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Plea-Withdrawal – Pre-Sentence – “Substantial Prejudice” to State: Absence of Assertion

State v. Barry M. Jenkins, 2006 WI App 28, overruled on other grounds, 2007 WI 96
For Jenkins: Melinda A. Swartz, SPD, Milwaukee Appellate


¶31      Our conclusion that Jenkins had a fair and just reason for plea withdrawal does not end our inquiry.  We must consider whether the State would be substantially prejudiced by the plea withdrawal. See id., ¶28.  The trial court never considered prejudice, but we note that neither at the trial court nor on appeal does the State suggest that it would have been prejudiced in any way if the plea withdrawal had been allowed. In the absence of even an assertion of prejudice, we conclude that the trial court erroneously exercised its discretion when it denied Jenkins’s pre-sentencing motion to withdraw his plea. See State v. Shanks, 152 Wis. 2d 284, 292, 448 N.W.2d 264 (Ct. App. 1989) (concluding defendant should have been allowed to withdraw plea where he proved a fair and just reason and the State made no argument that it would be substantially prejudiced by the defendant’s plea withdrawal). Therefore, we reverse and remand for further proceedings.

Because the court of appeals was overruled on other grounds (indeed, the State didn’t even dispute prejudice in the supreme court), the holding quoted above should remain viable.

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