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Judicial Substitution, § 971.20(5) – Request Must Be Made before Determination of Guilt

State v. William Allen Wisth, 2009 WI App 53, PFR filed 4/29/09
For Wisth: Jeremy Perri, SPD, MilwaukeeAppellate

Issue/Holding: Defendant not entitled to request substitution of judge assigned to sentencing following revocation; § 971.20(5) is limited to pre-guilt phases:

¶14   We conclude that the plain meaning of Wis. Stat. § 971.20(5) is that substitution is permitted only prior to trial. When the issue of guilt or lack of guilt is resolved, a criminal “trial” is complete for purposes of this statute. Section 971.20(5) did not provide authority for Wisth to seek a substitution prior to his sentencing after revocation. Therefore, we affirm the judgment.

Relatively detailed discussion of statutory history, ¶¶10-13, supporting “legislative intent to limit substitutions of newly assigned judges to requests prior to trial.”

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