State v. Ayodeji J. Aderemi ( 2023 )

2023 WI APP 8
COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
Case No.: 2021AP1445-CR
Complete Title of Case:
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
AYODEJI J. ADEREMI,
DEFENDANT-APPELLANT.
Opinion Filed: January 31, 2023
Submitted on Briefs: April 13, 2022
Oral Argument:
JUDGES: Brash, C.J., Dugan and White, JJ.
Concurred:
Dissented: Dugan, J.
Appellant
ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the
brief of Jeffrey W. Jensen.
Respondent
ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the
brief of Joshua L. Kaul, attorney general, and John A. Blimling,
assistant attorney general.
2023 WI App 8COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
January 31, 2023
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.
Appeal No. 2021AP1445-CR Cir. Ct. No. 2018CF3444
STATE OF WISCONSIN IN COURT OF APPEALS
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
AYODEJI J. ADEREMI,
DEFENDANT-APPELLANT.
APPEAL from a judgment of the circuit court for Milwaukee County:
JOSEPH R. WALL, Judge. Affirmed.
Before Brash, P.J., Dugan and White, JJ.
¶1 WHITE, J. Ayodeji J. Aderemi appeals his judgment of conviction, entered
upon a jury’s verdict, for multiple counts of sexual assault of his minor stepdaughters.
Aderemi argues that the State failed to file the Information of his charges in the Wisconsin
electronic filing system within the statutory deadline; therefore, the trial court erred when
2
No. 2021AP1445-CR
it refused to dismiss the case. He requests an order dismissing the charges. We reject his
argument that the Information was not filed within the statutory deadline; accordingly, we
affirm his conviction.
BACKGROUND
¶2 Our recitation of background facts focuses on the procedural issues raised in
the filing of the Information; the underlying facts of Aderemi’s three-count conviction are
not relevant to that question. According to the criminal complaint, Aderemi was charged
with four counts of child sexual assault on July 24, 2018. That same day, Aderemi made
his initial appearance before a court commissioner and substantial bail was set. On August
1, 2018, Aderemi appeared before a court commissioner and requested to waive the
preliminary hearing. After a colloquy with the commissioner on his understanding of what
he was waiving, the commissioner accepted his decision as “knowing, voluntary, and
intelligent” and bound him over for trial.
¶3 On August 6, 2018, the trial court conducted the arraignment hearing.1 The
record reflects the following conversation:
THE COURT: Good morning, everybody. Mr. Aderemi,
Good morning. It’s here for an arraignment, a new [I]nformation
filed.
[THE STATE:] That’s correct, [y]our Honor. I did file a
signed and dated [I]nformation. I provided a paper copy to
counsel….
THE COURT: Okay. [Aderemi’s trial counsel]?
1
The Honorable Joseph R. Wall conducted Aderemi’s case from arraignment through sentencing.
We refer to Judge Wall as the trial court. His case was originally assigned to the Honorable Jeffrey Conen;
however, the case was reassigned to Judge Wall due to a judicial calendar rotation on August 4, 2018. We
refer to Judge Conen as the circuit court.
2
No. 2021AP1445-CR
[TRIAL COUNSEL]: Your Honor, we acknowledge receipt
of a copy of the [I]nformation, waive its formal reading, and enter
pleas of not guilty.
THE COURT: Okay. How would you like to schedule this?
[TRIAL COUNSEL]: I’d like to set a trial date, Judge[.]
¶4 On October 2, 2018, the court conducted a bail bond hearing. During the
hearing, the following conversation happened:
[TRIAL COURT’S CLERK]: Also I have a note here that
no [I]nformation was ever … filed in CCAP. If you could do that,
that would be greatly appreciated.”
[THE STATE]: Really? Okay. Because I—
THE CLERK: Yeah. I looked and there was an entry that
said it was filed, but there’s no document attached.
[THE STATE]: Okay. I will do that right away. I guess just
for purposes of jurisdiction, if [trial counsel] would—maybe it was
rejected because of some stupid issue with the computer-generated
case number. But for jurisdictional issues, I just ask [trial counsel]
acknowledge there was an Information filed that he received
because I don’t want there to be any issues because I’m outside of
the 30 days.
THE COURT: Right. [Trial counsel], have you received the
Information?
[TRIAL COUNSEL]: Judge, I have a copy without the little
stamp up there. I assume it came—
[THE STATE]: Well, this is all—
[TRIAL COUNSEL]: —at the time of the prelim. Or I have
a vague recollection of [the prosecutor] showing me an electronic
copy and us entering a plea. So I don’t see a problem at all.
THE COURT: Was there an amended Information or just
one?
[THE STATE]: No, your Honor. I believe it was filed on
August 6th. It was just after the preliminary hearing date. This is
just a logistical nightmare for the State because I can’t print out a
copy until it’s filed. I can’t file it until he’s bound over. It becomes
a nightmare. I just want to make sure [trial counsel] has a copy so I
3
No. 2021AP1445-CR
don’t lose jurisdiction. I shouldn’t lose jurisdiction because e-file is
a logistical nightmare.
