Chapter 971

971.31 Annotation When defense counsel refused, for strategic reasons, to pursue a motion made pro se by the defendant before trial to suppress evidence of identification at a lineup, there was a waiver of the motion. State v. McDonald, 50 Wis. 2d 534, 184 N.W.2d 886 (1971).

971.31 Annotation A claim of illegal arrest for lack of probable cause must be raised by motion before trial. Lampkins v. State, 51 Wis. 2d 564, 187 N.W.2d 164 (1971).

971.31 Annotation The waiver provision in sub. (2) is constitutional. Day v. State, 52 Wis. 2d 122, 187 N.W.2d 790 (1971).

971.31 Annotation A defendant is not required to make a motion to withdraw the defendant’s plea to preserve the right to a review of an alleged error of refusal to suppress evidence. State v. Meier, 60 Wis. 2d 452, 210 N.W.2d 685 (1973).

971.31 Annotation A motion to suppress statements on the ground that they were products of an allegedly improper arrest was timely, notwithstanding failure to assert that challenge prior to arraignment, since it was made after the information was filed and prior to trial. Rinehart v. State, 63 Wis. 2d 760, 218 N.W.2d 323 (1974).

971.31 Annotation A request for a Goodchild hearing after direct testimony is concluded is not timely under sub. (2). Coleman v. State, 64 Wis. 2d 124, 218 N.W.2d 744 (1974).

971.31 Annotation The rule in sub. (2) does not apply to confessions because sub. (2) is qualified by subs. (3) and (4). Upchurch v. State, 64 Wis. 2d 553, 219 N.W.2d 363 (1974).

971.31 Annotation A challenge to the search of one’s person cannot be raised for the first time on appeal. Madison v. State, 64 Wis. 2d 564, 219 N.W.2d 259 (1974).

971.31 Annotation A defendant’s right to testify at a Goodchild, 27 Wis. 2d 244 (1965), hearing may be curtailed only for the most compelling reasons. Franklin v. State, 74 Wis. 2d 717, 247 N.W.2d 721 (1976).

971.31 Annotation When the state used a traffic citation to initiate legal proceedings and subsequently decided to prosecute the action as a crime, the trial court erred in not giving the defendant ten days from the date of the amended charge to object to the sufficiency of the complaint. State v. Mudgett, 99 Wis. 2d 525, 299 N.W.2d 621 (Ct. App. 1980).

971.31 Annotation Sub. (6) authorizes the court to hold a defendant in custody or on bail for 72 hours pending new proceedings. State ex rel. Brockway v. Milwaukee County Circuit Court, 105 Wis. 2d 341, 313 N.W.2d 845 (Ct. App. 1981).

971.31 Annotation Factors that a court should consider when a defendant requests to be tried after a codefendant in order to secure the testimony of the codefendant are: 1) the likelihood that the codefendant will testify; 2) the likelihood that the testimony will be significant and beneficial to the defendant; 3) whether the defendant diligently attempted to secure the evidence in time for trial; 4) the length of delay requested; and 5) the burden on the trial court and prosecution. State v. Anastas, 107 Wis. 2d 270, 320 N.W.2d 15 (Ct. App. 1982).

971.31 Annotation By pleading guilty, the defendant waived the right to appeal the trial court’s ruling on the admissibility of other crimes evidence. State v. Nelson, 108 Wis. 2d 698, 324 N.W.2d 292 (Ct. App. 1982).

971.31 Annotation A finding of not guilty by reason of mental disease or defect is a judgment of conviction under s. 972.13 (1), and thus sub. (10) is applicable. State v. Smith, 113 Wis. 2d 497, 335 N.W.2d 376 (1983).

971.31 Annotation Sub. (10) does not apply to civil forfeiture cases. County of Racine v. Smith, 122 Wis. 2d 431, 362 N.W.2d 439 (Ct. App. 1984).

971.31 Annotation To admit evidence of prior untruthful allegations of sexual assault under sub. (11) and s. 972.11 (2) (b) 3., the court must be able to conclude from an offer of proof that a reasonable person could infer that the complainant made a prior untruthful allegation. “Allegation” is not restricted to allegations reported to the police. State v. DeSantis, 155 Wis. 2d 774, 456 N.W.2d 600 (1990).

971.31 Annotation Sub. (10) is inapplicable when the statement sought to be suppressed has no possible relevance to the charge to which the defendant pled guilty. State v. Pozo, 198 Wis. 2d 705, 544 N.W.2d 228 (Ct. App. 1995).

