971.11 Prompt disposition of intrastate detainers. (1) Whenever the warden or superintendent receives notice of an untried criminal case pending in this state against an inmate of a state prison, the warden or superintendent shall, at the request of the inmate, send by certified mail a written request to the district attorney for prompt disposition of the case. The request shall state the sentence then being served, the date of parole eligibility, if applicable, or the date of release to extended supervision, the approximate discharge or conditional release date, and prior decision relating to parole. If there has been no preliminary examination on the pending case, the request shall state whether the inmate waives such examination, and, if so, shall be accompanied by a written waiver signed by the inmate. (2) If the crime charged is a felony, the district attorney shall either move to dismiss the pending case or arrange a date for preliminary examination as soon as convenient and notify the warden or superintendent of the prison thereof, unless such examination has already been held or has been waived. After the preliminary examination or upon waiver thereof, the district attorney shall file an information, unless it has already been filed, and mail a copy thereof to the warden or superintendent for service on the inmate. The district attorney shall bring the case on for trial within 120 days after receipt of the request subject to s. 971.10. (3) If the crime charged is a misdemeanor, the district attorney shall either move to dismiss the charge or bring it on for trial within 90 days after receipt of the request. (4) If the defendant desires to plead guilty or no contest to the complaint or to the information served upon him or her, the defendant shall notify the district attorney thereof. The district attorney shall thereupon arrange for the defendant’s arraignment as soon as possible and the court may receive the plea and pronounce judgment. (5) If the defendant wishes to plead guilty to cases pending in more than one county, the several district attorneys involved may agree with the defendant and among themselves for all such pleas to be received in the appropriate court of one of such counties, and s. 971.09 shall govern the procedure thereon so far as applicable. (6) The prisoner shall be delivered into the custody of the sheriff of the county in which the charge is pending for transportation to the court, and the prisoner shall be retained in that custody during all proceedings under this section. The sheriff shall return the prisoner to the prison upon the completion of the proceedings and during any adjournments or continuances and between the preliminary examination and the trial, except that if the department certifies a jail as being suitable to detain the prisoner, he or she may be detained there until the court disposes of the case. The prisoner’s existing sentence continues to run and he or she receives time credit under s. 302.11 while in custody. (7) If the district attorney moves to dismiss any pending case or if it is not brought on for trial within the time specified in sub. (2) or (3) the case shall be dismissed unless the defendant has es-
May 22, 2026, are designated by NOTES. (Published 5-22-26)
971.11
PROCEEDINGS BEFORE AND AT TRIAL
caped or otherwise prevented the trial, in which case the request for disposition of the case shall be deemed withdrawn and of no further legal effect. Nothing in this section prevents a trial after the period specified in sub. (2) or (3) if a trial commenced within such period terminates in a mistrial or a new trial is granted. History: 1983 a. 528; 1989 a. 31; 1993 a. 486; 1995 a. 48; 1997 a. 283. A request for prompt disposition under this section must comply with sub. (1) in order to impose on the state the obligation to bring the case to trial within 120 days. State v. Adams, 207 Wis. 2d 568, 558 N.W.2d 923 (Ct. App. 1996), 96-1680. Whether dismissal under sub. (7) is with or without prejudice is within the court’s discretion. State v. Davis, 2001 WI 136, 248 Wis. 2d 986, 637 N.W.2d 62, 00-0889. The responsibility for complying with the sub. (2) 120-day time limit for bringing a case to trial cannot be imposed on the defendant. Once the district attorney receives the request under sub. (1), the responsibility for prompt disposition is placed on the district attorney. The trial court erred when it failed to dismiss the case when the 120-day time limit was not met. State v. Lewis, 2004 WI App 211, 277 Wis. 2d 446, 690 N.W.2d 668, 03-3191. Violations of the right to a speedy trial are waived by entry of a guilty plea. When a defendant chooses to accept a plea agreement rather than inconveniencing the district attorney by requiring the filing of a new complaint, the protections of this section are forfeited. State v. Asmus, 2010 WI App 48, 324 Wis. 2d 427, 782 N.W.2d 435, 08-2980. The specific conclusion by the Davis, 2001 WI 136, and Adams, 207 Wis. 2d 568 (1996), courts was that the “subject to s. 971.10” language following the 120-day time period in sub. (2) refers to the court’s authority to grant a continuance for the reasons specified in s. 971.10 (3) (a). The defendant’s conclusion that the 120-day time period cannot be extended is fundamentally inconsistent with the Davis court’s conclusion that failure to bring a case to trial within 120 days triggers dismissal, which can be without prejudice and allow for refiling. State v. Butler, 2014 WI App 4, 352 Wis. 2d 484, 844 N.W.2d 392, 12-2243.