THE CLERK: The defendant was arraigned on August 6th
and it says that he did receive a copy of the written Information.
[THE STATE]: I will re-file an electronic copy for the file.
Thank you, Madam Clerk, for pointing that out.
¶5 The final pretrial hearing was held on December 7, 2018. Nothing was noted
about the Information during the hearing; however, the record reflects that the “filed” date
stamped on the Information was December 7, 2018.
¶6 On January 7, 2018, the date scheduled for the start of Aderemi’s trial, the
court instead conducted a hearing2 on “the defendant’s concern and essentially [a] motion
… regarding the [I]nformation as to when it was filed and if we are within the time limits.”
Trial counsel explained the issue:
As I was preparing for trial I was reviewing documents on the E-file
system. I saw nothing and the [I]nformation wasn’t there. I had
been given a two page copy of an [I]nformation on August 6th. And
of course on the record what we do 100 times is acknowledge receipt
of the copy, waive reading, and plead not guilty. That is what we
did. I think it’s come to light now that … somehow initiating the
file process …. That process was initiated but not completed in
essence until today. As I read the electronic filing statute, that is
801.18 …. That talks about the requirement of the whole E-filing
system and when a certain stamp is placed and a file document is
authenticated. …. But this [I]nformation apparently was in the
system, waiting for someone else to I guess accept it for filing, and
that just didn’t happen. I don’t know if it matters from what I am
reading whether it is the fault of the State or a glitch in the system.
¶7 The court then commented:
According to my clerk, he looked into the matter, and the district
attorney did, in fact, file it on August 6th of 2018. When I say file,
I mean it loosely. It went into the [circuit court’s] system. In other
words, the clerks for each judge have an electronic system [through]
2
Although the court references a motion on this issue, that motion was not included in the appellate
record.
4
No. 2021AP1445-CR
which things are filed and they get it first. From there, they then
post it to the docket. In this case … it was filed by [another Assistant
District Attorney] and went into [the circuit court’s] clerk’s
electronic system without the clerk then posting it or formally filing
it onto the docket.
The trial court reviewed the docket, noting that the entry for the August 6, 2018
arraignment stated “Filed, original [I]nformation; copies served on defendant.” The court
stated that when one clicked on the entry for Information in the court-facing CCAP system,
the Information document has a file stamp of December 7th, 2018.3 The trial court
explained that “at that point our clerk … was able to retrieve it from [the circuit court’s]
clerk’s electronic system and file it. Obviously, it is very odd that it would be hyperlinked
on August 6th, 2018, but it was.” The prosecutor and trial counsel both acknowledged
handling the paper copy of the Information on August 6, 2018.
¶8 After reviewing Wisconsin law on the issue of delayed or missing
Information documents, the court then considered criminal procedure under WIS. STAT. ch.
971. It concluded that § 971.05(3)4 was satisfied because Aderemi was delivered a signed
paper copy of the Information in court. The court concluded that the Information was filed
3
Wisconsin’s Consolidated Court Automation Programs are commonly known as CCAP. The
term, as used by the trial court in this case, is used to refer to the internal electronic system used by the
courts and clerks, the electronic filing system used by the lawyers and litigants, and the website of court
records accessible to the general public. “The online website reflects information entered by court staff.”
Kirk v. Credit Acceptance Corp., 2013 WI App 32, ¶5 n.1, 346 Wis. 2d 635, 829 N.W.2d 522. “It is not
the official record of a criminal case, as the clerks of court for each county are the officials responsible for
those records.” State v. Bonds, 2006 WI 83, ¶46, 292 Wis. 2d 344, 717 N.W.2d 133. However, we may
take judicial notice of the CCAP records. See WIS. STAT. § 902.01 (2019-20); Kirk, 346 Wis. 2d 635, ¶5
n.1.
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
4
WISCONSIN STAT. § 971.05(3) provides that “[t]he district attorney shall deliver to the defendant
a copy of the [I]nformation in felony cases and in all cases shall read the [I]nformation or complaint to the
defendant unless the defendant waives such reading. Thereupon the court shall ask for the defendant’s
plea.”
5
No. 2021AP1445-CR
on August 6, 2018, as reflected on the docket and a paper copy served on Aderemi, and the
arraignment was completed.
¶9 Trial counsel objected, arguing that unless “a hand signed” copy of the
Information was “handed to your clerk in court on August 6th;” the document was not
filed. He argued that the document was misdirected and was not “filed” until the trial
court’s clerk retrieved and accepted the document on December 7, 2018. The court turned
to the publicly-accessible version of CCAP and reviewed the docket. “[T]here is a separate
entry on August 6th, 2018. It says [I]nformation. So in terms of the public here, the public
would have notice that there was an [I]nformation in the case and that it is filed.” The court
then concluded it would continue the trial as planned the next day.
