Felony Criminal Court - Madison, Dane County, Wisconsin
Criminal Cases
In Wisconsin both felonies and misdemeanors are criminal charges
handled in Circuit Court. Unless a person is charged as an habitual
offender, the maximum confinement penalty for a misdemeanor is a year in the
county jail. Most misdemeanors have maximum penalties much less. Maximum
penalties are rare. Some misdemeanors have only a fine as a penalty. The
maximum fine is $10,000 or less for most misdemeanors. All
criminal cases give the defendant (and the government) the right to a jury
trial.
An ordinance violation carries only a monetary penalty and is not a
crime. Many misdemeanors can instead be charged as ordinance violations.
Virtually all felonies have maximum penalties that include potential
time in state prison. Prison and jail are not the same.
Either felonies or misdemeanors can result in probation, sometimes with
time in jail.
This page is about felony court procedure in Dane County, Wisconsin.
Procedures in other counties will be somewhat different; in other states
they will be very different.
See also:
Frequently Asked Questions about Criminal & Traffic Court
If a person is charged with both a felony and a misdemeanor at the same
time, both charges are usually charged in the same case and scheduled for
all purposes at the same time in the same court on one Criminal Complaint.
Arrest on a Felony in Dane County (Madison) Wisconsin
Often a felony charge starts with an arrest. An arrest can be made
if the officer has "probable cause" to believe a crime was committed. That
can be based on physical evidence, claims of witnesses, or
statements the officer claims were made by the defendant. The defendant is not allowed to post bond
at the jail or have
someone else post bond. A felony defendant must be seen by a judge or
magistrate. This may take some time. During that time, the only person from
outside the criminal justice system who can have face-to-face contact is
usually an attorney, police officer or probation agent.
In-of-Custody Initial Court Appearance for a Felony in Dane County
At a bail hearing there is usually a Criminal Complaint. The magistrate
or judge must be told what the arrest is for and shown some reason to
believe that it is a valid charge. A Criminal Complaint serves that purpose.
There are no bail hearings on weekends or legal holidays. It may take one or
more business days for the complaint to be prepared.
At the bail hearing the judge decides whether or not to release the
defendant prior to trial, and if so, under what conditions. Usually people
are released unless they have a history of violating bail conditions. If
there is a significant lack of ties to the community or other reason to
think the defendant might not show up for trial, cash bond may be required.
If it is it can be posted by cash, cashier's check, or credit/debit card.
Conditions of bond for felony cases often involve significant limitations on
the defendant's movement and activities.
At the bail hearing/initial appearance it is routine to waive the time
limit for a Preliminary Hearing if the defendant is released. There is a
right in felony cases to have a speedy determination of whether or not there
is any evidence for the charge(s). If the defendant is locked up, there is a
right to have such a hearing within ten (10) days. If released then the
right is to have such a hearing within twenty (20) days. Unless the time
limits are waived, the case will be set for a Preliminary Hearing within
those limits. If the time limits are waived the matter will be set for a
Status Conference. It is very important that a person consult an
experienced attorney as soon as possible and not wait until the Status
Conference or Preliminary Hearing.
The defendant will be notified of the place, date and time of the next
court appearance, usually a Status Conference on a Monday afternoon. No plea is taken at this appearance on felony charges; a not
guilty plea is entered on any related misdemeanor charges.
Summons and Complaint (or Warrant) for a Felony in Dane County (Madison)
Wisconsin
Rather than making an arrest, an officer can refer a case to the
prosecutor. This will often be done if there has been significant time
between the crime and the conclusion of an investigation in non-violent
offenses or if the defendant cannot easily be found for an arrest. If the prosecutor decides the case merits prosecution,
the prosecutor prepares a
criminal complaint based on the police reports. It will be accompanied by a
summons giving a date and time to appear, or by a warrant seeking the
defendant's arrest. If the defendant does not
show up in response to a summons, you've got it, a warrant for his/her arrest will be issued by the
court. This is true even if the defendant never received the summons.
Out-of-Custody Initial Court Appearance for a Felony in Dane County (Madison)
Wisconsin
The first appearance in court is called the "Initial Appearance"
not the
"Arraignment." In Dane County this is where you get the formal charge,
called a "Criminal Complaint" and bail is set. This initial
appearance happens if a complaint is filed and there has been no arrest. If
a warrant has been issued it usually is set upon the request of the defense
attorney who promises that the defendant will be present. If there is a
warrant, it remains in force until the court appearance.
The Criminal Complaint
is a formal document signed by a police officer under oath before a
prosecutor. It tells the court which crime(s) the defendant is charged with
and gives enough facts to support those charges. It tells the defendant what
the maximum (and minimum) penalties for the offense are. The complaint may
charge the crime which the police contemplated or something
different.
