Chapter 971

971.08 Annotation Lifetime global positioning system (GPS) tracking is not a punishment such that due process requires a defendant be informed of it before entering a plea of guilty. Neither the intent nor effect of lifetime GPS tracking is punitive. Consequently, the defendant in this case was not entitled to withdraw the defendant's plea because the circuit court was not required to inform the defendant that the guilty plea would subject the defendant to lifetime GPS tracking. State v. Muldrow, 2018 WI 52, 381 Wis. 2d 492, 912 N.W.2d 74, 16-0740.

971.08 Annotation The intent-effects test is the proper test used to determine whether a sanction rises to the level of punishment such that due process requires a defendant be informed of it before entering a plea of guilty. Under the intent-effects test, the court first looks to the statute’s primary function, intent. Determining whether the legislature intended a statute to be punitive is primarily a matter of statutory construction. The court also considers whether the effect of the statute is penal or regulatory in character. To aid its determination of the effect, the court applies the seven factors set out in Mendoza-Martinez, 372 U.S. 144 (1963): 1) whether the sanction involves an affirmative disability or restraint; 2) whether the sanction has historically been regarded as a punishment; 3) whether the sanction comes into play only on a finding of scienter; 4) whether the sanction’s operation will promote the traditional aims of punishment—retribution and deterrence; 5) whether the behavior to which the sanction applies is already a crime; 6) whether an alternative purpose to which the sanction may rationally be connected is assignable for it; and 7) whether the sanction appears excessive in relation to the alternative purpose assigned. State v. Muldrow, 2018 WI 52, 381 Wis. 2d 492, 912 N.W.2d 74, 16-0740.

971.08 Annotation A circuit court is not required at the guilt phase to inform a defendant who has pled not guilty by reason of mental disease or defect (NGI) of the maximum possible term of civil commitment because: 1) a defendant who prevails at the responsibility phase of the NGI proceeding has proven an affirmative defense in a civil proceeding, avoiding incarceration, and is not waiving any constitutional rights by so proceeding in that defense; and 2) an NGI commitment is not punishment but, rather, is a collateral consequence to one who successfully mounts an NGI defense to criminal charges. State v. Fugere, 2019 WI 33, 386 Wis. 2d 76, 924 N.W.2d 469, 16-2258.

971.08 Annotation A circuit court may utilize a waiver of rights form for a defendant who is pleading guilty, but the use of that form does not otherwise eliminate the circuit court’s plea colloquy duties. While a circuit court must exercise great care when conducting a plea colloquy so as to best ensure that a defendant is knowingly, intelligently, and voluntarily entering a plea, a formalistic recitation of the constitutional rights being waived is not required. State v. Pegeese, 2019 WI 60, 387 Wis. 2d 119, 928 N.W.2d 590, 17-0741.

971.08 Annotation Because Wisconsin does not permit conditional guilty pleas in the federal form, “stipulated trials,” which ultimately have the same effect, are also not permissible. State v. Beyer, 2021 WI 59, 397 Wis. 2d 616, 960 N.W.2d 408, 19-1983.

971.08 Annotation When a defendant seeks to withdraw a plea after sentencing, the defendant bears the heavy burden to show by clear and convincing evidence that withdrawal is necessary to correct a manifest injustice. One way in which a manifest injustice occurs is by a circuit court failing to establish a factual basis that constitutes the offense to which the defendant pled. A factual basis exists if an inculpatory inference can be drawn from the complaint or facts admitted to by the defendant even though it may conflict with an exculpatory inference elsewhere in the record. State v. Chentis, 2022 WI App 4, 400 Wis. 2d 441, 969 N.W.2d 482, 20-1699.

971.08 Annotation Courts have generally held that a prosecutor’s material breach of a plea agreement may be cured if the prosecutor unequivocally retracts the error. In this case, when the prosecutor initially recommended a specific term of imprisonment despite the state’s agreement not to do so, but then retracted and corrected the mistake upon being made aware of the error, the prosecutor cured the breach of the plea agreement. State v. Nietzold, 2023 WI 22, 406 Wis. 2d 349, 986 N.W.2d 795, 21-0021.

971.08 Annotation While the facts giving rise to an attempted cure of a breach of a plea agreement may be found by the circuit court, whether those facts cure the breach—meaning there is no longer a material breach entitling an accused to a remedy—is a question of law. State v. Nietzold, 2023 WI 22, 406 Wis. 2d 349, 986 N.W.2d 795, 21-0021.

971.08 Annotation A defendant is not entitled to withdraw a guilty plea whenever the defendant is provided misinformation about the law. Rather, courts address the issue under the totality of the circumstances. The totality of the circumstances includes whether the misinformation provided to the defendant in part induced the defendant’s decision to enter the plea. State v. Hailes, 2023 WI App 29, 408 Wis. 2d 465, 992 N.W.2d 835, 21-1339.

971.08 Annotation Under Cross, 2010 WI 70, a defendant can be said to understand the range of punishments as required by this section and Bangert, 131 Wis. 2d 246 (1986), when the maximum sentence communicated to the defendant is higher, but not substantially higher, than the actual allowable sentence. In this case, although it was counsel who provided the incorrect information to the defendant, rather than the circuit court, the 46-year sentence communicated to the defendant was higher, but not substantially higher, than the 40-year maximum statutory penalty the defendant actually faced. The defendant understood the potential punishment, and the plea was knowing, intelligent, and voluntary. State v. Gomolla, 2024 WI App 13, 411 Wis. 2d 239, 4 N.W.3d 610, 22-0199.

