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Section 971.20 – Substitution of judge

May 14, 2021 | Criminal Procedure, Wisconsin

(1) DEFINITION. In this section, “action” means all proceedings before a court from the filing of a complaint to final disposition at the trial level.
(2) ONE SUBSTITUTION. In any criminal action, the defendant has a right to only one substitution of a judge, except under sub. (7). The right of substitution shall be exercised as provided in this section.
(3) SUBSTITUTION OF JUDGE ASSIGNED TO PRELIMINARY EXAMINATION.

(a) In this subsection, “judge” includes a circuit court commissioner who is assigned to conduct the preliminary examination.
(b) A written request for the substitution of a different judge for the judge assigned to preside at the preliminary examination may be filed with the clerk, or with the court at the initial appearance. If filed with the clerk, the request must be filed at least 5 days before the preliminary examination unless the court otherwise permits. Substitution of a judge assigned to a preliminary examination under this subsection exhausts the right to substitution for the duration of the action, except under sub. (7).
(4) SUBSTITUTION OF TRIAL JUDGE ORIGINALLY ASSIGNED. A written request for the substitution of a different judge for the judge originally assigned to the trial of the action may be filed with the clerk before making any motions to the trial court and before arraignment.
(5) SUBSTITUTION OF TRIAL JUDGE SUBSEQUENTLY ASSIGNED. If a new judge is assigned to the trial of an action and the defendant has not exercised the right to substitute an assigned judge, a written request for the substitution of the new judge may be filed with the clerk within 15 days of the clerk’s giving actual notice or sending notice of the assignment to the defendant or the defendant’s attorney. If the notification occurs within 20 days of the date set for trial, the request shall be filed within 48 hours of the clerk’s giving actual notice or sending notice of the assignment. If the notification occurs within 48 hours of the trial or if there has been no notification, the defendant may make an oral or written request for substitution prior to the commencement of the proceedings.
(6) SUBSTITUTION OF JUDGE IN MULTIPLE DEFENDANT ACTIONS. In actions involving more than one defendant, the request for substitution shall be made jointly by all defendants. If severance has been granted and the right to substitute has not been exercised prior to the granting of severance, the defendant or defendants in each action may request a substitution under this section.
(7) SUBSTITUTION OF JUDGE FOLLOWING APPEAL. If an appellate court orders a new trial or sentencing proceeding, a request under this section may be filed within 20 days after the filing of the remittitur by the appellate court, whether or not a request for substitution was made prior to the time the appeal was taken.
(8) PROCEDURES FOR CLERK. Upon receiving a request for substitution, the clerk shall immediately contact the judge whose substitution has been requested for a determination of whether the request was made timely and in proper form. If no determination is made within 7 days, the clerk shall refer the matter to the chief judge for the determination and reassignment of the action as necessary. If the request is determined to be proper, the clerk shall request the assignment of another judge under s. 751.03.
(9) JUDGE’S AUTHORITY TO ACT. Upon the filing of a request for substitution in proper form and within the proper time, the judge whose substitution has been requested has no authority to act further in the action except to conduct the initial appearance, accept pleas and set bail.
(10) FORM OF REQUEST. A request for substitution of a judge may be made in the following form:

STATE OF WISCONSIN

CIRCUIT COURT

…. County

State of Wisconsin

vs.

….(Defendant)

Pursuant to s. 971.20 the defendant (or defendants) request (s) a substitution for the Hon. …. as judge in the above entitled action.

Dated …., …. (year)

….(Signature of defendant or defendant’s attorney)

(11) RETURN OF ACTION TO SUBSTITUTED JUDGE. Upon the filing of an agreement signed by the defendant or defendant’s attorney and by the prosecuting attorney, the substituted judge and the substituting judge, the criminal action and all pertinent records shall be transferred back to the substituted judge.

Wis. Stat. ยง 971.20

1981 c. 137; 1987 a. 27; 1997 a. 250; 2001 a. 61.

See the 1979-80 Statutes for notes and annotations relating to 971.20 prior to its repeal and recreation by ch. 137, laws of 1981.