971.08 Annotation
If the circuit court fails to establish a factual basis that the defendant admits to the offense pleaded to, manifest injustice occurs. The inquiry requirement of sub. (1) (b) allows the judge to establish the factual basis for the plea as the judge sees fit and does not require that the judge satisfy the defendant that he or she committed the crime. A factual basis may be found solely in a stipulation to the facts stated in the complaint. State v. Black, 2001 WI 31,
242 Wis. 2d 126,
624 N.W.2d 363.
971.08 Annotation
Once a court decides to accept a plea agreement, it cannot reverse its acceptance. State v. Terrill, 2001 WI App 70,
242 Wis. 2d 415,
625 N.W.2d 353.
971.08 Annotation
The clear and convincing evidence and close case rules do not apply in determining a breach of a plea agreement. Historical facts are reviewed with a clearly erroneous standard and whether the state's conduct was a substantial and material breach is a question of law. State v. Williams, 2002 WI 1,
249 Wis. 2d 492,
637 N.W.2d 733.
971.08 Annotation
A defendant has a constitutional right to have a negotiated plea bargain enforced, if it was relied on. A prosecutor is not required to enthusiastically advocate for a bargained for sentence and may inform the court about the character of the defendant, even if it is negative. The prosecutor may not personalize information presented in a way that indicates that the prosecutor has second thoughts about the agreement. State v. Williams, 2002 WI 1,
249 Wis. 2d 492,
637 N.W.2d 733.
971.08 Annotation
When a defendant repudiates a negotiated plea agreement on the ground that it contains multiplicitous counts, the defendant materially and substantially breaches the agreement. When the defendant successfully challenges the plea and a conviction on multiplicity grounds and the information has been amended pursuant to a negotiated plea agreement by which the state made charging concessions, ordinarily the remedy is to reverse the convictions and sentences, vacate the plea agreement, and reinstate the original information, but a different remedy may be appropriate. State v. Robinson, 2002 WI 9,
249 Wis. 2d 553,
638 N.W.2d 564.
971.08 Annotation
Generally, once counsel is appointed, the day-to-day conduct of the defense rests with the attorney. However, a defense attorney may not as a matter of trial strategy, admit a client's guilt, contrary to the client's not guilty plea, unless the defendant unequivocally understands and consents to the admission. State v. Gordon. 2002 WI App 53,
250 Wis. 2d 702,
641 N.W.2d 183.
971.08 Annotation
A plea agreement in which the prosecution agreed to make no specific sentencing recommendation was not breached by the prosecutors commenting that the case was, "if not the most serious case I've handled this year, it is certainly among the top two or three"and "this is one of the most serious non-fatal crimes that I have dealt with." State v. Richardson, 2001 WI App 152,
246 Wis. 2d 711,
632 N.W.2d 84.
971.08 Annotation
A valid plea requires only knowledge of the elements of the offense, not a knowledge of the nuances and descriptions of the elements. State v. Trochinski, 2002 WI 56,
253 Wis. 2d 38,
644 N.W.2d 891.
971.08 Annotation
Sub. (1) (c) is a clear directive to circuit courts commanding what the court must personally say to the defendant. That the language is in quotation marks indicates that the statute should be followed to the letter. If a circuit court fails to give the mandated advice and if the defendant moves the court and demonstrates that the plea is likely to result in the defendant's deportation, sub. (2) requires the court to vacate the conviction and permit the defendant to withdraw a guilty or no-contest plea. State v. Douangmala, 2002 WI 62,
253 Wis. 2d 173,
644 N.W.2d 891.
971.08 Annotation
Once a defendant enters a plea, an evidentiary hearing is necessary to determine whether a breach of a plea agreement has occurred before the state may be permitted to withdraw from it. When after entry of the plea and before sentencing the trial court warned that if the defendant "screwed up" while on bail, the state would be free to change its sentencing recommendation, which the defendant acknowledged and agreed to, there was an amendment of the plea agreement. The state did not withdraw from the agreement when, based on the defendant's subsequent misconduct, it recommended a harsher sentence than originally agreed to. State v. Zuniga, 2002 WI App 233,
257 Wis. 2d 625,
652 N.W.2d 423.
971.08 Annotation
In the absence of any attachments to a waiver of rights form or any other evidence in the record demonstrating that the defendant had knowledge of the elements of the offense charged, coupled with the trial court's failure to ascertain the defendant's understanding of the elements during the plea colloquy, the defendant made a prima facie showing that the colloquy failed to meet the requirements of sub. (1) (a) and Bangert. State v. Lange, 2003 WI App 2,
259 Wis. 2d 774,
656 N.W.2d 480,
01-2584.
971.08 Annotation
The district attorney's contact with the division of community corrections to complain about a presentence investigation sentence recommendation, which resulted in a change in recommendation from probation to incarceration, breached the plea agreement in which the district attorney's office agreed to make no sentence recommendation. State v. Howland, 2003 WI App 104,
264 Wis. 2d 279,
663 N.W.2d 340,
02-2083.