¶10 The trial took place from January 8 through 11, 2019, ending with a guilty
verdict returned by the jury on three of the four charges and an acquittal of count one of
the Information. On March 14, 2019, the trial court ordered concurrent sentences on the
three counts, with count two and count four being a term of nineteen years of imprisonment
divided into fourteen years of initial confinement and five years of extended supervision
and count three being a term of fifteen years of imprisonment divided into ten years of
initial confinement and five years of extended supervision.
¶11 Aderemi appeals.
DISCUSSION
¶12 Aderemi raises a single argument on appeal, a fundamental and procedural
question of whether the Information in his case was filed within thirty days in compliance
6
No. 2021AP1445-CR
with WIS. STAT. § 971.01(2).5 That statute provides that “[t]he [I]nformation shall be filed
with the clerk within [thirty] days after the completion of the preliminary examination or
waiver thereof …. Failure to file the [I]nformation within such time shall entitle the
defendant to have the action dismissed without prejudice.” Id. Aderemi argues that the
Information was not filed until December 7, 2018, meaning it was filed more than thirty
days after the preliminary hearing on August 1, 2018; therefore, his conviction must be
dismissed without prejudice as a matter of law.
¶13 The State argues that the Information was filed in compliance with the law
and that any irregularities affected only form, not substantive law. The State relies on WIS.
STAT. § 971.26, which provides that “[n]o indictment, [I]nformation, complaint or warrant
shall be invalid, nor shall the trial, judgment or other proceedings be affected by reason of
any defect or imperfection in matters of form which do not prejudice the defendant.” The
State argues that Aderemi suffered no prejudice from the clerk’s delayed acceptance of the
Information in the e-filing system.
¶14 Before the trial court and on appeal, Aderemi relies on State v. Woehrer, 83
Wis. 2d 696, 266 N.W.2d 366 (1978), in which our supreme court dismissed a conviction
without prejudice when “no [I]nformation was ever filed in [the] case” because “[t]he lack
of an [I]nformation in this case is not a matter of form.” Id. at 698-99. Woehrer objected
to the missing Information only the day before trial. Id. at 698. However, the State argues
correctly that Woehrer is easily distinguishable because no Information was ever filed in
that case. Instead, here, it is undisputed that the State gave Aderemi and counsel a copy of
the Information on August 6, 2018. The Woehrer court concluded that the absent
5
The Information is a document composed by the district attorney to “inform” the court of the
alleged crimes committed by the defendant. WIS. STAT. § 971.03. “The [I]nformation informs the
defendant of the exact charges against him in order to allow effective preparation of the plea and defense.”
State v. May, 100 Wis. 2d 9, 11, 301 N.W.2d 458 (Ct. App. 1980). Filing an Information is mandatory.
See WIS. STAT. § 971.01(1).
7
No. 2021AP1445-CR
Information was not a “matter[] of form” under the facts of that case because the failure to
file the Information meant that the defendant was not informed by the district attorney
about the charges brought against him. Id. at 699; see WIS. STAT. § 971.26.
¶15 We are not facing a question over the necessity of filing an Information, but
a question of when and how an Information is filed. To resolve this dispute, we undertake
a two part analysis: first, a question of law—what determines the date and substance of
filing an Information, and second, whether under the facts of this case, the State filed the
Information in compliance with Wisconsin law. As we have often repeated, we
independently review questions of law. See State v. Olson, 2019 WI App 61, ¶10, 389
Wis. 2d 257, 936 N.W.2d 178. We will not disturb the trial court’s findings of facts unless
they are clearly erroneous. See Royster-Clark, Inc. v. Olsen’s Mill, Inc., 2006 WI 46, ¶12,
290 Wis. 2d 264, 714 N.W.2d 530.
¶16 To resolve these issues, we must interpret several statutes: WIS. STAT.
§ 971.01(2), WIS. STAT. § 971.26 and the electronic filing statute, WIS. STAT. § 801.18.6
Statutory interpretation is a question of law we review independently. State v. Hager, 2018
WI 40, ¶18, 381 Wis. 2d 74, 911 N.W.2d 17. “[T]he purpose of statutory interpretation is
to determine what the statute means so that it may be given its full, proper, and intended
effect.” State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d
633, 681 N.W.2d 110.
¶17 We start with what is “filing.” In the traditional, paper-based courts, filing
has been seen as the moment when counsel submitted a document to the clerk, who then
accepted it. When these two steps occur within the same day, we generally have recognized
6
We note that WIS. STAT. § 801.18 was revised between the (2017-18) version in effect at the time
of this case and the version now in effect. The revision to subsection (4) resulted in several paragraphs
being moved within the subsection and two paragraphs were added. See S. CT. ORDER 20-07, 2021 WI 37,
