Criminal Procedure — judicial substitution

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Wisconsin Court of Appeals

Criminal

Criminal Procedure — judicial substitution

Where the original judge assigned to the case is reassigned after judicial rotation, the defendant cannot substitute under sec. 971.20.

“While Judge Dallet did in fact substitute for Judge Cimpl on August 1, 2011, she was not a ‘new’ judge under WIS. STAT. § 971.20(5) because she was the judge originally assigned to the case.  While we acknowledge that the statute does not directly contemplate the situation before us—where the original judge assigned later is reassigned back to the case—we think our conclusion comports with the statutory language.  See Kalal, 271 Wis. 2d 633, ¶45.  The statute provides different definitions and separate rules governing the substitution of an ‘original’ versus a ‘new’ judge, see § 971.20(4)‑(5), and if we were to determine that a judge could be both ‘original’ and ‘new,’ our decision would lead to a tortured reading of what is, in our opinion, very straightforward statutory language, see Kalal, 271 Wis. 2d 633, ¶46.”

Affirmed.

Recommended for publication in the official reports.

2012AP1691-CR State v. Bohannon

Dist. I, Milwaukee County, Dallet, Cimple, JJ., Curley, J.

Attorneys: For Appellant: Roth, Susan Marie, Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; Remington, Christine A., Madison