Wis. Stat. § 971.01

Current through Acts 2023-2024, ch. 272

Section 971.01 - Filing of the information

(1) The district attorney shall examine all facts and circumstances connected with any preliminary examination touching the commission of any crime if the defendant has been bound over for trial and, subject to s. 970.03(10), shall file an information according to the evidence on such examination subscribing his or her name thereto.

(2) The information shall be filed with the clerk within 30 days after the completion of the preliminary examination or waiver thereof except that the district attorney may move the court wherein the information is to be filed for an order extending the period for filing such information for cause. Notice of such motion shall be given the defendant. Failure to file the information within such time shall entitle the defendant to have the action dismissed without prejudice.

Wis. Stat. § 971.01

1993 a. 486.

The failure to file the information is not a mere matter of form, but is grounds for dismissal under sub. (2). State v. Woehrer, 83 Wis. 2d 696, 266 N.W.2d 366 (1978). The 30-day limit under sub. (2) does not apply to service on the defendant; only filing with the clerk. State v. May, 100 Wis. 2d 9, 301 N.W.2d 458 (Ct. App. 1980). If a challenge is not to the bindover decision, but to a specific charge in the information, the trial court's review is limited to whether the district attorney abused his or her discretion in issuing the charge. State v. Hooper, 101 Wis. 2d 517, 305 N.W.2d 110 (1981). The prosecutor may include charges in the information for which no direct evidence was presented at the preliminary examination, as long as the additional charges are not wholly unrelated to the original charge. State v. Burke, 153 Wis. 2d 445, 451 N.W.2d 739 (1990). See also State v. Richer, 174 Wis. 2d 231, 496 N.W.2d 66 (1993). A preliminary examination is completed for purposes of sub. (2) when the court finishes scrutinizing the evidence and renders a bindover decision. State v. Phillips, 2000 WI App 184, 238 Wis. 2d 279, 617 N.W.2d 522, 99-3197.