397 Wis. 2d xiii (eff. July 1, 2021). We discuss the (2017-18) version employed by the circuit court.
8
No. 2021AP1445-CR
a presumptive filing date. See Boston Old Colony Ins. Co. v. International Rectifier
Corp., 91 Wis. 2d 813, 822, 284 N.W.2d 93 (1979) (holding that the “physical delivery of
the notice of appeal to and receipt by the clerk of the trial court” constituted filing); Currier
v. DOR, 2006 WI App 12, ¶16, 288 Wis. 2d 693, 709 N.W.2d 520 (“[I]n the context of
appellate procedure, our supreme court has concluded that absent specific statutory
language to the contrary filing is accomplished when the petition is physically handed to
and accepted by the clerk of courts.”).7
¶18 One of the recurring disputes is when the date stamped on the document does
not match the proponent’s alleged submission date. Our supreme court held that “a notice
of appeal may be considered as filed on the date it is actually received by the clerk when
that date is different from the date stamped on the notice only where there is undisputed
and uncontroverted evidence … to establish that date.” Boston Old Colony Ins. Co., 91
Wis. 2d at 824. A litigant can only control the first part of the filing process. See id. at
823-24 (“The delay in stamping the notice of appeal as filed is solely the result of the
clerk’s oversight and the appellants should not be denied their right of appeal based on the
actions of the deputy clerk, which were beyond the appellants’ control.”).
¶19 The advent of electronic filing has provided more specific statutory language
regarding filing, as the disconnect in time between a litigant’s submission and a clerk’s
acceptance is more obvious. Turning to the e-filing statute, WIS. STAT. § 801.18(4) is most
7
We note that we are not equating filing the Information with filing a Notice of Appeal; instead,
we draw on the long history of Wisconsin courts analogizing the processes and practices within filing to a
specific question before it. “There is no Wisconsin case law specifically establishing what constitutes filing
under [WIS. STAT. § 809.10], however, case law in several other areas lend support to the appellants’
position that the notice of appeal is considered to have been filed when physically handed to and accepted
by the clerk.” Boston Old Colony Ins. Co. v. International Rectifier Corp., 91 Wis. 2d 813, 818, 284
N.W.2d 93 (1979). In that case, our supreme court considered mortgages, liens, and petitions for review,
with attention to the distinct steps for when the litigant gives a document to a clerk and when a clerk receives
it. Id. at 819-22. Similarly, there is no case that determines when an Information is filed and we look to
analogical Wisconsin law.
9
No. 2021AP1445-CR
relevant to our analysis, as it contemplates the time and effect of electronic filing. “The
electronic filing system is an agent of the circuit courts for purposes of filing, receipt,
service, and retrieval of electronic documents.” Sec. 801.18(4)(a). The time of filing is
set forth as:
A document is considered filed on a particular day if the submission
is completed by 11:59 p.m. central time, as recorded by the
electronic filing system, so long as it is subsequently accepted by
the clerk of court upon review. Documents filed after 11:59 p.m. are
considered filed the next day the clerk's office is open. The expanded
availability of time to file shall not affect the calculation of time
under other statutes, rules, and court orders.
Sec. 801.18(4)(e).8 Also relevant: If the clerk of court accepts a document for filing, it
shall be considered filed with the court at the date and time of the original submission, as
recorded by the electronic filing system.” Sec. 801.18(4)(c). Further, “[u]pon acceptance,
the electronic filing system shall issue a confirmation to serve as proof of filing.” Id.¶20 From the plain language of these statutes, we understand that the date of
submission to the e-filing system is the “filing” date. As this is in accord with Wisconsin’s
traditional paper filing law, we conclude that the date of submission by the litigant and not
the date of acceptance by the clerk is the presumed “filing” date. There are caveats to this
presumption—first, that the file must later be accepted by the clerk. However, as the State
argues, there is no deadline in the statute for the clerk to accept the file. Further, there are
expectations built into this presumption that the “filing” date stamp on the document is the
submission date no matter when the clerk accepts the document and that a litigant will
8
In 1989, our supreme court adopted “a ‘bright-line’ rule holding that … if any documents or
petitions are delivered or received in the clerk’s office after 5 p.m., they will be treated as having been filed
as of the following day.” St. John’s Home of Milwaukee v. Continental Cas. Co., 150 Wis. 2d 37, 44, 441
N.W.2d 219 (1989). However, that rule was replaced with discretion: our supreme court held “it is within
the clerk of circuit court’s discretion as an elected constitutional officer to accept and file pleadings received
after the end of usual business hours, so long as that discretion is exercised reasonably and is within the
guidelines provided by the legislature.” Northern Air Servs., Inc. v. Link, 2011 WI 75, ¶73, 336 Wis. 2d
1, 804 N.W.2d 458. We note that the e-filing system was introduced after both of those decisions.
10
No. 2021AP1445-CR
receive a confirmation as a proof of filing. Nevertheless, it is still true under e-filing that
“the date stamped on the [document] does not speak conclusively to the date of filing.”
State v. Sorenson, 2000 WI 43, ¶17, 234 Wis. 2d 648, 611 N.W.2d 240.
¶21 With that law in mind, we turn to the facts of this case. Aderemi’s posits that
even if the prosecutor initiated filing of the Information on August 6, 2018, the filing was
not completed until December 7, 2018, because that is the date the clerk file-stamped the
document and placed it into the court file.9 We reject this argument because the statutory
language in WIS. STAT. § 801.18(4)(am) establishes that the submission date is the
presumptive filing date.
