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.

Motions

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.