State v. Edward J. Zimbal, 2017 WI 59

Defendant Edward Zimbal prevailed on appeal of his Bangert motion; the court of appeals remitted the cases to the circuit court for new proceedings.
Remittitur was filed in October 2013; Zimbal orally asked the circuit judge to "recuse" at a status hearing and separately wrote the court of appeals asking that the judge be removed.
The circuit court told Zimbal (who was then unrepresented) that the substitution/recusal issue would be addressed after trial counsel was appointed and denied the oral request "at this time." The court of appeals likewise advised Zimbal to consult trial counsel.
Trial counsel was appointed November 1, 2013; counsel filed a written motion for substitution of judge on November 18, 2013 (17 days after appointment), but the circuit court denied it as untimely under Wis. Stat. § 971.20(7).
Zimbal proceeded to trial, was convicted and sentenced; postconviction relief was denied, the court of appeals affirmed, and the Wisconsin Supreme Court granted review.
The Wisconsin Supreme Court reversed the court of appeals, holding that under the unique facts the circuit court's instruction effectively extended/tolled the 20‑day deadline and Zimbal's counsel's motion was timely; the convictions were vacated and new trials ordered.

Issue	Plaintiff's Argument (Zimbal)	Defendant's Argument (State)	Held
Whether Zimbal timely invoked statutory right to substitution under Wis. Stat. § 971.20(7) after remittitur	Zimbal: he sought substitution orally in circuit court and wrote the court of appeals within 20 days, the circuit court told him to wait for counsel, and counsel filed within 20 days of appointment	State: statute requires strict filing within 20 days after remittitur; oral requests and letters to court of appeals are not filings with the circuit court and the deadline was not extended	Court: Although statutory deadline was missed, under the unique facts the circuit court's instruction tolled/extended the deadline until counsel was appointed; counsel's motion was therefore timely and substitution required; convictions vacated
Whether an oral request or a letter to the court of appeals satisfies the statute's filing requirement	Zimbal: his communications conveyed his desire to remove the judge and should be liberally construed	State: statute and form require a written filing in the circuit court; court of appeals lacked jurisdiction after remittitur	Court: Oral request and letter to court of appeals did not satisfy the statute's filing requirement; but the court treated them as evidence of intent and relied on the circuit court's instruction to justify tolling

State v. Harrison, 360 Wis. 2d 246, 858 N.W.2d 372 (superseding discussion on substitution and construction of § 971.20) (clarifies that substitution may be liberally construed when intent is clear)
Baldwin v. State, 62 Wis. 2d 521, 215 N.W.2d 541 (1974) (created exception to strict filing deadline where calendaring system prevented timely exercise of substitution right)
State ex rel. Tessmer v. Circuit Court Branch III, 123 Wis. 2d 439, 367 N.W.2d 235 (Ct. App. 1985) (applies Baldwin rationale where procedures prevented knowledge of assigned judge)
State ex rel. Tinti v. Circuit Court for Waukesha County, 159 Wis. 2d 783, 464 N.W.2d 853 (Ct. App. 1990) (extends filing‑deadline relaxation when intake system prevents notice of assigned judge)
State v. Nichols, 247 Wis. 2d 1013, 635 N.W.2d 292 (2001) (discusses equitable tolling where compliance depends on another's act)
State v. Austin, 171 Wis. 2d 251, 490 N.W.2d 780 (Ct. App. 1992) (counsels strict adherence to substitution statute to avoid disruption)
State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986) (underlying plea‑withdrawal doctrine giving rise to remand in this case)