411 Wis.2d 123
Wis.2024Background
- Antonio S. Davis was charged with misdemeanor battery and disorderly conduct in Dane County, Wisconsin.
- At Davis's initial appearance, before being appointed counsel, a court commissioner held both an initial appearance and an arraignment, entering a not guilty plea on his behalf.
- Davis was informed of his assigned judge at this appearance but did not receive appointed counsel from the State Public Defender's Office until 65 days later.
- Six days after appointment of counsel, Davis requested substitution of his assigned judge, which was denied as untimely by the circuit court.
- Davis sought a supervisory writ, arguing his request should be considered timely due to alleged "government-created obstacles," but the court of appeals denied the writ.
- The Supreme Court of Wisconsin reviewed the matter to address whether the circuit court had a plain duty to treat the substitution request as timely, and the proper appellate procedure for untimely substitution requests.
Issues
| Issue | Davis's Argument | State's Argument | Held |
|---|---|---|---|
| Timeliness of Substitution Request | Davis argued the SPD's delay in appointment created a "government-created obstacle" making his untimely request justifiable, and that equitable tolling should apply. | The circuit court had no plain duty to accept an untimely request; Davis's identified obstacles shifted over time and equitable tolling was not raised below. | Davis's request was filed after statutory/local deadlines; government-created obstacle and equitable tolling did not apply; circuit court had no plain duty to treat it as timely. |
| Forfeiture of Issues | Even if forfeited, court should reach the issues to clarify the law/procedure. | Davis forfeited these arguments by changing them on appeal or not raising below. | Court exercised discretion to consider the issues but did not find for Davis. |
| Supervisory Writ as Procedural Vehicle | Supervisory writ appropriate for review of such issues. | Supervisory writ is drastic, should require a clear, plain duty. | Supervisory writ not preferred for post-arraignment substitution disputes; regular appeals or interlocutory review preferred. |
| Equitable Tolling | Should extend the deadline due to circumstances outside defendant’s control. | No precedent for applying equitable tolling to these circumstances; is a discretionary, not mandatory doctrine. | No plain duty to invoke equitable tolling for substitution requests; doctrine is discretionary. |
Key Cases Cited
- Baldwin v. State, 62 Wis. 2d 521 (WI 1974) (established that a substitution request may be timely if the defendant did not know the assigned judge before arraignment)
- State ex rel. Tessmer v. Cir. Ct. for Racine Cnty., 123 Wis. 2d 439 (WI Ct. App. 1985) (untimely substitution request may be excused if defendant lacked notice of assigned judge)
- State ex rel. Tinti v. Cir. Ct. for Waukesha Cnty., 159 Wis. 2d 783 (WI Ct. App. 1990) (clarified circumstances for timely judicial substitution post-arraignment)
- State v. Kalal, 271 Wis. 2d 633 (WI 2004) (defined plain duty and non-discretionary nature required for supervisory writs)