971.12
Joinder of crimes and of defendants. (1) JOINDER OF CRIMES. Two or more crimes may be charged in the same complaint, information or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors, or both, are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan. When a misdemeanor is joined with a felony, the trial shall be in the court with jurisdiction to try the felony. (2) JOINDER OF DEFENDANTS. Two or more defendants may be charged in the same complaint, information or indictment if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting one or more crimes. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count. (3) RELIEF FROM PREJUDICIAL JOINDER. If it appears that a defendant or the state is prejudiced by a joinder of crimes or of defendants in a complaint, information or indictment or by such joinder for trial together, the court may order separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. The district attorney shall advise the court prior to trial if the district attorney intends to use the statement of a codefendant which implicates another defendant in the crime charged. Thereupon, the judge shall grant a severance as to any such defendant. (4) TRIAL TOGETHER OF SEPARATE CHARGES. The court may order 2 or more complaints, informations or indictments to be tried together if the crimes and the defendants, if there is more than one, could have been joined in a single complaint, information or indictment. The procedure shall be the same as if the prosecution were under such single complaint, information or indictment. History: 1993 a. 486. If two defendants were charged and the cases consolidated, and one then pleads guilty, there is no need for a severance, especially if the trial is to the court. Nicholas v. State, 49 Wis. 2d 678, 183 N.W.2d 8 (1971). Severance is not required if the two charges involving a single act or transaction are so inextricably intertwined so as to make proof of one crime impossible without proof of the other. Holmes v. State, 63 Wis. 2d 389, 217 N.W.2d 657 (1974). Due process of law was not violated, nor did the trial court abuse its discretion, by denying the defendant’s motion to sever three counts of sex offenses from a count of first-degree murder. Bailey v. State, 65 Wis. 2d 331, 222 N.W.2d 871 (1974). In a joint trial on charges of burglary and obstructing an officer, while evidence as to the fabrication of an alibi by the defendant was probative as to the burglary, the
Updated 23-24 Wis. Stats.
12
substantial danger that the jury might employ the evidence as affirmative proof of the elements of that crime, for which the state was required to introduce separate and independent evidence showing guilt beyond a reasonable doubt, required the court to administer a clear and certain cautionary instruction that the jury should not consider evidence on the obstructing count as sufficient in itself to find the defendant guilty of burglary. Peters v. State, 70 Wis. 2d 22, 233 N.W.2d 420 (1975). Joinder was not prejudicial to the defendant moving for severance when the possibly prejudicial effect of inadmissible hearsay regarding the other defendant was presumptively cured by instructions. State v. Jennaro, 76 Wis. 2d 499, 251 N.W.2d 800 (1977). If a codefendant’s antagonistic testimony merely corroborates overwhelming prosecution evidence, refusal to grant severance is not an abuse of discretion. Haldane v. State, 85 Wis. 2d 182, 270 N.W.2d 75 (1978). Joinder of charges against the defendant was proper when separate acts exhibited some modus operandi. Francis v. State, 86 Wis. 2d 554, 273 N.W.2d 310 (1979). The trial court properly deleted implicating references from a codefendant’s confession rather than granting the defendant’s motion for severance under sub. (3). Pohl v. State, 96 Wis. 2d 290, 291 N.W.2d 554 (1980). The trial court did not abuse its discretion in denying a severance motion and failing