¶22 When we apply the law of e-filing to the facts of this case, we can draw two
reasonable conclusions that refute Aderemi’s arguments and do not require an evidentiary
hearing, much less dismissal of his conviction. First, we conclude that the trial court’s
findings of fact were not clearly erroneous. Second, we conclude that Aderemi was not
prejudiced by the delay in the acceptance of the Information in the e-filing system.
¶23 The trial court’s historical findings of fact are not clearly erroneous. We
reject Aderemi’s request for an evidentiary hearing because the record reflects that the trial
court made findings on the record that the Information was filed on August 6, 2018. Under
the clearly erroneous standard, “even though the evidence would permit a contrary finding,
9
Aderemi extends his argument in his reply brief, asserting that the date stamp presumptively
shows that the Information was not submitted until December 7, 2018, because WIS. STAT. § 801.18(4)(c)
provides that when the clerk “accepts a document for filing, it shall be considered filed with the court at the
date and time of the original submission, as recorded by the electronic filing system.” He argues that the
State has failed to provide “uncontroverted” evidence that December 7, 2018 is incorrect. See Boston Old
Colony Ins., Co., 91 Wis. 2d at 824 (holding that the stamped filing date could be overcome by “undisputed
and uncontroverted evidence”). He contends that the only explanation is that the document must have been
submitted on December 7, 2018; therefore, an evidentiary hearing is necessary to resolve this conflict. We
reject this argument for two reasons. First, Aderemi’s position that the State submitted the document on
December 7, 2018, is not supported by the factual record established by the circuit court. Second, we need
not consider arguments raised for the first time in the reply brief. See State v. Reese, 2014 WI App 27, ¶14
n.2, 353 Wis. 2d 266, 844 N.W.2d 396.
11
No. 2021AP1445-CR
findings of fact will be affirmed on appeal as long as the evidence would permit a
reasonable person to make the same finding.” Reusch v. Roob, 2000 WI App 76, ¶8, 234
Wis. 2d 270, 610 N.W.2d 168. “Moreover, we search the record not for evidence opposing
the [trial] court’s decision, but for evidence supporting it.” Royster-Clark, Inc., 290 Wis.
2d 264, ¶12.
¶24 Aderemi argues there is no evidence presented to the court and that the trial
court’s recounting of the clerk’s investigation did not constitute evidence. As the State
argues, there is no requirement that the court conduct a specific hearing and take testimony
to make findings of fact. The record reflects that the trial court found that the State initiated
filing of the Information on August 6, 2018, as documented by the CCAP system. The
public-facing CCAP website showed that the Information was filed. The internal court-
facing CCAP system showed that the Information was submitted; however, the document
was not accessible in the manner expected for an e-filed document.
¶25 The record reflects that there were concerns about irregularities in filing the
Information. The trial court referred to the Information being in the circuit court clerk’s
electronic system. We note that this case never appeared before the circuit court—it was
on the circuit court’s calendar for several days during the judicial calendar rotation. In
October 2018, when the trial court’s clerk raised the issue that the Information document
itself was not showing in the internal system, even though there was an entry for it, the
State reaffirmed that it filed the Information, but called the process a “logistical
nightmare[.]” The prosecutor offered to file a second copy, but there is no record of how
the Information was actually accepted on December 7, 2018. The accepted Information
stated it was electronically signed on August 6, 2018. Although these facts are irregular,
they are not material to the question of when the Information was filed. In e-filing, the
litigant can only control the submission of the document in compliance with the system.
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No. 2021AP1445-CR
We will not hold the litigant responsible for the actions of the clerk accepting the digital
files. See Boston Old Colony Ins. Co., 91 Wis. 2d at 824.
¶26 Aderemi fails to show that the trial court’s factual findings were clearly
erroneous. There is ample support in the record that the State made a sufficiently successful
attempt at submitting the Information, as shown by the paper copies in court and the CCAP
docket entries. We conclude that the trial court’s findings that the Information was filed
on August 6, 2018, are not clearly erroneous; therefore, we do not disturb these findings.
Accordingly, with August 6, 2018, as the date the Information was filed, the terms of WIS.
STAT. § 971.01(2) are satisfied.
¶27 The second basis for our conclusion that the Information was filed in
compliance with Wisconsin law is that Aderemi suffered no prejudice from the
irregularities that occurred. WISCONSIN STAT. § 971.26 “requires a showing of actual
prejudice,” and even if “there may be a material variance it cannot be held to be
automatically prejudicial.” State v. Bagnall, 61 Wis. 2d 297, 305, 212 N.W.2d 122 (1973)
superseded by statute/rule on other grounds as stated in State v. Rabe, 96 Wis. 2d 48, 291
N.W.2d 809 (1980). The transcript from the August 6, 2018 arraignment hearing showed
that the State delivered signed copies to Aderemi and his counsel. The eventual “filing”
date stamped on the document is December 7, 2018; however, the presence of that date is
not automatically prejudicial.
¶28 Our examination of the record shows that this was an unusual case;
nevertheless, we consider the irregularities to be technical defects. The e-filing statute
acknowledges the risk of technical failure in this new technology, and it sets forth a process
by which a litigant may seek appropriate relief. See WIS. STAT. § 801.18(16). We find
paragraph (a), subdivision (1) to aptly fit this situation:
13
No. 2021AP1445-CR
(a) A user whose filing is made untimely as a result of a technical
failure may seek appropriate relief from the court as follows:
1. If the failure is caused by the court electronic filing system, the
court may make a finding of fact that the user attempted to file the
document with the court in a timely manner by submitting it to the
electronic filing system. The court may enter an order permitting
the document to be deemed filed or served on the date and time the
user first attempted to submit the document electronically or may
grant other relief as appropriate.
¶29 The trial court made a finding of fact that the State timely submitted the
Information. Trial counsel acknowledged receipt of the Information in a timely fashion.
Aderemi was not deprived of the purpose of the Information to allow him to adequately
prepare a defense. The substance of the law—Aderemi was informed of the charges he
faced—was satisfied. The form was imperfect. Both WIS. STAT. § 971.26 and WIS. STAT.
§ 801.18(16)10 provide authority for the trial court to find that the irregularities with the
Information filing did not compel dismissal. Under the facts of this case, the failure to
stamp the Information as “filed” on August 6, 2018, does not require dismissal as an
operation of WIS. STAT. § 971.01(2).
CONCLUSION
¶30 We conclude that the e-filing submission date is the presumptive “filing”
date. Here, we conclude that the trial court’s findings that the Information was timely filed
in compliance with the statutes was not clearly erroneous. We conclude that Aderemi
suffered no prejudice from irregularities in the date stamp on the Information.
Accordingly, we affirm Aderemi’s judgment of conviction.
By the Court.—Judgment affirmed.
10
We note that the technical failure subsection further sets forth that “[t]his subsection shall be
liberally applied to avoid prejudice to any person using the electronic filing system in good faith.” WIS.
STAT. § 801.18(16)(c).
14
No. 2021AP1445-CR(D)
¶31 DUGAN, J. (dissenting). Because I conclude that there are insufficient facts
in the record to support the trial court’s finding that the Information in this case was timely
filed with the court on August 6, 2018, pursuant to WIS. STAT. § 971.01 (2017-18)1 and
§ 801.18, I respectfully dissent. I would remand the case with directions that the trial court
hold an evidentiary hearing to develop a sufficient factual basis for the court to determine
whether the Information was in fact filed in this case and, if so, how and when it was filed,
and if there was a technical failure in the electronic filing system or some failure by the
State in attempting to file the Information.
¶32 I begin my analysis with the applicable law. The Majority states that, in this
case, we are faced with a “question of when and how an Information is filed.”2 The
Majority then examines cases that analyze how traditionally paper-based courts determined
when a document was filed, concluding that when counsel submitted a document to the
clerk, who then accepted it, that is when the document is filed.3 I agree with the Majority’s
1
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
2
See Majority, ¶15.
3
I do not take issue with this statement, but I would note that more relevant to the issue in this case
is the language in Boston Old Colony Insurance Co. v. International Rectifier Corp., 91 Wis. 2d 813, 822,
284 N.W.2d 93 (1979), where the court states that “[t]he only question that remains to be considered is
when did the deputy clerk of the Clerk of Courts receive or take control of the notice of appeal.” The court
went on to say that “[w]hile the notice of appeal may have been stamped filed as of December 11th, that
date is not necessarily conclusive as to the date of filing.” Id. (emphasis added). Finally, the court stated
that “[w]e hold that a notice of appeal may be considered as filed on the date it is actually received by the
clerk when that date is different from the date stamped on the notice only where there is undisputed and
uncontroverted evidence, as in this case, to establish that date.” Id. at 824 (emphasis added). Here, we
have an Information stamped as being filed on December 7, 2018, and the trial court finding that it was
filed on August 6, 2018.
No. 2021AP1445-CR(D)
conclusion that really what is relevant to the issue in this case is WIS. STAT. § 801.18, titled
“Electronic filing.” As the Majority points out, the statute has specific language regarding
filing.4
¶33 For the ease of reading, I will highlight portions of WIS. STAT. § 801.18 as
follows:
(4) TIME AND EFFECT OF ELECTRONIC FILING.
(a) The electronic filing system is an agent of the circuit courts for
purposes of filing, receipt, service, and retrieval of electronic
documents.
(b) When a document is submitted by a user to the electronic filing
system, the electronic filing system shall transmit it to the
appropriate clerk of court in the county where the case is filed. The
electronic filing system shall issue a confirmation that submission
to the electronic filing system is complete.
(c) If the clerk of court accepts a document for filing, it shall be
considered filed with the court at the date and time of the original
submission, as recorded by the electronic filing system. Upon
acceptance, the electronic filing system shall issue a confirmation
to serve as proof of filing. When personal service is not required,
the confirmation shall also serve as proof of service on the other
users in the case.
(e) A document is considered filed on a particular day if the
submission is completed by 11:59 p.m. central time, as recorded by
the electronic filing system, so long as it is subsequently accepted
by the clerk of court upon review. Documents filed after 11:59 p.m.
are considered filed the next day the clerk’s office is open. The
expanded availability of time to file shall not affect the calculation
of time under other statutes, rules, and court orders.
….
(6) FILING AND SERVICE OF SUBSEQUENT DOCUMENTS.
(a) The electronic filing system shall generate a notice of activity to
the other users in the case when documents other than initiating
documents are filed. Users shall access filed documents through the
electronic filing system. For documents that do not require personal
4
See Majority, ¶19.
2
No. 2021AP1445-CR(D)
service, the notice of activity is valid and effective service on the
other users and shall have the same effect as traditional service of a
paper document, except as provided in par. (b).
….
(9) OFFICIAL RECORD.
(a) Electronically filed documents have the same force and effect as
documents filed by traditional methods. The electronic version
constitutes the official record. No paper copy of an electronically
filed document shall be sent to the court.
….
(16) TECHNICAL FAILURES.
(a) A user whose filing is made untimely as a result of a technical
failure may seek appropriate relief from the court as follows:
1. If the failure is caused by the court electronic filing system, the
court may make a finding of fact that the user submitted the
document to the court in a timely manner by tendering it to the
electronic filing system. The court may enter an order permitting
the document to be deemed filed or served on the date and time the
user first attempted to transmit the document electronically or may
grant other relief as appropriate.
2. If the failure is not caused by the court electronic filing system,
the court may grant appropriate relief from non-jurisdictional
deadlines upon satisfactory proof of the cause. Users are
responsible for timely filing of electronic documents to the same
extent as filing of paper documents.
(b) A motion for relief due to technical failure shall be made on the
next day the office of the clerk of court is open. The document that
the user attempted to file shall be filed separately and any fees due
shall be paid at that time.
(c) This subsection shall be liberally applied to avoid prejudice to
any person using the electronic filing system in good faith.
3
No. 2021AP1445-CR(D)
I also include the following Comments to WIS. STAT. § 801.18,5 because they may be
consulted for guidance in interpreting and applying the rules on electronic filing:6
Sub. (4)(e) is a change to law and practice. Currently, paper
filings must arrive at the office of the clerk of court before the end
of the regular business day in order to be considered filed on that
day. Northern Air Services v. Link, 2011 WI 75, 336 Wis. 2d 1,
804 N.W.2d 458. However, the most common if not universal
practice among courts that mandate electronic filing is to use the
entire calendar day as the filing period; this is also the practice
recommended to the Wisconsin courts by the National Center for
State Courts. This provision gives a user an extra few hours to file
on the last day a document is due but does not otherwise affect the
calculation of time. If a user submits a document or the court signs
an order on a day when the clerk’s office is closed, it is considered
filed on the next day the clerk’s office is open, except as provided
by other statutes and rules, or by court order.
….
Sub. (9) (k) allows most documents submitted in court as
exhibits to be imaged and made part of the electronic record, rather
than retained in paper format. If the court requires that the original
document be produced for inspection, it will be retained pursuant to
the supreme court rule governing imaging of exhibits.
….
Sub. (16) addresses technical failures of the court’s
electronic filing system and the user’s electronic systems. Court
technical failures may include a failure to process the document
upon receipt or erroneous exclusion of a user from the service list
by the electronic filing system. User technical failures may include
problems with the user’s internet service provider, payment, office
equipment or software, or loss of electrical power.
This section provides guidance for courts dealing with the
rare, but probably inevitable, circumstance of the electronic filing
system not being available or not functioning as intended. Where
S. CT. ORDER 14-03, 2016 WI 29, 368 Wis. 2d xiii (eff. July 1, 2016). Subsequently, S. CT.
5
ORDER 14-03A, 2016 WI 80, 370 Wis. 2d xxxiii (eff. Aug. 17, 2016), amended the phrase, “If a user filed
a document” to “If a user submitted a document.”
6
S. CT. ORDER 14-03 states that “the Comments to the statutes and to the supreme court rules
created pursuant to this order are not adopted, but will be published and may be consulted for guidance in
interpreting and applying the rule.”
4
No. 2021AP1445-CR(D)
the user can demonstrate that the problem was caused by the court’s
electronic filing system, the circuit court may make a finding of fact
that the document is deemed filed or served on the date and time that
filing was attempted. The electronic filing system will generate a
report for the user to document the problem.
Where the failure is caused by the user’s own electronic
systems or by external forces, the court should consider what
consequences would follow a missed deadline for traditional filings
caused by similar forces. Relief may be provided to the extent
provided by s. 801.15 and other applicable statutes, court rules, and
case law. Where the technical failure was not caused by the court
electronic filing system, this section does not provide for relief from
jurisdictional deadlines.
Regardless of the cause, the user shall submit a motion for
relief on the next business day, along with the document to be filed
and any filing fee.
