatically translate into a constitutional violation. The entry of a plea from jail by closed circuit tv, while a violation of the statute, does not violate due process absent a showing of coercion, threat, or other unfairness. State v. Peters, 2000 WI App 154,
237 Wis. 2d 741,
615 N.W.2d 655. But see also 2001 WI 74,
244 Wis. 2d 470,
628 N.W.2d 797.
971.04 Annotation
The correction of a clerical error in the sentence portion of a written judgment to reflect accurately an oral pronouncement of sentence is not the pronouncement or imposition of a sentence under sub. (1) (g) and does not mandate the offender's presence when the error is corrected. State v. Prihoda, 2000 WI 123,
239 Wis. 2d 244,
618 N.W.2d 857.
971.04 Annotation
Excusing and deferring prospective jurors under s. 756.03 is one component of a circuit judge's obligation to administer the jury system. The judge may delegate the authority to the clerk of circuit court under s. 756.03(3), may be handled administratively, need not be handled by a judge, in court, or with the prospective juror present in person, and may take place well in advance of a particular trial. The defendant's presence cannot be required when the judge or clerk is acting in an administrative capacity. State v. Gribble, 2001 WI App 227,
248 Wis. 2d 409,
636 N.W.2d 488.
971.04 Annotation
Although it was error for the court to interview potential jurors outside of the presence of the prosecution, defendant, and defense counsel, the error was harmless when there was no showing that it contributed to the defendant's conviction. State v. Tulley, 2001 WI App 236,
248 Wis. 2d 505,
635 N.W.2d 807.
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
When through oversight, an arraignment is not held, it may be conducted after both parties had rested during the trial. Bies v. State,
53 Wis. 2d 322,
193 N.W.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 Wis. 2d 129,
496 N.W.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 Wis. 2d 129,
496 N.W.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 Wis. 2d 213,
531 N.W.2d 332 (Ct. App. 1995).
971.06 Annotation
The decision to withdraw a not guilty by reason of mental defect plea belongs to the defendant, and not counsel. State v. Byrge,
225 Wis. 2d 702,
594 N.W.2d 388 (Ct. App. 1999).
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 a defendant's record of juvenile offenses at a hearing on his guilty pleas prior to sentencing. McKnight v. State,
49 Wis. 2d 623,
182 N.W.2d 291 (1971).
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. 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 Wis. 2d 727,
183 N.W.2d 56 (1971).
971.08 Annotation
A defendant may not withdraw a guilty plea simply because he or she did not specifically waive all of his constitutional rights if the record shows that the defendant understood what rights were waived by the plea. After a guilty plea, the hearing on the factual basis for the plea need not produce competent evidence that satisfies the criminal burden of proof. Edwards v. State,
51 Wis. 2d 231,
186 N.W.2d 193 (1971).
971.08 Annotation
It is sufficient for a court to inform a defendant charged with several offenses of the maximum penalty that could be imposed for each. Burkhalter v. State,
52 Wis. 2d 413,
190 N.W.2d 502 (1971).
971.08 Annotation
A desire to avoid a possible life sentence by pleading guilty to a lesser charge does not alone render a plea involuntary. A claimed inability to remember does not require refusal of the plea if the evidence is clear that the defendant committed the crime. State v. Herro,
53 Wis. 2d 211,
191 N.W.2d 889 (1971).
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. 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 is not obliged to dismiss the action because of refusal to accept the guilty plea. Johnson v. State,
53 Wis. 2d 787,
193 N.W.2d 659 (1972).
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 sentencing; it is discretionary if made thereafter and need not be granted if the record refutes the allegations. The defendant must raise a substantial issue of fact. Nelson v. State,
54 Wis. 2d 489,
195 N.W.2d 629 (1972).
971.08 Annotation
If 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 Wis. 2d 723,
201 N.W.2d 25 (1972).