971.08 Annotation
When in closing argument counsel concedes guilt on a lesser count in a multiple-count case, in light of overwhelming evidence on that count and in an effort to gain credibility and win acquittal on the other charges, the concession is a reasonable tactical decision and counsel is not deemed to have been constitutionally ineffective by admitting a client's guilt contrary to the client's plea of not guilty. State v. Gordon, 2003 WI 69,
262 Wis. 2d 380,
663 N.W.2d 765,
01-1679.
971.08 Annotation
Judicial participation in the bargaining process raises a conclusive presumption that the plea was involuntary. Judicial participation in plea negotiations before a plea agreement has been reached is barred. State v. Williams, 2003 WI App 116,
265 Wis. 2d 229,
666 N.W.2d 58,
02-1651.
971.08 Annotation
Defendant's automatic ineligibility for Medicare and Medicaid benefits as the result of a drug trafficking conviction imposed by operation of federal law by a federal tribunal was a collateral consequence of the defendant's guilty plea and was not grounds for plea withdrawal. State v. Merten, 2003 WI App 171,
266 Wis. 2d 588,
668 N.W.2d 750,
02-1530.
971.08 Annotation
There is compliance with Bangert as long as there is a record that the defendant was present when rights were given en masse and was personally questioned by the court to establish that he or she understood the rights, had no questions, and waived those rights. State v. Stockland, 2003 WI App 177,
266 Wis. 2d 549,
668 N.W.2d 810,
02-2129.
971.08 Annotation
When discussing a plea recommendation, the state may not give a less than neutral recitation of the agreement's terms. Reference to the plea agreement was not less than neutral when the prosecutor agreed with the presentence report that the defendant needed to be incarcerated, without commenting on the sentence recommendation in the report. State v. Stenseth, 2003 WI App 198,
266 Wis. 2d 959,
669 N.W.2d 776,
02-3330.
971.08 Annotation
The defendant's due process rights were violated when the investigating detective in the case gave a sentencing recommendation, written on police department letterhead, that undermined the state's plea bargained recommendation, in effect breaching the plea agreement. when the circuit court had also forwarded the letter to the presentence investigation writer to assess and evaluate. State v. Matson, 2003 WI App 253,
268 Wis. 2d 725,
674 N.W.2d 51,
03-0251.
971.08 Annotation
Douangmala does not apply to defendants whose cases were final before Douangmala was issued. State v. Lagundoye, 2004 WI 4,
268 Wis. 2d 77,
674 N.W.2d 526,
02-2137.
971.08 Annotation
The prosecution may discuss negative facts about the defendant in order to justify a recommended sentence within the parameters of a plea agreement. A defendant is entitled to a neutral recitation of the terms of the plea agreement. The prosecutor may not overtly or covertly convey to the court that a sentence harsher than that recommended is warranted, but the state is not obligated to say something nice or positive about the defendant in order to avoid breaching a plea agreement. State v. Naydihor, 2004 WI 43,
270 Wis. 2d 585,
678 N.W.2d 220,
01-3093.
971.08 Annotation
A defendant breached plea agreements entered in previous completed cases for which he had already served the sentences by collaterally attacking those convictions in a subsequent case in which they were found invalid for penalty enhancement purposes. State v. Deilke, 2004 WI 104, ___ Wis. 2d ___, ___ N.W.2d ___,
02-2898.
971.08 Annotation
If the court is aware of a plea agreement, the court must advise the defendant personally that the court is not bound by the terms of that agreement and ascertain that the defendant understands this information. When the defendant shows that the court failed to inform the defendant that it was not bound by the plea agreement, and the defendant alleges that he did not understand that the court was not bound, the defendant is entitled to an evidentiary hearing on a motion to withdraw the plea. State v. Hampton, 2004 WI 107, ___ Wis. 2d ___, ___ N.W.2d ___,
01-0509.
971.08 Annotation
At sentencing, pertinent factors relating to the defendant's character and behavioral pattern cannot be immunized by a plea agreement between the defendant and the state. A plea agreement that does not allow the sentencing court to be apprised of relevant information is void as against public policy. The fact that the prosecutor's comments were compelling and delivered by strong words does not transform the commentary into a plea bargain violation. State v. Jackson, 2004 WI App 132, ___ Wis. 2d ___, ___ N.W.2d ___,
03-1805.
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 (1970).
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 did 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 did not deprive the court of jurisdiction. Failure of a district attorney to specifically consent to one offense did not invalidate the procedure when the error was clerical. Peterson v. State,
54 Wis. 2d 370,
195 N.W.2d 837 (1972).
971.09 Annotation
Although the statute requires a plea of guilty to both the primary case and the case being consolidated, it is a logical extension to allow the defendant to ask for the consolidation of a case from another county to which a guilty plea has been entered with a case in which guilt was found by the court. 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. If 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).
971.095
971.095
Consultation with and notices to victim. 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(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)(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)(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)(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 Annotation
A 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 (1977).
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 (1978).
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.
971.11
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 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 568,
558 N.W.2d 923 (Ct. App. 1996).
971.11 Annotation
Whether dismissal under sub. (7) is with or without prejudice is within the court's discretion. State v. Davis, 2001 WI 136,
248 Wis. 2d 986,
637 N.W.2d 62.
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 (1971).
971.12 Annotation
Severance is not required if 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 (1974).