971.31 Annotation An evidentiary hearing need not be granted as a matter of course when requested prior to trial. The Nelson, 54 Wis. 2d 489 (1972), standards for granting an evidentiary hearing, coupled with the safeguards provided by Garner, 207 Wis. 2d 520 (1996), are applicable to a circuit court’s consideration of a pretrial motion. State v. Velez, 224 Wis. 2d 1, 589 N.W.2d 9 (1999), 96-2430.

971.31 Annotation The harmless error approach in appeals under sub. (10) is not precluded in any way. State v. Armstrong, 225 Wis. 2d 121, 591 N.W.2d 604 (1999), 97-0925.

971.31 Annotation A Miranda, 384 U.S. 436 (1966)-Goodchild, 27 Wis. 2d 244 (1965), hearing to determine voluntariness of confessions is an evidentiary hearing for the parties. It is not a soliloquy for the court. The court must not permit itself to become a witness or an advocate for one party. A defendant does not receive a full and fair evidentiary hearing when the role of the prosecutor is played by the judge and the prosecutor is reduced to a bystander. State v. Jiles, 2003 WI 66, 262 Wis. 2d 457, 663 N.W.2d 798, 02-0153.

971.31 Annotation The defendant has no statutory subpoena right to obtain and copy police investigation reports and nonprivileged materials prior to a preliminary examination. Section 972.11 does not allow a criminal defendant access to the civil subpoena duces tecum power embodied in s. 805.07 (2). State v. Schaefer, 2008 WI 25, 308 Wis. 2d 279, 746 N.W.2d 457, 06-1826.

971.31 Annotation In order to admit evidence of alleged prior untruthful allegations of sexual assault under sub. (11) and s. 972.11 (2) (b) 3., the circuit court must first conclude from the proffered evidence that a jury could reasonably find that the complainant made prior untruthful allegations of sexual assault. The judge must determine whether a jury, acting reasonably, could find that it is more likely than not that the complainant made prior untruthful allegations of sexual assault. State v. Ringer, 2010 WI 69, 326 Wis. 2d 351, 785 N.W.2d 448, 08-0652.

971.31 Annotation Under sub. (11) and s. 972.11 (2) (b) 1., evidence of the complainant’s alleged past sexual conduct with the defendant is admissible only if the defendant makes a three-part showing that: 1) the proffered evidence relates to sexual activities between the complainant and the defendant; 2) the evidence is material to a fact at issue; and 3) the evidence of sexual contact with the complainant is of sufficient probative value to outweigh its inflammatory and prejudicial nature. In determining that evidence of prior sexual conduct has a highly prejudicial effect, the legislature crafted into the rape shield law a balancing test that assumes, absent an evidentiary showing to the contrary, that the proffered evidence is more prejudicial than probative. State v. Sarfraz, 2014 WI 78, 356 Wis. 2d 460, 851 N.W.2d 235, 12-0337.

971.31 Annotation A court is under no obligation to hold an evidentiary hearing if a defendant’s motion presents nothing more than conclusory allegations and fails to show that there are any factual disputes that require a hearing. State v. Radder, 2018 WI App 36, 382 Wis. 2d 749, 915 N.W.2d 180, 16-1954.

971.31 Annotation The purpose of sub. (10) is to promote judicial economy by offering defendants an incentive to plead guilty in cases in which a crucial issue is whether the order denying a motion to suppress was proper. The statute serves this purpose because defendants are more likely to plead guilty when they know that, if it is determined on appeal that the circuit court erroneously failed to suppress evidence, their convictions will be reversed and they will be entitled to trials unless the state proves that the error was harmless. State v. Abbott, 2020 WI App 25, 392 Wis. 2d 232, 944 N.W.2d 8, 19-0021.

971.31 Annotation Under Armstrong, 223 Wis. 2d 331 (1999), sub. (10) appeals are subject to a harmless error test. Although the manifest injustice standard applies when a defendant seeks to withdraw a guilty plea based on an error in the plea colloquy, a plea colloquy error is not governed by sub. (10). State v. Abbott, 2020 WI App 25, 392 Wis. 2d 232, 944 N.W.2d 8, 19-0021.

971.31 Annotation The press and public have no constitutional right to attend a pretrial suppression hearing when the defendant demands a closed hearing to avoid prejudicial publicity. Gannett Co. v. DePasquale, 443 U.S. 368, 99 S. Ct. 2898, 61 L. Ed. 2d 608 (1979).