The bail is
almost always a "signature bond" where you promise to pay an amount of money
if you miss court or if you violate other conditions of your bond. Usual
conditions include not committing any crime, showing up for court, notifying
the court of any address change, and avoiding contact with victims or
witnesses. If a victim or witness is a family member or coworker this can
cause life problems. People innocent of their original charge sometimes end
up convicted of bail jumping for violating bond conditions.
The court automatically enters a "not guilty" plea at this appearance
for any misdemeanor charges. If
for any reason the defendant was not fingerprinted when initially arrested, the
court will order that the defendant go to the Public Safety Building and be booked. If
there have been problems in the past with compliance with bond conditions,
some cash bail may be required. If cash bail is required, the defendant is
held in custody until it is posted. Again, a requirement to post cash is
unusual when people come into court without having been arrested and held to
get them there. If a signature bond is set and cash was previously posted
the court will order the bail returned to the person who posted it.
At the Initial Appearance the prosecutor will usually know very little
about the case or the defendant. They are not usually in a position to make
any kind of sentencing recommendation. The Court Commissioner presiding will
know even less. The prosecutor at initial appearances will have been handed
a box of files on the way into court; he or she will not have read the
police reports and did not draft the Criminal Complaint.
If the defendant does not have a lawyer at this hearing information and
directions to the
State Public Defender's Office will be given.
Circumstances that can sometimes result in a defendant not being
released following an initial appearance
Unless the crime is very violent or there is reason to expect a risk of
non-appearance, the defendant is usually released following the initial
appearance. One reason to expect non-appearance is prior missed court
appearances in other cases. Another reason the defendant may be held is if
there is another case with a warrant or if there is a hold from a probation
or parole officer. If a defendant is on probation or parole or there are is
another warrant, it is very important that the defense attorney know this in
advance to be best able to help in keeping the defendant's freedom while
still presumed innocent.
Status Conference
The status conference is a jumbled meeting in the hallway outside Room 1A
at the courthouse. Prosecutors, defense lawyers, defendants and families are
milling around. The primary purpose of this conference is to find out if the
defendant wants a Preliminary Hearing. An offer may be made at this time,
but not usually. If the defendant wants a preliminary hearing a time and
date are set for that hearing. If the defendant wants to waive a Preliminary
Hearing at this time, the Court Commissioner will listen to that waiver and
make sure the defendant understands what he/she is giving up. This is done
in Room 1A and the case will be set for further proceedings. See
Arraignment.
Preliminary Hearing
A Preliminary Hearing is Wisconsin's substitute for a Grand Jury and is
only held in felony cases. The
purpose is to make sure that there is real evidence of a felony and that the
defendant committed that felony before everyone spends time and expense
preparing for a trial. It is not the trial. Instead of having to prove
things beyond a reasonable doubt, the prosecution merely has to produce
evidence that gives the magistrate reason to believe that the defendant
committed a felony. There is virtually no evidence that the defendant could
produce that would negate the prosecution's evidence at this level, so it is
rare that a defendant will present evidence at a preliminary hearing.
Nevertheless, it is a chance to question witnesses and get more information.
If the defendant wins the Preliminary Hearing and the case is dismissed,
that does not mean it is over. The prosecution can recharge the defendant
and bring in more evidence at the next preliminary hearing. Winning a
Preliminary Hearing is still
usually a very good thing.
At the time set for the Preliminary Hearing both sides may have more
information available and decide to waive the hearing rather than go ahead
with it. Some items of evidence are admissible at a Preliminary Hearing that
are not admissible at trial. The primary example of this is a result from
the blood test can be admitted without expert testimony at a Preliminary
Hearing but not at trial.
The Wisconsin Legislature virtually gutted preliminary hearings of
meaninfulness when they decided to allow hearsay evidence at these hearings
on substantative claims. Ther real witness to events may not have to appear
and testify. Because of this, preliminary hearings are waived more now than
they used to be.
If there were things wrong with the arrest or other police or court
procedures, the defense attorney may bring a request for a court order,
called a motion, before the court. Both sides may ask the court for an order
as to future procedures or trial rules. These motions will usually be set
for a separate hearing. At that hearing there may be people testifying and
other evidence introduced. Such motions are sometimes brought even if the
attorney bringing them does not expect to get the order requested. This can
be done for tactical reasons so long as there is a real basis for the
motion. Suppression motions may be brought challenging the
admissibility of statements or of results of a questionable search.
Pretrial Hearings
One or more court dates titled a "pretrial hearing" will be scheduled.
