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Due Process – Notice of Charge – Amendment of Information at Close of Case<

State v. Davon R. Malcom, 2001 WI App 291, PFR filed 11/27/01
For Malcom: John D. Lubarsky, SPD, Madison Appellate

Issue: Whether the trial court properly amended the information, after close of evidence, to add a charge of keeping a place “which is resorted to by persons using controlled substances” to the charge of using the same place to manufacture, keep or deliver controlled substances (both charges being alternatives under § 961.41(2).

Holding: An amendment to the charge must satisfy two tests: it must not be “wholly unrelated” to the facts at the preliminary hearing; and it must not violate right to notice of the charge. ¶26. Both tests are satisfied here: the added charge was covered by the same statute; Malcom’s statement to the police supported the new charge; the evidence relied on by the state to prove the original charge was the same evidence that supported the added charge; both charges covered the same witnesses, same location, and same physical evidence; Malcom made no showing that he would have presented different witnesses to the added charge. ¶28.

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