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Criminal Procedure – Judicial substitution – harmless error

By: WISCONSIN LAW JOURNAL STAFF//January 22, 2015//

Criminal Procedure – Judicial substitution – harmless error

By: WISCONSIN LAW JOURNAL STAFF//January 22, 2015//

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Wisconsin Supreme Court

Criminal

Criminal Procedure – Judicial substitution – harmless error

armless error analysis does not apply when the circuit court erred by presiding over the defendant’s trial, sentencing, and postconviction motions after the defendant filed a timely and proper Wis. Stat. § 971.20 request for substitution of judge, the request was granted, and a new judge was appointed.

“Thus, by seeking to impose a harmless error analysis in the present case, the State attempts to insert a condition for substitution that the legislature has deliberately refused to impose. The court should not add an element to the substitution statute that the legislature did not enact.”

In sum, application of a harmless error analysis in the present case would undercut Wis. Stat. § 971.20 by nullifying the defendant’s statutory right to request and obtain substitution without any showing of prejudice. The text of Wis. Stat. § 971.20 controls the disposition of the instant case. The statutory violation in the instant case is simply not amenable to harmless error review, and the case law does not permit us to apply a harmless error analysis. Thus, we decline to do so.”

Affirmed.

2013AP298-CR State v. Harrison

Abrahamson, C.J.

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