Clark v. State
| Citation | 92 Wis.2d 617,286 N.W.2d 344 |
| Decision Date | 04 December 1979 |
| Docket Number | No. 77-138-CR,77-138-CR |
| Parties | Robert Earl CLARK, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. |
| Court | United States State Supreme Court of Wisconsin |
Howard B. Eisenberg, State Public Defender, and Jack E. Schairer, Asst. State Public Defender, for plaintiff in error.
Bronson C. La Follette, Atty. Gen., and Maryann S. Calef, Asst. Atty. Gen., for defendant in error.
Robert Earl Clark, the defendant, was convicted of attempted kidnapping. He seeks reversal of his conviction and reversal of the order denying his motion for a new trial on three grounds: the circuit judge failed to honor Clark's request for substitution of judge; the evidence is insufficient to sustain the verdict; and the circuit court erred in the jury instructions. Clark also seeks reversal of the order denying him credit against his term for time spent at the Winnebago State Hospital pursuant to a court-ordered sex deviate examination. We affirm the judgment and the orders of the court.
Clark asserts that his request for a substitution of judge was not honored and that the circuit court therefore had no authority to hear his case. The State counters by arguing that the request for substitution was not timely made.
Section 971.20, Stats.1975, sets forth the procedure to follow when filing a request for a substitution for the judge assigned to the case. The defendant must personally sign a written request which he files with the clerk "before making any motion or before arraignment."
The sequence of events in the case at bar was as follows: A criminal complaint was filed on June 21, 1976, charging Robert Earl Clark with attempted kidnapping in violation of secs. 940.31 1 and 939.32, 2 Stats. His initial appearance and the preliminary hearing were in county court of Kenosha county before Judge Burton A. Scott. Clark was bound over to circuit court for trial; no branch of circuit court was specified in the bindover order.
On August 6, 1976, an information alleging attempted kidnapping was filed in the circuit court for Kenosha county. On the same date, Clark filed a motion to quash the information; the caption of the motion does not specify the branch of the Kenosha county circuit court or the judge thereof.
On August 11, 1976, Clark filed a request for substitution of judges in the form prescribed by sec. 971.20(5), Stats.: 3
"Pursuant to the applicable section of the Wisconsin statutes, the defendant above named requests a substitution for the Honorable Harold M. Bode, as judge in the above entitled action."
The record does not show when Clark or his attorney first learned that Judge Bode had been assigned to his case. 4 The information (dated August 3 and filed on August 6) is a printed form completed by typewriter except for two inked insertions: roman numeral "II" was inserted in the caption of the information which states "Circuit Court, Branch ______"; 5 and the case number was inserted in the appropriate blank on the form to the right of the names of the parties. We do not know when either of these inked insertions was made or whether Clark or his attorney was notified when this information became available. The motion to quash (filed on August 6) contains the case number but not the circuit court branch number.
The record is silent as to what happened to the request for substitution. There is nothing in the record showing whether Judge Bode even considered the request or whether he granted or denied it. At no time subsequent to the filing of the request for substitution does the record show that Clark or his attorney communicated with the clerk of court 6 or with Judge Bode about his request for substitution or that Clark objected to Judge Bode's presiding at any proceeding. What is clear in the record is that Judge Bode presided at a hearing on the motion to quash on September 22, 1976; at the arraignment on September 27, 1976, at which Clark pleaded not guilty and requested a jury trial; at a hearing on November 29, 1976, on Clark's motions for discovery and for bill of particulars; at the trial before a jury beginning December 7, 1976; and at the hearing on March 7, 1977, on Clark's motion for a new trial.
Clark, on appeal, asserts that because his request for substitution was not honored, pursuant to sec. 971.20, Stats., Judge Bode was "without authority" to conduct proceedings in his case and that his conviction is therefore a nullity.
The State argues that because sec. 971.20, Stats., requires the request to be "made before making any motion or before arraignment," Clark's request for substitution was not timely made and Judge Bode had authority to act. The parties agree that Clark's request for substitution was filed after his motion to quash the information and before the arraignment.
Clark maintains that the word "or" in sec. 971.20(1) connotes the alternative and that sec. 971.20(1) should be read to permit the defendant an option to file the request either before a motion or before arraignment. He argues that the arraignment should be the cut-off time for the request. Thus a request made after motion but before arraignment would be timely. Clark offers no reason justifying the adoption of this strained reading of the statute.
Neither the language of the statute nor the minutes of the Committee of the Judicial Council which participated in the drafting of sec. 971.20, as part of the extensive revision of the Criminal Code, supports this interpretation of the statutory language:
(Drafting file in Legislative Reference Bureau for Ch. 255, Laws of 1969, Minutes of Meeting September 13, 1968.)
The drafting file does not show why the language suggested at the committee meeting was not used in the statute.
One goal of the statute is that the request be filed and acted upon before substantive or procedural issues of the case are raised or considered. Cf. Bahr v. Galonski, 80 Wis.2d 72, 87, 257 N.W.2d 869 (1977). To achieve this goal the statute should be interpreted to require the defendant to file his request prior to the time he filed motions relating to the case.
Whether we look at the very words of the statute or at the draftsmen's notes or at the purpose of the statute, we conclude that sec. 971.20, Stats., does not mean what Clark says it means. We conclude that sec. 971.20 requires the defendant to file his request for substitution before the filing of a motion or before arraignment, whichever event occurs first.
The question to which we turn next is whether Clark's motion to quash which was filed before the request for substitution was filed should be viewed as a motion within sec. 971.20 which renders the subsequent filing of the request untimely. On several occasions, recognizing the vagaries of practice and procedure, we have stated that sec. 971.20 must be applied in a reasonable manner to obtain its objective and to give effect to the predominant intent of the legislature expressed in sec. 971.20, I. e., to "afford a substitution of a new judge assigned to the trial of that case . . . (so that) a person's right to a fair trial shall be preserved." Baldwin v. State, 62 Wis.2d 521, 529, 530, 532, 215 N.W.2d 541, 545-546 (1974). See also Meverden v. State, 258 Wis. 628, 634, 46 N.W.2d 836 (1951). Our prior cases have attempted to apply the statutory time limit in sec. 971.20 in a way that will inhibit a defendant's use of the request to disrupt orderly calendaring or to delay the scheduled trial 7 and at the same time, in a way that will give a defendant a reasonable period of time to request a substitution after he or she learns which judge is assigned to the case. 8 We have viewed the key to the statutory right of substitution as the defendant's ability to exercise his right of substitution intelligently.
As noted previously, in the case at bar, the record is unclear whether Clark knew the name of the assigned judge when he filed the motion to quash. Nor is the date of the assignment of the case to Judge Bode and the date when Clark learned of the assignment of record. The motion to quash was filed on August 6th. Apparently Judge Bode was assigned to the case sometime between August 2 (the bindover) and August 11, the date Clark filed the request for substitution. Clark's request for substitution was filed within nine days of the bindover, within five days after his motion to...
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