971.315 971.315 Inquiry upon dismissal. Before a court dismisses a criminal charge against a person, the court shall inquire of the district attorney whether he or she has complied with s. 971.095 (2).

971.315 History History: 1997 a. 181.

971.32 971.32 Ownership, how alleged. In an indictment, information or complaint for a crime committed in relation to property, it shall be sufficient to state the name of any one of several co-owners, or of any officer or manager of any corporation, limited liability company or association owning the same.

971.32 History History: 1993 a. 112, 491.

971.33 971.33 Possession of property, what sufficient. In the prosecution of a crime committed upon or in relation to or in any way affecting real property or any crime committed by stealing, damaging or fraudulently receiving or concealing personal property, it is sufficient if it is proved that at the time the crime was committed either the actual or constructive possession or the general or special property in any part of such property was in the person alleged to be the owner thereof.

971.34 971.34 Intent to defraud. Where the intent to defraud is necessary to constitute the crime it is sufficient to allege the intent generally; and on the trial it shall be sufficient if there appears to be an intent to defraud the United States or any state or any person.

971.36 971.36 Theft; pleading and evidence; subsequent prosecutions.

971.36(1) (1) In any criminal pleading for theft, it is sufficient to charge that the defendant did steal the property (describing it) of the owner (naming the owner) of the value of (stating the value in money).

971.36(2) (2) Any criminal pleading for theft may contain a count for receiving the same property and the jury may find all or any of the persons charged guilty of either of the crimes.

971.36(3) (3) In any case of theft involving more than one theft, all thefts may be prosecuted as a single crime if one of the following applies:

971.36(3)(a) (a) The property belonged to the same owner and the thefts were committed pursuant to a single intent and design or in execution of a single deceptive scheme.

971.36(3)(b) (b) The property belonged to the same owner and was stolen by a person in possession of it.

971.36(3)(c) (c) The property belonged to more than one owner and was stolen from the same place pursuant to a single intent and design.

971.36(3)(d) (d) If the property is mail, as defined in s. 943.204 (1) (d), the property was stolen from one or more owners during a course of conduct, as defined in s. 947.013 (1) (a).

971.36(4) (4) In any case of theft involving more than one theft but prosecuted as a single crime, it is sufficient to allege generally a theft of property to a certain value committed between certain dates, without specifying any particulars. On the trial, evidence may be given of any such theft committed on or between the dates alleged; and it is sufficient to maintain the charge and is not a variance if it is proved that any property was stolen during such period. But an acquittal or conviction in any such case does not bar a subsequent prosecution for any acts of theft on which no evidence was received at the trial of the original charge. In case of a conviction on the original charge on a plea of guilty or no contest, the district attorney may, at any time before sentence, file a bill of particulars or other written statement specifying what particular acts of theft are included in the charge and in that event conviction does not bar a subsequent prosecution for any other acts of theft.

971.36 History History: 1993 a. 486; 2019 a. 144.

971.36 Annotation The legislature in sub. (3) (a) has explicitly provided prosecutors with discretion to charge multiple thefts as a single crime when the property belonged to the same owner and the thefts were committed pursuant to a single intent and design or in execution of a single deceptive scheme. State v. Jacobsen, 2014 WI App 13, 352 Wis. 2d 409, 842 N.W.2d 365, 13-0830.

971.36 Annotation Subs. (3) (a) and (4) allow for aggregation of the value of property alleged stolen when multiple acts of theft are prosecuted as one count. Reading s. 943.20 (1) (a) and subs. (3) (a) and (4) together, multiple acts of theft occurring over a period of time may, in certain circumstances, constitute one continuous offense that is not complete until the last act is completed. State v. Elverman, 2015 WI App 91, 366 Wis. 2d 169, 873 N.W.2d 528, 14-0354.

971.36 Annotation “Theft” under this section includes retail theft under s. 943.50. State v. Lopez, 2019 WI 101, 389 Wis. 2d 156, 936 N.W.2d 125, 17-0913.

971.365 971.365 Crimes involving certain controlled substances.

971.365(1) (1) 

971.365(1)(a) (a) In any case under s. 961.41 (1) (em), 1999 stats., or s. 961.41 (1) (cm), (d), (dm), (e), (f), (g) or (h) involving more than one violation, all violations may be prosecuted as a single crime if the violations were pursuant to a single intent and design.

971.365(1)(b) (b) In any case under s. 961.41 (1m) (em), 1999 stats., or s. 961.41 (1m) (cm), (d), (dm), (e), (f), (g) or (h) involving more than one violation, all violations may be prosecuted as a single crime if the violations were pursuant to a single intent and design.

971.365(1)(c) (c) In any case under s. 961.41 (3g) (a) 2., 1999 stats., or s. 961.41 (3g) (dm), 1999 stats., or s. 961.41 (3g) (am), (c), (d), (e), or (g) involving more than one violation, all violations may be prosecuted as a single crime if the violations were pursuant to a single intent and design.

971.365(2) (2) An acquittal or conviction under sub. (1) does not bar a subsequent prosecution for any acts in violation of s. 961.41 (1) (em), 1999 stats., s. 961.41 (1m) (em), 1999 stats., s. 961.41 (3g) (a) 2., 1999 stats., or s. 961.41 (3g) (dm), 1999 stats., or s. 961.41 (1) (cm), (d), (dm), (e), (f), (g), or (h), (1m) (cm), (d), (dm), (e), (f), (g), or (h) or (3g) (am), (c), (d), (e), or (g) on which no evidence was received at the trial on the original charge.

971.365 History History: 1985 a. 328; 1987 a. 339; 1989 a. 121; 1993 a. 98, 118, 490; 1995 a. 448; 1999 a. 48; 2001 a. 109; 2003 a. 49; 2021 a. 179.

971.366 971.366 Use of another’s personal identifying information: charges. In any case under s. 943.201 or 943.203 involving more than one violation, all violations may be prosecuted as a single crime if the violations were pursuant to a single intent and design.

971.366 History History: 2003 a. 36.

971.367 971.367 False statements to financial institutions: charges. In any case under s. 946.79 involving more than one violation, all violations may be prosecuted as a single crime if the violations were pursuant to a single intent and design.

971.367 History History: 2003 a. 36.

971.37 971.37 Deferred prosecution programs; domestic abuse and child sexual abuse.

971.37(1) (1) In this section, “child sexual abuse” means an alleged violation of s. 940.225, 948.02, 948.025, 948.05, 948.06, 948.085, or 948.095 if the alleged victim is a minor and the person accused of, or charged with, the violation:

971.37(1)(a) (a) Lives with or has lived with the minor;

971.37(1)(b) (b) Is nearer of kin to the alleged victim than a 2nd cousin;

971.37(1)(c) (c) Is a guardian or legal custodian of the minor; or

971.37(1)(d) (d) Is or appears to be in a position of power or control over the minor.

971.37(1m) (1m) 

971.37(1m)(a) (a) The district attorney may enter into a deferred prosecution agreement under this section with any of the following:

971.37(1m)(a)1. 1. A person accused of or charged with child sexual abuse.

971.37(1m)(a)2. 2. An adult accused of or charged with a criminal violation of s. 940.19, 940.20 (1m), 940.201, 940.225, 940.23, 940.285, 940.30, 940.42, 940.43, 940.44, 940.45, 940.48, 941.20, 941.30, 943.01, 943.011, 943.14, 943.15, 946.49, 947.01 (1), 947.012 or 947.0125 and the conduct constituting the violation involved an act by the adult person against his or her spouse or former spouse, against an adult with whom the adult person resides or formerly resided or against an adult with whom the adult person has created a child.

971.37(1m)(a)3. 3. A person accused of or charged with a violation of s. 813.12 (8) (a).

971.37(1m)(b) (b) The agreement shall provide that the prosecution will be suspended for a specified period if the person complies with conditions specified in the agreement. The agreement shall be in writing, signed by the district attorney or his or her designee and the person, and shall provide that the person waives his or her right to a speedy trial and that the agreement will toll any applicable civil or criminal statute of limitations during the period of the agreement, and, furthermore, that the person shall file with the district attorney a monthly written report certifying his or her compliance with the conditions specified in the agreement. The district attorney shall provide the spouse of the accused person and the alleged victim or the parent or guardian of the alleged victim with a copy of the agreement.

