By: Derek Hawkins//June 21, 2017//
WI Supreme Court
Case Name: State of Wisconsin v. Edward J. Zimbal
Case No.: 2017 WI 59
Focus: Court Error – Judge Substitution
Petitioner, Edward J. Zimbal (“Zimbal”), seeks review of an unpublished court of appeals opinion affirming a circuit court order denying his postconviction motion. The court of appeals determined that Zimbal did not timely invoke his right to substitution of a circuit court judge. It reasoned that his request fell outside of the statutory 20 day time limit that begins to run on the date of the court of appeal’s remittitur following a prior successful appeal in this case. Zimbal asserts that the court of appeals erred, contending that his substitution request was timely because: (1) prior to having an attorney appointed he made an oral request for substitution in the circuit court and a written request in the court of appeals; (2) the circuit court instructed him that the filing of a motion for substitution should be deferred until after an attorney was appointed; and (3) his trial counsel formalized the substitution request 17 days after being appointed. We conclude that under the unique circumstances presented here, when a defendant follows a circuit court’s instruction to defer filing a request for substitution of a judge until after counsel is appointed, that strict compliance with the 20 day deadline for filing a request for substitution after remittitur is not warranted. Although Zimbal’s motion for substitution of judge was not timely filed under the statute, it was timely filed in this case because the circuit court in essence extended the deadline until after his trial counsel was appointed. Zimbal complied with the extended deadline when he filed a motion for substitution of judge within 20 days after his trial counsel was appointed. Accordingly, we reverse the decision of the court of appeals and remand to the circuit court to vacate the judgments of conviction and for a new trial.
Reversed and remanded
Concur: Roggensack, Bradley, Kelly, Ziegler
Dissent: