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Judicial – Substitution – § 971.20(5) – Timeliness of Request, Newly Assigned Judge

State v. Van G. Norwood, 2005 WI App 218
For Norwood: Terry Evans Williams

Issue/Holding: Defendant’s withdrawal of his NGI plea prevented him from later invoking the right of judicial substitution provided by § 971.20(5), where a new judge was subsequently assigned and no prior right to substitution invoked.

The court’s analysis doesn’t track the actual language of the statute – “Because Norwood’s plea withdrawal constitutes a ‘proceeding’ within the meaning of § 971.20(5), his argument fails,” ¶12. The statute prescribes that the substitution request be made “prior to the commencement of the proceedings.” The natural reading – “commencement” would be filing of a criminal complaint – is obviously nonsensical. The court apparently reads it to mean that when the defendant takes some sort of action s/he has commenced a proceeding hence thrown him or herself outside the statute.

 

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