Chapter 971

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.

971.11 Annotation Whether dismissal under sub. (7) is with or without prejudice is within the court’s discretion. State v. Davis, 2001 WI 136, 248 Wis. 2d 986, 637 N.W.2d 62, 00-0889.

971.11 Annotation 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, 03-3191.

971.11 Annotation 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 this section are forfeited. State v. Asmus, 2010 WI App 48, 324 Wis. 2d 427, 782 N.W.2d 435, 08-2980.

971.11 Annotation The specific conclusion by the Davis, 2001 WI 136, and Adams, 207 Wis. 2d 568 (1996), 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, 12-2243.

971.12 971.12 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.

971.12(2) (2) 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.

971.12(3) (3) 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.

971.12(4) (4) 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.

971.12 History History: 1993 a. 486.

971.12 Annotation If two 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 (1971).

971.12 Annotation Severance is not required if the two 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 (1974).

971.12 Annotation Due process of law was not violated, nor did the trial court abuse its discretion, by denying the defendant’s motion to sever three counts of sex offenses from a count of first-degree murder. Bailey v. State, 65 Wis. 2d 331, 222 N.W.2d 871 (1974).

971.12 Annotation 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 (1975).

971.12 Annotation 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 (1977).

971.12 Annotation 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 (1978).

971.12 Annotation 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 (1979).

971.12 Annotation 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 (1980).

971.12 Annotation The trial court did not abuse its discretion in denying a severance motion and failing to caution the jury against prejudice when two counts were joined. State v. Bettinger, 100 Wis. 2d 691, 303 N.W.2d 585 (1981).

971.12 Annotation 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 (1981).

971.12 Annotation The trial court abused its discretion in denying a motion for severance of codefendants’ trials when the codefendant did not intend to testify and the movant made an initial showing that the codefendant’s testimony would have established the movant's alibi defense and the movant's entire defense was based on the alibi. State v. Brown, 114 Wis. 2d 554, 338 N.W.2d 857 (Ct. App. 1983).

971.12 Annotation 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).

971.12 Annotation Misjoinder was harmless error. State v. Leach, 124 Wis. 2d 648, 370 N.W.2d 240 (1985).

971.12 Annotation 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).

971.12 Annotation 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.

971.12 Annotation 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.

971.12 Annotation Simultaneous trials of two defendants before two 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.

971.12 Annotation For severance to be granted, it is not sufficient to show that some prejudice is 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, 09-2256.

971.12 Annotation Sub. (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, 13-2686.

971.12 Annotation 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, 13-2686.

971.12 Annotation In evaluating the potential for prejudice, when evidence of the counts sought to be severed would be admissible in separate trials, the risk of prejudice arising because of joinder is generally not significant. State v. Watkins, 2021 WI App 37, 398 Wis. 2d 558, 961 N.W.2d 884, 19-1996.

971.12 Annotation Criminal Law—Joinder and Severance Under the New Wisconsin Criminal Procedure Code. 1971 WLR 604.

971.13 971.13 Competency.

971.13(1) (1) 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.

971.13(2) (2) A defendant shall not be determined incompetent to proceed solely because medication has been or is being administered to restore or maintain competency.

971.13(3) (3) 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.

971.13(4) (4) The fact that a defendant is not competent to proceed does not preclude a hearing under s. 968.38 (4) or (5) unless the probable cause finding required to be made at the hearing cannot be fairly made without the personal participation of the defendant.

971.13 History History: 1981 c. 367; 1997 a. 182; 1999 a. 188.

971.13 Note 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).

971.13 Note 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 (1980).

971.13 Note 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).

971.13 Note 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]

971.13 Annotation 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 (1986).

971.13 Annotation 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 (1997), 95-0907.

971.13 Annotation 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 (1997), 95-1938.

971.13 Annotation 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.

971.13 Annotation This section codifies the two-part “understand-and-assist” due process test for determining competency set forth in Dusky, 362 U.S. 402 (1960), that considers whether a defendant: 1) has sufficient present ability to consult with the defendant's 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 the defendant lacks the capacity to understand the nature and object of the proceedings, to consult with counsel, and to assist in the preparation of the defense. State v. Byrge, 2000 WI 101, 237 Wis. 2d 197, 614 N.W.2d 477, 97-3217. See also State v. Smith, 2016 WI 23, 367 Wis. 2d 483, 878 N.W.2d 135, 13-1228.