to caution the jury against prejudice when two counts were joined. State v. Bettinger, 100 Wis. 2d 691, 303 N.W.2d 585 (1981). Joinder is not prejudicial when the same evidence would be admissible under s. 904.04 if there were separate trials. State v. Hall, 103 Wis. 2d 125, 307 N.W.2d 289 (1981). The trial court abused its discretion in denying a motion for severance of codefendants’ trials when the codefendant did not intend to testify and the movant made an initial showing that the codefendant’s testimony would have established the movant's alibi defense and the movant's entire defense was based on the alibi. State v. Brown, 114 Wis. 2d 554, 338 N.W.2d 857 (Ct. App. 1983). Joinder under sub. (2) was proper when two robberies were instigated by one defendant’s prostitution and the other defendant’s systematic robbing of customers who refused to pay. State v. King, 120 Wis. 2d 285, 354 N.W.2d 742 (Ct. App. 1984). Misjoinder was harmless error. State v. Leach, 124 Wis. 2d 648, 370 N.W.2d 240 (1985). To be of “the same or similar character” under sub. (1), crimes must be of the same type, occur over a relatively short time period, and evidence as to each must overlap. State v. Hamm, 146 Wis. 2d 130, 430 N.W.2d 584 (Ct. App. 1988). If an appellate court vacates a conviction on one or more counts when multiple counts are tried together, the defendant is entitled to a new trial on the remaining counts upon showing compelling prejudice arising from evidence introduced to support the vacated counts. State v. McGuire, 204 Wis. 2d 372, 556 N.W.2d 111 (Ct. App. 1996), 95-3138. A violation of sub. (3) does not require a new trial in all cases but is subject to harmless error analysis. State v. King, 205 Wis. 2d 81, 555 N.W.2d 189 (Ct. App. 1996), 95-3442. Simultaneous trials of two defendants before two juries is permissible. An impermissible confession in one case not heard by the jury in that case accomplishes the required severance of the cases. State v. Avery, 215 Wis. 2d 45, 571 N.W.2d 907 (Ct. App. 1997), 96-2873. For severance to be granted, it is not sufficient to show that some prejudice is caused. Any joinder of offenses is apt to involve some element of prejudice to the defendant, since a jury is likely to feel that a defendant charged with several crimes must be a bad individual who has done something wrong. However, if the notion of involuntary joinder is to retain any validity, a higher degree of prejudice, or certainty of prejudice, must be shown before relief will be in order. State v. Linton, 2010 WI App 129, 329 Wis. 2d 687, 791 N.W.2d 222, 09-2256. Sub. (1) is broadly construed in favor of initial joinder. The court has historically favored initial joinder particularly when the charged crimes were all committed by the same defendant. State v. Salinas, 2016 WI 44, 369 Wis. 2d 9, 879 N.W.2d 609, 13-2686. In assessing whether separate crimes are sufficiently “connected together” for purposes of initial joinder under sub. (1), the court looks to a variety of factors, including: 1) are the charges closely related; 2) are there common factors of substantial importance; 3) did one charge arise out of the investigation of the other; 4) are the crimes close in time or close in location, or do the crimes involve the same victims; 5) are the crimes similar in manner, scheme, or plan; 6) was one crime committed to prevent punishment for another; and 7) would joinder serve the goals and purposes of this section. State v. Salinas, 2016 WI 44, 369 Wis. 2d 9, 879 N.W.2d 609, 13-2686. In evaluating the potential for prejudice, when evidence of the counts sought to be severed would be admissible in separate trials, the risk of prejudice arising because of joinder is generally not significant. State v. Watkins, 2021 WI App 37, 398 Wis. 2d 558, 961 N.W.2d 884, 19-1996. Criminal Law—Joinder and Severance Under the New Wisconsin Criminal Procedure Code. 1971 WLR 604.