Criminal Court Procedure
Felony or Misdemeanor?
A misdemeanor is defined as a crime that may be punishable by confinement to a county jail for one year or less. A felony is defined as a crime that may be punishable by confinement for more than a year in a state prison.
A defendant's first court appearance is commonly referred to as the initial appearance. The purpose of the initial appearance is to inform the Defendant of the charges and penalties that he or she faces. This will be done both orally by the Judge or Court Commissioner and in writing via the formal charging document called the Criminal Complaint. The Defendant is required to enter a plea of guilty, not-guilty or no contest.
If the Defendant enters a guilty or no contest plea, the case will either be resolved at the initial appearance or set for a sentencing hearing. If the Defendant enters a not guilty plea a return pretrial or status conference date is scheduled, typically roughly a month later. After the initial appearance the Defendant is entitled to copies of the discovery materials possessed by the prosecution. These materials typically include police reports, video, audio and other evidence that the prosecution will use to prosecute the Defendant.
Preliminary Hearing (Felony Only)
At the preliminary hearing the judge or court commissioner hears testimony to decide if the court has probable cause to believe a crime was committed and if so, if the Defendant committed it. If the Judge determines that the State has met their burden, the case continues and is “bound over” for trial. If not, part or all of the case is dismissed.
Arraignment (Felony Only)
The Defendant is again informed of what charges he or she faces at trial. The Defendant pleads guilty, not guilty or no contest. If there is a plea of guilty or no contest, a date is set for the sentencing hearing.
Pretrial or Status Conference
A pretrial or status conference is a court hearing set so that the judge can be informed if the matter will be proceeding to trial. If an agreement has been reached between the prosecution and Defendant a sentencing hearing will be scheduled.
A motion is a verbal or written request that asks the judge to decide a legal question made by the prosecutor or by the defendant before, during or after the trial. If an evidentiary hearing at which both sides are permitted to introduce evidence is required, the Court will schedule the case for a motion hearing upon receipt of a motion from either party.
An official hearing in which either a jury or judge hears the facts and evidence of the case. Through testimony by witnesses and physical evidence and exhibits, it is the prosecution's burden to attempt to prove beyond a reasonable doubt the Defendant's guilt. If the Defendant is found guilty, the judge may sentence the defendant immediately or set the case for a sentencing hearing. If the Defendant is found not guilty, he or she is free to leave.
A court hearing in which the judge decides how to punish and rehabilitate the defendant. A sentencing hearing follows a plea of guilty or no contest plea, or a finding of guilty by a jury or judge.
Potential Outcomes of Prosecution
There are several ways in which a criminal case may resolve. A case may be deferred, resulting in a dismissal of the charge if the person successfully completes a deferred prosecution agreement, commonly called a DPA. A case may result in conviction and subsequent sentencing. A Defendant can be sentenced only if convicted. A Defendant can be convicted only on their plea of guilty, or by a finding of guilt after a trial. The District Attorney's office may dismiss some or all of a criminal case, a Judge may grant a motion to dismiss, or a Defendant may be found not guilty at trial.
Many convictions are the product of negotiations between the prosecutor representing the State and the Defendant's attorney. Negotiations may result in complete or partial agreement between the parties regarding the final outcome of the case. This agreement is then presented to the judge for approval. When all or some of the final outcome is not agreed to by the parties, both sides have the opportunity to present their positions to the judge at an argued sentencing hearing.
The punishment for a particular crime is set by Wisconsin state statute. Within that penalty range the judge determines the sentence. An option the court has in most cases is probation. Probation may be ordered when a sentence is withheld or stayed. When probation is ordered, the judge may also order that the probationer comply with certain conditions that may include jail, treatment, no contact with victims, and others. If the Defendant violates probation and probation is revoked, the Defendant is returned to court for sentencing, or a term of imprisonment previously stayed is then imposed. Other sentencing options available to the court are fines, jail and imprisonment.
After sentencing, Defendants retain the right to appeal all or a potion of their sentence.