The factors, among others, which the court shall consider in determining whether to grant a continuance under par. (a)
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.
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.
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.
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.
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
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
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
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
Following a guilty plea, the defendant could not raise a speedy trial issue. United States v. Gaertner, 583 F.2d 308
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.
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.
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
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.
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.
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.
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.
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)
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)
if a trial commenced within such period terminates in a mistrial or a new trial is granted.
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), 96-1680
The responsibility for complying with the sub. (2) 120-day time limit for bringing a case to trial cannot be imposed on the defendant. Once the district attorney receives the request under sub. (1), the responsibility for prompt disposition is placed on the district attorney. The trial court erred when it failed to dismiss the case when the 120-day time limit was not met. State v. Lewis, 2004 WI App 211
, 277 Wis. 2d 446
, 690 N.W.2d 668
Violations of the right to a speedy trial are waived by entry of a guilty plea. When a defendant chooses to accept a plea agreement rather than inconveniencing the district attorney by requiring the filing of a new complaint, the protections of s. 971.11 are forfeited. State v. Asmus, 2010 WI App 48
, 324 Wis. 2d 427
, 782 N.W.2d 435
The specific conclusion by the Davis
courts was that the “subject to s. 971.10" language following the 120-day time period in sub. (2) refers to the court's authority to grant a continuance for the reasons specified in s. 971.10 (3) (a). The defendant's conclusion that the 120-day time period cannot be extended is fundamentally inconsistent with the Davis
court's conclusion that failure to bring a case to trial within 120 days triggers dismissal, which can be without prejudice and allow for refiling. State v. Butler, 2014 WI App 4
, 352 Wis. 2d 484
, 844 N.W.2d 392
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.
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.
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.
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.
History: 1993 a. 486
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
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
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
In a joint trial on charges of burglary and obstructing an officer, while evidence as to the fabrication of an alibi by the defendant was probative as to the burglary, the substantial danger that the jury might employ the evidence as affirmative proof of the elements of that crime, for which the state was required to introduce separate and independent evidence showing guilt beyond a reasonable doubt, required the court to administer a clear and certain cautionary instruction that the jury should not consider evidence on the obstructing count as sufficient in itself to find the defendant guilty of burglary. Peters v. State, 70 Wis. 2d 22
, 233 N.W.2d 420
Joinder was not prejudicial to the defendant moving for severance when the possibly prejudicial effect of inadmissible hearsay regarding the other defendant was presumptively cured by instructions. State v. Jennaro, 76 Wis. 2d 499
, 251 N.W.2d 800
If a codefendant's antagonistic testimony merely corroborates overwhelming prosecution evidence, refusal to grant severance is not an abuse of discretion. Haldane v. State, 85 Wis. 2d 182
, 270 N.W.2d 75
Joinder of charges against the defendant was proper when separate acts exhibited some modus operandi. Francis v. State, 86 Wis. 2d 554
, 273 N.W.2d 310
The trial court properly deleted implicating references from a codefendant's confession rather than granting the defendant's motion for severance under sub. (3). Pohl v. State, 96 Wis. 2d 290
, 291 N.W.2d 554
The trial court did not abuse its discretion in denying a severance motion and failing to caution the jury against prejudice when 2 counts were joined. State v. Bettinger, 100 Wis. 2d 691
, 303 N.W.2d 585
Joinder is not prejudicial when the same evidence would be admissible under s. 904.04 if there were separate trials. State v. Hall, 103 Wis. 2d 125
, 307 N.W.2d 289
The trial court abused its discretion in denying a motion for severance of codefendants' trials when the movant made an initial showing that his codefendant's testimony would have established his alibi defense and his entire defense was based on the alibi. State v. Brown, 114 Wis. 2d 554
, 338 N.W.2d 857
(Ct. App. 1983).
Joinder under sub. (2) was proper when two robberies were instigated by one defendant's prostitution and the other defendant's systematic robbing of customers who refused to pay. State v. King, 120 Wis. 2d 285
, 354 N.W.2d 742
(Ct. App. 1984).
To be of “the same or similar character" under sub. (1), crimes must be of the same type, occur over a relatively short time period, and evidence as to each must overlap. State v. Hamm, 146 Wis. 2d 130
, 430 N.W.2d 584
(Ct. App. 1988).
