971.20 Note Former s. 971.20, 1979 stats., is not unconstitutional. State v. Holmes, 106 Wis. 2d 31, 315 N.W.2d 703 (1982).

971.20 Annotation When an appellate court remands for the exercise of discretion in ordering restitution, it has not remanded for a sentencing proceeding, and the defendant is not entitled to substitution under sub. (7). State v. Foley, 153 Wis. 2d 748, 451 N.W.2d 796 (Ct. App. 1989).

971.20 Annotation When an initial appearance is conducted before the judge assigned to hear the matter, strict application of the filing deadline is appropriate. When the intake system does not provide adequate notice of the assigned judge prior to arraignment, deadlines are relaxed to allow the defendant to intelligently exercise the right. State ex rel. Tinti v. Circuit Court, 159 Wis. 2d 783, 464 N.W.2d 853 (Ct. App. 1990). But see State ex rel. Davis v. Circuit Court, 2024 WI 14, 411 Wis. 2d 123, 4 N.W.3d 273, 22-1999.

971.20 Annotation Once a judge is substituted, that judge may only act in the case as specified in sub. (9). Understandable inadvertent appearance before the substituted judge is not a waiver of the substitution. State v. Austin, 171 Wis. 2d 251, 490 N.W.2d 780 (Ct. App. 1992).

971.20 Annotation When a case is assigned to a newly appointed judge prior to the appointee’s taking the judicial oath, the time limit to request a substitution commences on the date the appointee becomes a judge. State ex rel. Strong v. Circuit Court, 184 Wis. 2d 223, 516 N.W.2d 451 (Ct. App. 1994).

971.20 Annotation There is no “trial court” under sub. (4) until after a bindover. A motion to reduce bail prior to the bindover was not a motion to the trial court that prevented filing a request for substitution. State ex rel. Mace v. Circuit Court, 193 Wis. 2d 208, 532 N.W.2d 720 (1995).

971.20 Annotation A defendant who is charged jointly with another defendant may not obtain substitution of a judge under sub. (6) when the codefendant is not yet before the court. Sub. (6) applies in all multiple defendant actions when a codefendant is unavailable to join or refuses to join a substitution request. State ex rel. Garibay v. Circuit Court, 2002 WI App 164, 256 Wis. 2d 438, 647 N.W.2d 455, 02-0952.

971.20 Annotation There is no requirement under this section that a judge inform a defendant of the right to substitute a judge or that a judge provide facts bearing on a defendant’s exercise of the right. State v. Tappa, 2002 WI App 303, 259 Wis. 2d 402, 655 N.W.2d 223, 02-0247.

971.20 Annotation When the original judge assigned to a case is later reassigned back to the case, the original judge is not a “new judge” under sub. (5), but remains the judge “originally assigned” under sub. (4). The reassignment does not create a second opportunity to substitute the original judge. State v. Bohannon, 2013 WI App 87, 349 Wis. 2d 368, 835 N.W.2d 262, 12-1691.

971.20 Annotation When the defendant persisted with a substitution request throughout the proceedings and did not follow the procedure under sub. (11) for abandoning the substitution request, the circuit court erred in presiding over the defendant’s trial, sentencing, and postconviction motions. Harmless error analysis did not apply. State v. Harrison, 2015 WI 5, 360 Wis. 2d 246, 858 N.W.2d 372, 13-0298.

971.20 Annotation Under the unique circumstances in this case, when a defendant followed a circuit court’s instruction to defer filing a request for substitution of a judge until after counsel was appointed, strict compliance with the 20-day deadline for filing a request for substitution after remittitur was not warranted. Although the substitution motion was not timely filed under the statute, it was timely filed in this case because the circuit court in essence extended the deadline until after trial counsel was appointed. State v. Zimbal, 2017 WI 59, 375 Wis. 2d 643, 896 N.W.2d 327, 15-1292.

971.20 Annotation A request for substitution of judge under sub. (7) must be filed in writing with the circuit court. State v. Zimbal, 2017 WI 59, 375 Wis. 2d 643, 896 N.W.2d 327, 15-1292.

971.20 Annotation An untimely request for a substitution of a judge under this section may be considered timely when a government-created obstacle prevents a defendant from meeting the statutory deadline. State ex rel. Davis v. Circuit Court, 2024 WI 14, 411 Wis. 2d 123, 4 N.W.3d 273, 22-1999.

