State v. T.D.V., 2024AP2057-FT, 1/22/25, District II (ineligible for publication); case activity
The State fails to adequately respond to T.D.V.’s argument that his substitution request was improperly denied, so COA remands the matter for a new trial.
During an initial hearing in this case, “Tyrone” requested to: (1) fire his lawyer and (2) substitute on the assigned judge. (¶4). The court commissioner granted the request to discharge counsel and, later in the hearing, ordered Tyrone removed from the courtroom due to his conduct. (Id.). Recognizing Tyrone’s assertion of the statutory substitution right, it then directed recently-discharged counsel to fill out the substitution form on Tyrone’s behalf. (¶5). Given Tyrone’s absence, the commissioner directed the attorney to leave the signature line blank. (¶5). The commissioner then accepted the request as timely and properly filed. (Id.). However, the assigned trial judge then denied the request because the form was not signed. (Id.). Although Tyrone, who was incarcerated, manifested his desire to sign the paper at a subsequent hearing, “no further discussion or action appears to have occurred with respect to Tyrone’s request.” (¶6).
Following an adverse jury verdict, Tyrone appeals and claims that the substitution request was improperly denied. (¶10). He argues that although the judge may have been partially correct to insist on a signature for the written substitution form, § 802.05 should be construed as giving a person who neglects to sign a paper the opportunity to cure the defect before that paper is stricken. (Id.).
Instead of responding to the substantive argument, the State cites § 801.58(2), the civil substitution statute, and a published decision of COA for the proposition that, in order to preserve the claim for appeal, Tyrone needed to first appeal the denial of his substitution request to the chief judge. (¶11).
COA’s response is to the point: “The State’s argument is not well-taken.” (¶12). COA’s binding decision in Julie A.B. stands for the proposition that the substitution provision in Chapter 48 functions differently than the general civil rule as it does not contain the requirement that a person first seek review from the chief judge. (Id.). The State has essentially cited the wrong statute and, because it does not provide a substantive argument as to why Tyrone’s interpretation of the correct statute is erroneous, COA reverses and remands for a new trial. (¶¶13-14).
