Amending the charge.
Motions before trial.
Inquiry upon dismissal.
Ownership, how alleged.
Possession of property, what sufficient.
Intent to defraud.
Theft; pleading and evidence; subsequent prosecutions.
Crimes involving certain controlled substances.
Use of another's personal identifying information: charges.
False statements to financial institutions: charges.
Deferred prosecution programs; domestic abuse and child sexual abuse.
Deferred prosecution agreements; sanctions.
Deferred prosecution program; community service work.
Deferred prosecution program; agreements with department.
Deferred prosecution agreement; placement with volunteers in probation program.
Deferred prosecution program; worthless checks.
Ch. 971 Cross-reference
See definitions in s. 967.02
Filing of the information. 971.01(1)(1)
The district attorney shall examine all facts and circumstances connected with any preliminary examination touching the commission of any crime if the defendant has been bound over for trial and, subject to s. 970.03 (10)
, shall file an information according to the evidence on such examination subscribing his or her name thereto.
The information shall be filed with the clerk within 30 days after the completion of the preliminary examination or waiver thereof except that the district attorney may move the court wherein the information is to be filed for an order extending the period for filing such information for cause. Notice of such motion shall be given the defendant. Failure to file the information within such time shall entitle the defendant to have the action dismissed without prejudice.
History: 1993 a. 486
The failure to file the information is not a mere matter of form, but is grounds for dismissal under sub. (2). State v. Woehrer, 83 Wis. 2d 696
, 266 N.W.2d 366
The 30-day limit under sub. (2) does not apply to service on the defendant; only filing with the clerk. State v. May, 100 Wis. 2d 9
, 301 N.W.2d 458
(Ct. App. 1980).
If a challenge is not to the bindover decision, but to a specific charge in the information, the trial court's review is limited to whether the district attorney abused his or her discretion in issuing the charge. State v. Hooper, 101 Wis. 2d 517
, 305 N.W.2d 110
The prosecutor may include charges in the information for which no direct evidence was presented at the preliminary examination, as long as the additional charges are not wholly unrelated to the original charge. State v. Burke, 153 Wis. 2d 445
, 451 N.W.2d 739
(1990). See also State v. Richer, 174 Wis. 2d 231
, 496 N.W.2d 66
Preliminary examination; when prerequisite to an information or indictment. 971.02(1)(1)
If the defendant is charged with a felony in any complaint, including a complaint issued under s. 968.26
, or when the defendant has been returned to this state for prosecution through extradition proceedings under ch. 976
, or any indictment, no information or indictment shall be filed until the defendant has had a preliminary examination, unless the defendant waives such examination in writing or in open court or unless the defendant is a corporation or limited liability company. The omission of the preliminary examination shall not invalidate any information unless the defendant moves to dismiss prior to the entry of a plea.
Upon motion and for cause shown, the trial court may remand the case for a preliminary examination. “Cause" means:
The preliminary examination was waived; and
Defendant did not have advice of counsel prior to such waiver; and
Defendant denies that probable cause exists to hold him or her for trial; and
History: 1973 c. 45
; 1993 a. 112
An objection to the sufficiency of a preliminary examination is waived if it is not raised prior to pleading. Wold v. State, 57 Wis. 2d 344
, 204 N.W.2d 482
When the defendant waived a preliminary examination and wished to plead, but the information was not ready and was only orally read into the record, the defendant was not harmed by the acceptance of his plea before the filing of the information. Larson v. State, 60 Wis. 2d 768
, 211 N.W.2d 513
The scope of cross-examination by the defense was properly limited at the preliminary hearing. State v. Russo, 101 Wis. 2d 206
, 303 N.W.2d 846
(Ct. App. 1981).
The denial of a preliminary examination to a corporation is constitutional. State v. C & S Management, Inc. 198 Wis. 2d 844
, 544 N.W.2d 237
(Ct. App. 1995), 94-3188
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
Preliminary examination potential. 58 MLR 159.
The grand jury in Wisconsin. Coffey, Richards, 58 MLR 518.
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 (1)
, commencing the date on which the forms are adopted. If an applicable court form has been adopted under s. 758.18 (2)
, that form may be used in lieu of the standard court form.
A party or court official may supplement a court form with additional material.
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 under sub. (1)
or to follow format rules but shall require the party to submit, within 10 days, a corrected form and may impose statutory fees or costs or both.
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.
Sup. Ct. Order No. 98-01
, 228 Wis. 2d xiii (2000); Sup. Ct. Order No. 05-02
, 2005 WI 41, 278 Wis. 2d xxxv.
The provisions of ss. 801.19
are applicable in criminal cases.
Sup. Ct. Order No. 14-04
, 2015 WI 89, filed 8-27-15, eff. 7-1-16.
Form of information.
The information may be in the following form:
STATE OF WISCONSIN,
In .... Court.
The State of Wisconsin
.... (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
History: 1997 a. 250
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
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
The law does not require that the information specify with particularity upon which dates the course of conduct occurred. In drafting an information the state should not have to spell out every act that would comprise an element of the crime. Instead, allegations of the elements of the crime charged will suffice. State v. Conner, 2009 WI App 143
, 321 Wis. 2d 449
, 775 N.W.2d 105
While citation to a specific statute may be the preferred practice, failure to specifically cite to a statute in the information and complaint is harmless error when there is no prejudice to the defendant. State v. Elverman, 2015 WI App 91
, 367 Wis. 2d 126
, 876 N.W.2d 511
Defendant to be present. 971.04(1)(1)
Except as provided in subs. (2)
, the defendant shall be present:
At the pronouncement of judgment and the imposition of sentence;
At any other proceeding when ordered by the court.
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.
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
, or 974.07
. If the defendant is not present, the time for appeal from any order under ss. 974.02
, 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.
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
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]
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
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
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).
Sub. (1) does not encompass a postconviction evidentiary hearing. State v. Vennemann, 180 Wis. 2d 81
, 508 N.W.2d 404
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).
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 defendant's presence may be harmless error. State v. David J.K. 190 Wis. 2d 726
, 528 N.W.2d 434
(Ct. App. 1994).
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
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