971.13 Annotation 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, 00-1586.

971.13 Annotation A judge who carefully considered the transcribed record and the judge's 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, 01-0263.

971.13 Annotation Reversed on other grounds. 2003 WI 104, 263 Wis. 2d 794, 666 N.W.2d 859, 01-0263.

971.13 Annotation 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, 01-0263.

971.14 971.14 Competency proceedings.

971.14(1g) (1g) Definition. In this section, “department” means the department of health services.

971.14(1r) (1r) Proceedings.

971.14(1r)(a) (a) The court shall proceed under this section whenever there is reason to doubt a defendant’s competency to proceed.

971.14(1r)(b) (b) 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).

971.14(1r)(c) (c) 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).

971.14(2) (2) Examination.

971.14(2)(a) (a) 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.

971.14(2)(am) (am) 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.

971.14(2)(b) (b) 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.

971.14(2)(c) (c) 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.

971.14(2)(d) (d) 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.

971.14(2)(e) (e) 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).

971.14(2)(f) (f) 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.

971.14(2)(g) (g) The defendant may be examined for competency purposes at any stage of the competency proceedings by physicians or other experts chosen by the defendant or by the district attorney, who shall be permitted reasonable access to the defendant for purposes of the examination.

971.14(3) (3) Report. The examiner shall submit to the court a written report which shall include all of the following:

971.14(3)(a) (a) A description of the nature of the examination and an identification of the persons interviewed, the specific records reviewed and any tests administered to the defendant.

971.14(3)(b) (b) The clinical findings of the examiner.

971.14(3)(c) (c) The examiner’s opinion regarding the defendant’s present mental capacity to understand the proceedings and assist in his or her defense.

971.14(3)(d) (d) If the examiner reports that the defendant lacks competency, the examiner’s opinion regarding the likelihood that the defendant, if provided treatment, may be restored to competency within the time period permitted under sub. (5) (a). The examiner shall provide an opinion as to whether the defendant’s treatment should occur in an inpatient facility designated by the department, in a community-based treatment program under the supervision of the department, or in a jail or a locked unit of a facility that has entered into a voluntary agreement with the state to serve as a location for treatment.

971.14(3)(dm) (dm) If sufficient information is available to the examiner to reach an opinion, the examiner’s opinion on whether the defendant needs medication or treatment and whether the defendant is not competent to refuse medication or treatment. The defendant is not competent to refuse medication or treatment if, because of mental illness, developmental disability, alcoholism or drug dependence, and after the advantages and disadvantages of and alternatives to accepting the particular medication or treatment have been explained to the defendant, one of the following is true:

971.14(3)(dm)1. 1. The defendant is incapable of expressing an understanding of the advantages and disadvantages of accepting medication or treatment and the alternatives.

971.14(3)(dm)2. 2. The defendant is substantially incapable of applying an understanding of the advantages, disadvantages and alternatives to his or her mental illness, developmental disability, alcoholism or drug dependence in order to make an informed choice as to whether to accept or refuse medication or treatment.

971.14(3)(e) (e) The facts and reasoning, in reasonable detail, upon which the findings and opinions under pars. (b) to (dm) are based.

971.14(4) (4) Hearing.

971.14(4)(a) (a) The court shall cause copies of the report to be delivered forthwith to the district attorney and the defense counsel, or the defendant personally if not represented by counsel. Upon the request of the sheriff or jailer charged with care and control of the jail in which the defendant is being held pending or during a trial or sentencing proceeding, the court shall cause a copy of the report to be delivered to the sheriff or jailer. The sheriff or jailer may provide a copy of the report to the person who is responsible for maintaining medical records for inmates of the jail, or to a nurse, physician, or physician assistant who is a health care provider for the defendant or who is responsible for providing health care services to inmates of the jail. The report shall not be otherwise disclosed prior to the hearing under this subsection.