If an appellate court vacates a conviction on one or more counts when multiple counts are tried together, the defendant is entitled to a new trial on the remaining counts upon showing compelling prejudice arising from evidence introduced to support the vacated counts. State v. McGuire, 204 Wis. 2d 372
, 556 N.W.2d 111
(Ct. App. 1996), 95-3138
A violation of sub. (3) does not require a new trial in all cases but is subject to harmless error analysis. State v. King, 205 Wis. 2d 81
, 555 N.W.2d 189
(Ct. App. 1996), 95-3442
Simultaneous trials of 2 defendants before 2 juries is permissible. An impermissible confession in one case not heard by the jury in that case accomplishes the required severance of the cases. State v. Avery, 215 Wis. 2d 45
, 571 N.W.2d 907
(Ct. App. 1997), 96-2873
For severance to be granted, it is not sufficient to show that some prejudice was caused. Any joinder of offenses is apt to involve some element of prejudice to the defendant, since a jury is likely to feel that a defendant charged with several crimes must be a bad individual who has done something wrong. However, if the notion of involuntary joinder is to retain any validity, a higher degree of prejudice, or certainty of prejudice, must be shown before relief will be in order. State v. Linton, 2010 WI App 129
, 329 Wis. 2d 687
, 791 N.W.2d 222
Subsection (1) is broadly construed in favor of initial joinder. The court has historically favored initial joinder particularly when the charged crimes were all committed by the same defendant. State v. Salinas, 2016 WI 44
, 369 Wis. 2d 9
, 879 N.W.2d 609
In assessing whether separate crimes are sufficiently “connected together" for purposes of initial joinder under sub. (1), the court looks to a variety of factors, including: 1) are the charges closely related; 2) are there common factors of substantial importance; 3) did one charge arise out of the investigation of the other; 4) are the crimes close in time or close in location, or do the crimes involve the same victims; 5) are the crimes similar in manner, scheme, or plan; 6) was one crime committed to prevent punishment for another; and 7) would joinder serve the goals and purposes of this section. State v. Salinas, 2016 WI 44
, 369 Wis. 2d 9
, 879 N.W.2d 609
Joinder and severance. 1971 WLR 604.
No person who lacks substantial mental capacity to understand the proceedings or assist in his or her own defense may be tried, convicted or sentenced for the commission of an offense so long as the incapacity endures.
A defendant shall not be determined incompetent to proceed solely because medication has been or is being administered to restore or maintain competency.
The fact that a defendant is not competent to proceed does not preclude any legal objection to the prosecution under s. 971.31
which is susceptible of fair determination prior to trial and without the personal participation of the defendant.
The fact that a defendant is not competent to proceed does not preclude a hearing under s. 968.38 (4)
unless the probable cause finding required to be made at the hearing cannot be fairly made without the personal participation of the defendant.
Judicial Council Committee's Note, 1981:
Fundamental fairness precludes criminal prosecution of a defendant who is not mentally competent to exercise his or her constitutional and procedural rights. State ex rel. Matalik v. Schubert, 57 Wis. 2d 315
, 322 (1973).
Sub. (1) states the competency standard in conformity with Dusky v. U.S., 362 U.S. 402
(1960) and State ex rel. Haskins v. Dodge County Court, 62 Wis. 2d 250
, 265 (1974). Competency is a judicial rather than a medical determination. Not every mentally disordered defendant is incompetent; the court must consider the degree of impairment in the defendant's capacity to assist counsel and make decisions which counsel cannot make for him or her. See State v. Harper, 57 Wis. 2d 543
(1973); Norwood v. State, 74 Wis. 2d 343
(1976); State v. Albright, 96 Wis. 2d 122
(1980); Pickens v. State, 96 Wis. 2d 549
Sub. (2) clarifies that a defendant who requires medication to remain competent is nevertheless competent; the court may order the defendant to be administered such medication for the duration of the criminal proceedings under s. 971.14 (5) (c).
Sub. (3) is identical to prior s. 971.14 (6). It has been renumbered for better statutory placement, adjacent to the rule which it clarifies. [Bill 765-A]
Defense counsel having reason to doubt the competency of a client must raise the issue with the court, strategic considerations notwithstanding. State v. Johnson, 133 Wis. 2d 207
, 395 N.W.2d 176
A probationer has a right to a competency determination when, during a revocation proceeding, the administrative law judge has reason to doubt the probationer's competence. The determination shall be made by the circuit court in the county of sentencing, which shall adhere to this section and s. 971.14 to the extent practicable. State ex rel. Vanderbeke v. Endicott, 210 Wis. 2d 502
, 563 N.W.2d 883
There is a higher standard for determining competency to represent oneself than for competency to stand trial, based on the defendant's education, literacy, fluency in English, and any physical or psychological disability that may affect the ability to communicate a defense. When there is no pre-trial finding of competency to proceed and postconviction relief is sought, the court must determine if it can make a meaningful nunc pro tunc inquiry. If it cannot, or it finds that it can but the defendant was not competent, a new trial is required. State v. Klessig, 211 Wis. 2d 194
, 564 N.W.2d 716
A prior mental illness or a mental illness diagnosis made subsequent to the proceeding in question may create a reason to doubt competency, but neither categorically creates a reason to doubt competency. State v. Farrell, 226 Wis. 2d 447
, 595 N.W.2d 64
(Ct. App. 1999), 98-1179
This section codifies the two-part “understand-and-assist" due process test for determining competency set forth in Dusky v. U.S.
