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
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 670
, 563 N.W.2d 528
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), 97-3294
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), 98-1091
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
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
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
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
A court's order that the defendant not look at his victim during her statement to the court, because, the trial court said, “I just don't want him intimidating her," did not deprive the defendant of his statutory right under this section or a due process right to be present at his sentencing. State v. Payette, 2008 WI App 106
, 313 Wis. 2d 39
, 756 N.W.2d 423
Sub. (1) (g) provides a criminal defendant the statutory right to be in the same courtroom as the presiding judge when a plea hearing is held and the court accepts the plea and pronounces judgment. A defendant may waive, but not forfeit, the right to be in the same courtroom as the presiding judge. State v. Soto, 2012 WI 93
, 343 Wis. 2d 43
, 817 N.W.2d 848
The defendant waived his statutory right to be in the same courtroom as the presiding judge because he appeared in a courtroom with both his attorney and the prosecuting attorney; through videoconferencing, the judge was able to see, speak to, and hear the defendant, and the defendant was able to see, speak to, and hear the judge; the judge explained that videoconferencing would be used for the plea hearing if the defendant chose to enter a plea that day; and the defendant expressly consented to the use of videoconferencing for the plea hearing. State v. Soto, 2012 WI 93
, 343 Wis. 2d 43
, 817 N.W.2d 848
The circuit court's decision to exclude the defendant from in-chambers meetings with jurors during the trial regarding possible bias did not violate the statutory right under sub. (1) (c) to be present during voir dire. Voir dire is a preliminary examination of whether an individual can serve on a jury. In this case, the trial had already commenced and the jurors had already been selected when the bias issue arose. State v. Alexander, 2013 WI 70
, 349 Wis. 2d 327
, 833 N.W.2d 126
describes what a circuit court should do to establish a valid waiver of the defendant's right to be present at his or her plea hearing when the defendant appears by videoconferencing or similar technology, is in a courtroom, and is in the same room as his or her attorney, more is required when the defendant appears by telephone, from prison, and is physically separated from counsel. Under these circumstances, a valid waiver of the defendant's right to be present must be predicated upon a colloquy that unambiguously informs the defendant he or she has a right to be physically present for the plea hearing in the same courtroom as the presiding judge. The court must specifically inquire, as often and in whatever manner is necessary under the circumstances, whether the defendant is able to hear and understand the court and the other participants. State v. Anderson, 2017 WI App 17
, 374 Wis. 2d 372
, 896 N.W.2d 364
In a case in which a defendant asserts he or she did not validly waive his or her right to be present at a plea hearing, once a defendant has shown that the circuit court's waiver colloquy was deficient and has asserted that he or she did not understand his or her right to appear in person at the plea hearing, the burden should shift to the state to prove by clear and convincing evidence that the defendant did, in fact, knowingly, voluntarily, and intelligently waive his or her right to be present. State v. Anderson, 2017 WI App 17
, 374 Wis. 2d 372
, 896 N.W.2d 364
Sub. (3) sets forth a way that a defendant can forfeit the right to be present at trial: by leaving after the jury has been sworn. The statute does not limit a defendant's ability to waive the right to be present and does not purport to set forth the exclusive manner in which a defendant can relinquish the right to be present. Sub. (3) was created to attend to the situation in which a defendant absconds, not when an obstreperous defendant seeks to delay and disrupt proceedings through his or her own actions. State v. Washington, 2018 WI 3
, 379 Wis. 2d 58
, 905 N.W.2d 380
Similar to the constitutional right to be present, a defendant may waive his or her statutory right to be present at certain proceedings enumerated in sub. (1). Waiver can be either express or by conduct. Determining whether there is waiver by conduct presents a fact intensive inquiry. State v. Washington, 2018 WI 3
, 379 Wis. 2d 58
, 905 N.W.2d 380
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:
The arraignment shall be in open court.
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
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.
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.