971.22 971.22 Change of place of trial.

971.22(1) (1) The defendant may move for a change of the place of trial on the ground that an impartial trial cannot be had in the county. The motion shall be made at arraignment, but it may be made thereafter for cause.

971.22(2) (2) The motion shall be in writing and supported by affidavit which shall state evidentiary facts showing the nature of the prejudice alleged. The district attorney may file counter affidavits.

971.22(3) (3) If the court determines that there exists in the county where the action is pending such prejudice that a fair trial cannot be had, it shall order that the trial be held in any county where an impartial trial can be had. Only one change may be granted under this subsection. The judge who orders the change in the place of trial shall preside at the trial. Preliminary matters prior to trial may be conducted in either county at the discretion of the court. The judge shall determine where the defendant, if he or she is in custody, shall be held and where the record shall be kept. If the criteria under s. 971.225 (1) (a) to (c) exist, the court may proceed under s. 971.225 (2).

971.22 History History: 1981 c. 115.

971.22 Annotation Relevant factors as to whether a change of venue should have been granted include: 1) the inflammatory nature of publicity concerning the crime; 2) the degree to which adverse publicity permeated the area from which the jury would be drawn; 3) the timing and specificity of the publicity; 4) the degree of care exercised; 5) the amount of difficulty encountered in selecting the jury panel; 6) the extent to which the jurors were familiar with the publicity; 7) the defendant’s use of challenges available in voir dire; 8) the state’s participation in adverse publicity; 9) the severity of the offense charged; and 10) the verdict returned. State v. Hebard, 50 Wis. 2d 408, 184 N.W.2d 156 (1971).

971.22 Annotation While actual prejudice need not be shown, there must be a showing of a reasonable probability of prejudice inherent in the situation. Gibson v. State, 55 Wis. 2d 110, 197 N.W.2d 813 (1972).

971.22 Annotation The timing, specificity, inflammatory nature, and degree of permeation of publicity are extremely important in determining the likelihood of prejudice in the community. State ex rel. Hussong v. Froelich, 62 Wis. 2d 577, 215 N.W.2d 390 (1974).

971.22 Annotation When news stories concerning the crime were accurate informational articles of a nature that would not cause prejudice and four months had elapsed between the publication of the news stories and the trial, it tended to indicate little or no prejudice against the defendant. Jones v. State, 66 Wis. 2d 105, 223 N.W.2d 889 (1974).

971.22 Annotation There was no abuse of discretion in not changing the venue of a prosecution for first-degree murder when the transcript of the hearing on the issuance of the arrest warrant was sealed, the preliminary examination and other hearings were closed to the public and press, the police and prosecutor refused to divulge any facts to the public and press, and press reports were generally free from the details of incriminating evidence, straightforward, and not incendiary. State v. Dean, 67 Wis. 2d 513, 227 N.W.2d 712 (1975).

971.22 Annotation Only the defendant may waive the right to venue where the crime was committed. State v. Mendoza, 80 Wis. 2d 122, 258 N.W.2d 260 (1977).

971.22 Annotation The right to venue where the crime occurred is not a fundamental right of a criminal defendant. The decision to move for a change of venue is a tactical judgment delegated to counsel that does not require the defendant’s personal concurrence. State v. Hereford, 224 Wis. 2d 605, 592 N.W.2d 247 (Ct. App. 1999), 98-1270.

971.223 971.223 Change of place of trial for certain violations.

971.223(1) (1) In an action for a violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19, or for a violation of any other law arising from or in relation to the official functions of the subject of the investigation or any matter that involves elections, ethics, or lobbying regulation under chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19, a defendant who is a resident of this state may move to change the place of trial to the county where the offense was committed. The motion shall be in writing.

971.223(2) (2) The court shall grant a motion under this section if the court determines that the county where the offense was committed is different than the county where the defendant resides. If there is more than one county where the offense was committed, the court shall determine which of the counties where the offense was committed will be the place of trial. The judge who orders the change in the place of trial shall preside at the trial and the jury shall be chosen from the county where the trial will be held. Preliminary matters prior to trial may be conducted in either county at the discretion of the court. The judge shall determine where the record shall be kept and, if the defendant is in custody, where the defendant shall be held.

971.223(3) (3) This section does not affect which prosecutor has responsibility under s. 978.05 (1) to prosecute criminal actions arising from violations under sub. (1).