, 362 U.S. 402
(1960), that considers whether a defendant: 1) has sufficient present ability to consult with his or her lawyer with a reasonable degree of rational understanding; and 2) has a rational as well as factual understanding of the proceedings. Thus, a defendant is incompetent if he or she lacks the capacity to understand the nature and object of the proceedings, to consult with counsel, and to assist in the preparation of his or her defense. State v. Byrge, 2000 WI 101
, 237 Wis. 2d 197
, 614 N.W.2d 477
. See also State v. Smith, 2016 WI 23
, 367 Wis. 2d 483
, 878 N.W.2d 135
It is entirely reasonable that a competency examination designed to address a defendant's ability to understand the proceedings and assist counsel may also address issues of future dangerousness, which a court may reasonably consider when gauging the need for public protection in setting a sentence. State v. Slagoski, 2001 WI App 112
, 244 Wis. 2d 49
, 629 N.W.2d 50
A judge who carefully considered the transcribed record and her recollection of a previous proceeding involving the defendant, did not impermissibly testify. There is no substantive difference between a judge's observation of a defendant's demeanor at the time of a competency hearing and the judge's observations of the defendant at an earlier proceeding. Both may be probative. State v. Meeks, 2002 WI App 65
, 251 Wis. 2d 361
, 643 N.W.2d 526
Counsel's testimony on opinions, perceptions, and impressions of a former client's competency violated the attorney-client privilege and should not have been revealed without the consent of the former client. State v. Meeks, 2003 WI 104
, 263 Wis. 2d 794
, 666 N.W.2d 859
Competency proceedings. 971.14(1g)(1g)
In this section, “department" means the department of health services.
The court shall proceed under this section whenever there is reason to doubt a defendant's competency to proceed.
If reason to doubt competency arises after the defendant has been bound over for trial after a preliminary examination, or after a finding of guilty has been rendered by the jury or made by the court, a probable cause determination shall not be required and the court shall proceed under sub. (2)
Except as provided in par. (b)
, the court shall not proceed under sub. (2)
until it has found that it is probable that the defendant committed the offense charged. The finding may be based upon the complaint or, if the defendant submits an affidavit alleging with particularity that the averments of the complaint are materially false, upon the complaint and the evidence presented at a hearing ordered by the court. The defendant may call and cross-examine witnesses at a hearing under this paragraph but the court shall limit the issues and witnesses to those required for determining probable cause. Upon a showing by the proponent of good cause under s. 807.13 (2) (c)
, testimony may be received into the record of the hearing by telephone or live audiovisual means. If the court finds that any charge lacks probable cause, it shall dismiss the charge without prejudice and release the defendant except as provided in s. 971.31 (6)
The court shall appoint one or more examiners having the specialized knowledge determined by the court to be appropriate to examine and report upon the condition of the defendant. If an inpatient examination is determined by the court to be necessary, the defendant may be committed to a suitable mental health facility for the examination period specified in par. (c)
, which shall be deemed days spent in custody under s. 973.155
. If the examination is to be conducted by the department, the court shall order the individual to the facility designated by the department.
Notwithstanding par. (a)
, if the court orders the defendant to be examined by the department or a department facility, the department shall determine where the examination will be conducted, who will conduct the examination and whether the examination will be conducted on an inpatient or outpatient basis. Any such outpatient examination shall be conducted in a jail or a locked unit of a facility. In any case under this paragraph in which the department determines that an inpatient examination is necessary, the 15-day period under par. (c)
begins upon the arrival of the defendant at the inpatient facility. If an outpatient examination is begun by or through the department, and the department later determines that an inpatient examination is necessary, the sheriff shall transport the defendant to the inpatient facility designated by the department, unless the defendant has been released on bail.
If the defendant has been released on bail, the court may not order an involuntary inpatient examination unless the defendant fails to cooperate in the examination or the examiner informs the court that inpatient observation is necessary for an adequate examination.
Inpatient examinations shall be completed and the report of examination filed within 15 days after the examination is ordered or as specified in par. (am)
, whichever is applicable, unless, for good cause, the facility or examiner appointed by the court cannot complete the examination within this period and requests an extension. In that case, the court may allow one 15-day extension of the examination period. Outpatient examinations shall be completed and the report of examination filed within 30 days after the examination is ordered.
If the court orders that the examination be conducted on an inpatient basis, the sheriff of the county in which the court is located shall transport any defendant not free on bail to the examining facility within a reasonable time after the examination is ordered and shall transport the defendant to the jail within a reasonable time after the sheriff and county department of community programs of the county in which the court is located receive notice from the examining facility that the examination has been completed.
The examiner shall personally observe and examine the defendant and shall have access to his or her past or present treatment records, as defined under s. 51.30 (1) (b)
A defendant ordered to undergo examination under this section may receive voluntary treatment appropriate to his or her medical needs. The defendant may refuse medication and treatment except in a situation where the medication or treatment is necessary to prevent physical harm to the defendant or others.