971.37(1m)(c) (c)

971.37(1m)(c)1. 1. The agreement may provide as one of its conditions that an adult covered under par. (a) 2. or 3. pay the domestic abuse surcharge under s. 973.055 and, if applicable, the global positioning system tracking surcharge under s. 973.057. If the agreement requires the person to pay the global positioning system tracking surcharge under s. 973.057, the agreement shall also require the person to pay the domestic abuse surcharge under s. 973.055. Payments and collections of the domestic abuse surcharge and the global positioning system tracking surcharge under this subdivision are subject to s. 973.055 (2) to (4) or to s. 973.057 (2) and (3), respectively, except as follows:

971.37(1m)(c)1.a. a. The district attorney shall determine the amount due. The district attorney may authorize less than a full surcharge if he or she believes that full payment would have a negative impact on the offender’s family. The district attorney shall provide the clerk of circuit court with the information necessary to comply with subd. 1. b.

971.37(1m)(c)1.b. b. The clerk of circuit court shall collect the amount due from the person and transmit it to the county treasurer.

971.37(1m)(c)2. 2. If the prosecution is resumed under sub. (2) and the person is subsequently convicted, a court shall give the person credit under s. 973.055 and, if applicable, s. 973.057 for any amount paid under subd. 1.

971.37(2) (2) The written agreement shall be terminated and the prosecution may resume upon written notice by either the person or the district attorney to the other prior to completion of the period of the agreement.

971.37(3) (3) Upon completion of the period of the agreement, if the agreement has not been terminated under sub. (2), the court shall dismiss, with prejudice, any charge or charges against the person in connection with the crime specified in sub. (1m), or if no such charges have been filed, none may be filed.

971.37(4) (4) Consent to a deferred prosecution under this section is not an admission of guilt and the consent may not be admitted in evidence in a trial for the crime specified in sub. (1m), except if relevant to questions concerning the statute of limitations or lack of speedy trial. No statement relating to the crime, made by the person in connection with any discussions concerning deferred prosecution or to any person involved in a program in which the person must participate as a condition of the agreement, is admissible in a trial for the crime specified in sub. (1m).

971.37(5) (5) This section does not preclude use of deferred prosecution agreements for any alleged violations not subject to this section.

971.37 History History: 1979 c. 111; 1981 c. 88, 366; 1983 a. 204; 1987 a. 27; 1987 a. 332 s. 64; 1991 a. 39; 1993 a. 227, 262, 319; 1995 a. 343, 353, 456; 1997 a. 35, 143; 2003 a. 139; 2005 a. 277; 2011 a. 35, 266; 2015 a. 172.

971.37 Annotation The provision of sub. (4) that consent to a deferred prosecution is not an admission of guilt and the consent may not be admitted in evidence in a trial for the crime is not rendered meaningless if an agreement may require an admission of guilt. Sub. (4) means that, should a deferred prosecution agreement be revoked, the defendant’s willingness to enter the agreement may not be admitted at trial as evidence of guilt. When a deferred prosecution agreement requires a defendant to enter a plea as a condition, it is the plea itself and not the agreement that constitutes the acknowledgement of guilt. Indeed, if the agreement is dissolved, the plea remains. State v. Daley, 2006 WI App 81, 292 Wis. 2d 517, 716 N.W.2d 146, 05-0048.

971.375 971.375 Deferred prosecution agreements; sanctions. The district attorney may subject a defendant to sanctions as provided in the system developed under s. 301.03 (3) (a) if the defendant violates a condition of a deferred prosecution agreement.

971.375 History History: 2013 a. 196.

971.38 971.38 Deferred prosecution program; community service work.

971.38(1) (1) Except as provided in s. 967.055 (3), the district attorney may require as a condition of any deferred prosecution program for any crime that the defendant perform community service work for a public agency or a nonprofit charitable organization. The number of hours of work required may not exceed what would be reasonable considering the seriousness of the alleged offense. An order may only apply if agreed to by the defendant and the organization or agency. The district attorney shall ensure that the defendant is provided a written statement of the terms of the community service order and that the community service order is monitored.

971.38(2) (2) Any organization or agency acting in good faith to which a defendant is assigned pursuant to an order under this section has immunity from any civil liability in excess of $25,000 for acts or omissions by or impacting on the defendant.

971.38 History History: 1981 c. 88; 1987 a. 101.

971.39 971.39 Deferred prosecution program; agreements with department.

971.39(1) (1) Except as provided in s. 967.055 (3), in counties having a population of less than 100,000, if a defendant is charged with a crime, the district attorney, the department and a defendant may all enter into a deferred prosecution agreement which includes, but is not limited to, the following conditions:

971.39(1)(a) (a) The agreement shall be in writing, signed by the district attorney or his or her designee, a representative of the department and the defendant.