Such hearings are for the defense attorney and prosecutor to bring the court
up-to-date on the status of the case. They usually involve discussions of
the case between the lawyers followed by a brief court appearance. Although
the time before the judge is usually brief, a pretrial hearing can take
several hours because of court scheduling. In Dane County, the scheduling notice for a
pretrial hearing will often also contain scheduling information for jury
selection and jury trial dates.
Jury Selection
Jury selection in Dane County is always done on a Monday morning. (If
Monday is a legal holiday, Jury Selection for that week is done on Tuesday.)
During Jury Selection both sides are allowed to ask questions of prospective
jurors to assure that they can be fair. Neither side gets to pick who they
want to be on the jury; instead each side can indicate some people from the
panel that they do not want on the jury. In other counties, jury selection
is usually done the morning of the trial. Many cases will be scheduled for
jury selection in Dane County on the same day for the convenience of
prospective jurors and the courts.
Jury Trial
Trial by jury is a constitutional right for the defendant (and a
statutory right for the government). At a jury trial the government must
prove beyond a reasonable doubt that the defendant committed the crime(s)
charged. The defendant does not have to prove anything. The defendant has
the right to testify and call witnesses but is not required to do so.
Evidence presented by either side is subject to cross examination
(questioning) by the other side. Jurors may be permitted to ask questions.
Both sides get to give a brief statement at the beginning of the trial about
what they expect the evidence to show and at the end of the case about what
they believe the evidence did show. The judge explains the law to the jurors
before they decide the case. All of the jurors must agree on any verdict in
a criminal case (guilty or not guilty). If the jury finds the defendant "not
guilty" of all charges, the case is dismissed. If the jury finds the
defendant "guilty" of one or more charges, the judge will be required to
sentence the defendant.
Sentencing
If the defendant is convicted by a jury or pleads guilty, the court will
find the defendant guilty and sentence him/her for the crime(s) of
conviction. Sentences are given within a range between the minimum and
maximum penalty prescribed by the statute. Most misdemeanor charges have no
minimum sentences. Even if both sides agree on what the sentence should be,
the judge decides. Jail terms are usually served with work release (Huber)
and may be served on electronic monitoring.
Other penalties may include loss of a drivers license.
Whether sentencing follows a trial or is after a plea of guilty, the
judge will consider not only the crime of conviction but other factors in
the defendant's life. A major factor can be treatment for alcohol or drug
problems or domestic violence counseling before sentencing. If there is a
loss to a crime victim restitution may be ordered.
Collateral (Our-of-Court) Consequences of Convictions
Even if the sentence is a $10 fine on a misdemeanor, there can be enormous other
consequences not imposed by the judge. These can include loss of employment
opportunities, denial of child custody, loss of drivers license, and
permanent loss of firearms rights. In DNR cases there is often loss of
hunting and fishing privileges. For non-citizens deportation or exclusion
from the country can result. If a person is convicted of a felony that
person may never legally possess a firearm. Convicted felons in Wisconsin
cannot vote until their right to do so is restored. Some states will never
let a convicted felon vote. Many jobs are not open to people with felony
convictions, ever.
Appeal
If a person is convicted of a crime in Wisconsin there is a right to
appeal. An appeal does not generally look at guilt or innocence, rather it
looks at the procedures followed in reaching a decision. If an appeal is
won, the result usually is that a new trial is granted. Other remedies are
possible in unusual situations.
The right to appeal, though, is lost if not exercised in a timely manner.
The trial attorney is responsible for starting an appeal with a "Notice of
Intent" but will often not be the one to handle an appeal. That notice of
appeal must be filed within 20 days of the sentencing.
Plea Bargaining
At any time prior to the entry of a jury verdict a defendant may enter a
guilty or no contest plea to one or more charges. If this is a part of a
plea bargain one or more other charges may be dismissed and there may be an
agreement on a sentencing recommendation. Judges are not part of plea
bargaining and are not bound to accept recommendations from anyone.
Warning - Use at your own risk.
This page is not intended to be legal advice or substitute for legal
advice. It is intended to provide general information. Legal advice can only be
given with a full understanding of the actual facts of a case, generally in
a face-to-face consultation. Note that there are exceptions to many of the
statements made here. No one should act or refrain from acting in court
based on anything stated in this web page. My office does not give legal
advice to non-clients over the phone or internet. Further, the
law (and procedures) in criminal cases are changing rapidly. This page
reflects procedures in place in Dane County, Wisconsin, on September 7, 2011.
See also:
Elements of Certain Misdemeanor Crimes - What
They Have to Prove
Misdemeanor Court in Madison, Dane County,
Wisconsin - procedure
Dane County Wisconsin Court Brochures
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Charles
Kyle Kenyon - When Experience Matters
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Attorney at Law
5555 Odana Road, Suite
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Madison, WI 53719-1280
Telephone (608) 308-9645
Since 1979
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