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, 102 S. Ct. 2485, 73 L. Ed. 2d 74 (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, 104 S. Ct. 2543, 81 L. Ed. 2d 437 (1984).

971.08 Annotation When the 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 (1975).

971.08 Annotation Criminal Law—Pleas of Guilty—Plea Bargaining—The American Bar Association’s Standards on Criminal Justice and Wis. Stat. Section 971.08. 1971 WLR 583.

971.08 Annotation The Immigration Consequence of a Plea. Odrcic. Wis. Law. May 2018.

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(1) (1) In this section:

971.095(1)(a) (a) “District attorney” has the meaning given in s. 950.02 (2m).

971.095(1)(b) (b) “Victim” has the meaning given in s. 950.02 (4).

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.

971.10 971.10 Speedy trial.

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) (2) 

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) (3) 

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)(b)3. 3. The interests of the victim, as defined in s. 950.02 (4).

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 History History: 1971 c. 40 s. 93; 1971 c. 46, 298; 1977 c. 187 s. 135; 1979 c. 34; 1993 a. 155; 1997 a. 181.

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 (1974).

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 Violations of the right to a speedy trial are waived by entry of a guilty plea. State v. Asmus, 2010 WI App 48, 324 Wis. 2d 427, 782 N.W.2d 435, 08-2980.

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.

971.105 History History: 1983 a. 197; 1985 a. 262 s. 8; 1993 a. 98; 1995 a. 77.

971.106 971.106 Elder person victims and witnesses; duty to expedite proceedings.

971.106(1) (1) In this section, “elder person” means any individual who is 60 years of age or older.

971.106(2) (2) In all criminal and delinquency cases and juvenile dispositional hearings involving a victim or witness who is an elder person, the court and the district attorney shall take appropriate action to ensure a speedy trial in order to minimize the length of time the elder person must endure the stress of the elder person’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 victim or witness who is an elder person.

971.106 History History: 2023 a. 231.

971.108 971.108 Elder person victims and witnesses; duty to preserve testimony.

971.108(1) (1) In this section, “elder person” means any individual who is 60 years of age or older.

971.108(2) (2) In all criminal and delinquency cases and juvenile dispositional hearings involving a crime victim or witness who is an elder person, the district attorney may file a motion to preserve the testimony of the crime victim or witness. If the court finds good cause to do so, the court shall conduct a hearing within 60 days of the date the motion was filed to preserve the testimony of the crime victim or witness. The hearing shall be before the court. The defendant shall be present at the hearing. The crime victim or witness shall be sworn as a witness and shall be subject to cross-examination and rebuttal if not unduly repetitious. The witness may testify in person, or, 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. The hearing shall be recorded, and the recorded testimony of the witness shall be admissible in evidence in any court proceeding in the case.

971.108 History History: 2023 a. 231.

971.109 971.109 Freezing assets of a person charged with financial exploitation of an elder person.

971.109(1) (1) Definitions. In this section:

971.109(1)(a) (a) “Elder person” means any individual who is 60 years of age or older.

971.109(1)(b) (b) “Financial exploitation” has the meaning given in s. 46.90 (1) (ed).

971.109(2) (2) Seizure of assets.

971.109(2)(a) (a) If a defendant is charged with a crime that is financial exploitation, the crime involves the taking or loss of property valued at more than $2,500, and the crime victim is an elder person, a prosecuting attorney may file a petition with the court in which the defendant has been charged to freeze the funds, assets, or property of the defendant in an amount up to 100 percent of the alleged value of funds, assets, or property in the defendant’s pending criminal proceeding for purposes of restitution to the crime victim. The hearing on the petition may be held ex parte. The rules of evidence do not apply in a hearing under this paragraph.

971.109(2)(b) (b) In the hearing under par. (a), if there is a showing of probable cause that the defendant used, was using, is about to use, or is intending to use any funds, assets, or property in a way that constitutes or would constitute financial exploitation, the court shall issue an order to freeze or seize the funds, assets, or property of the defendant in the amount calculated under par. (a). A copy of the order shall be served upon the defendant whose funds, assets, or property has been frozen or seized.

971.109(2)(c) (c) The court’s order shall prohibit the sale, gifting, transfer, or wasting of the funds, assets, or real or personal property of the elder person that are owned by or vested in the defendant without the express permission of the court. The court’s order shall be binding upon a financial institution, as defined in s. 943.80 (2), and any 3rd party that is in possession of the funds, assets, or property.

971.109(3) (3) Release of funds. At any time within 30 days after service of the order under sub. (2) (b), the defendant or any person claiming an interest in the funds, assets, or property may file a petition to release the funds, assets, or property. The court shall hold a hearing on the motion within 10 days from the date the motion is filed. The procedure under s. 968.20 applies to a petition under this subsection.

971.109(4) (4) Dismissal or acquittal. If the prosecution of a charge of financial exploitation is dismissed or if a judgment of acquittal is entered, the court shall vacate the order issued under sub. (2) (b).

971.109(5) (5) Conviction. If the prosecution of a charge of financial exploitation results in a conviction, the court may order that the funds, assets, or property that were frozen or seized under sub. (2) (b) be released only for the purpose of paying restitution ordered under s. 973.20 (2).

971.109 History History: 2021 a. 76.

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 History History: 1983 a. 528; 1989 a. 31; 1993 a. 486; 1995 a. 48; 1997 a. 283.

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), 96-1680.