S. CT. ORDER 14-03, 2016 WI 29, 368 Wis. 2d xiii (eff. July 1, 2016) (emphasis added).
¶34 As noted, the issue then is if and when was the Information filed and if it was
not filed, what was the cause. The statute does provide that “[i]f the clerk of court accepts
a document for filing, it shall be considered filed with the court at the date and time of the
original submission, as recorded by the electronic filing system.” WIS. STAT.
§ 801.18(4)(c). The Majority concluded that the date of submission by a litigant and not
the date of acceptance by the clerk is “the presumed ‘filing’ date.”7 Here, the initial
question that must be answered is if or when did the State submit the Information for filing.
I would note that the statute provides that the State, as the user here, needed to demonstrate
that any problem in filing was caused by the electronic filing system. See S. CT. ORDER
14-03.
¶35 As a starting point, I look to the statute for guidance. It provides that the
“[e]lectronically filed documents have the same force and effect as documents filed by
traditional methods. The electronic version constitutes the official record. No paper copy
7
Majority, ¶20. I would note that the statute does not refer to a “presumed” filing date.
5
No. 2021AP1445-CR(D)
of an electronically filed document shall be sent to the court.” WIS. STAT. § 801.18(9)(a).
The only document in this case that is titled “Information” and appears to be electronically
filed is stamped electronically as being filed on December 7, 2018. Thus, pursuant to the
statute, it is the official record of the filing of the Information. However, the trial court
found that the Information was filed on August 6, 2018, despite a lack of critical pieces of
information in the record, including information that should have been generated by the
electronic filing system to support that date.
¶36 The statute also provides further guidance regarding what records are
generated by the electronic filing system when documents are submitted and ultimately
filed. First, when a document is submitted by a user to the electronic filing system, the
electronic filing system “shall” transmit it to the appropriate clerk of the court where the
case is filed. WIS. STAT. § 801.18(4)(b). More importantly for the issue in this case, the
statute provides that “[t]he electronic system shall issue a confirmation that submission to
the electronic filing system is complete.” Id. (emphasis added). Thus, in this case, there
should be a confirmation that the submission of the Information to the electronic filing
system was completed and on what date—neither the trial court nor the State cite to any
confirmation in the record to support a filing date of August 6, 2018. Moreover, the statute
states that the electronic filing system records the date and time of the original submission
of a document—if the document is accepted for filing, “it shall be considered filed with the
court at the date and time of the original submission, as recorded by the electronic filing
system.” Sec. 801.18(4)(c). This information is also missing from the record.
¶37 Turning to the issue of when a document is filed, the statute provides that
“[i]f the clerk of court accepts a document for filing … [u]pon acceptance, the electronic
filing system shall issue a confirmation to serve as proof of filing.” WIS. STAT.
§ 801.18(4)(c) (emphasis added). Thus, in this case, if the Information was accepted by
the clerk for filing, there should be a confirmation that serves as proof of filing—neither
6
No. 2021AP1445-CR(D)
the trial court nor the State cite to any confirmation in the record to support the filing date
in this case.
¶38 Based on the wording of the statute itself, the electronic filing system should
have the answers to the questions about whether the Information was submitted and if or
when it was accepted by the clerk. However, the record does not contain any confirmation
that the submission of the Information to the electronic filing system was completed, nor
any confirmation that the clerk accepted the Information for filing, which by itself would
serve as proof of filing and provide the date of filing. As noted, the only document titled
Information that is contained in the record has a filing date of December 7, 2018, and we
lack the evidence needed to support a filing date other than the one stamped on the
Information.
¶39 Rather than looking at what information the electronic filing system should
provide to support the filing date, the Majority states that the record reflects that “the trial
court found that the State initiated filing of the Information on August 6, 2018, as
documented by the CCAP system.”8 It notes that the “public-facing” CCAP website
showed that the Information was filed and the internal “court-facing” CCAP system
showed that the Information “was submitted.” The Majority then states that they can draw
two reasonable conclusions that refute Aderemi’s arguments. First, the Majority concludes
that the trial court’s findings of fact were not clearly erroneous, and second, that Aderemi
was not prejudiced by the delay in the acceptance of the Information in the e-filing system.9
¶40 I disagree with the Majority’s conclusions. First, “[t]he court erroneously
exercises its discretion when it applies the wrong legal standard or makes a decision not
8
See Majority, ¶24.
9
See Majority, ¶¶22, 27.
7
No. 2021AP1445-CR(D)
reasonably supported by the facts of record.” State v. Avery, 2013 WI 13, ¶23, 345 Wis.
2d 407, 826 N.W.2d 60. Here, the trial court applied the wrong legal standard because it
did not determine whether the Information was submitted and filed pursuant to WIS. STAT.
§ 801.18(4). Further, as discussed below, it relied on and considered the CCAP entries as
the official record. However, as acknowledged by the Majority, “‘[t]he online [CCAP]
website reflects Information entered by court staff.’ Kirk v. Credit Acceptance Corp., 2013
WI App 32, ¶5 n.1, 346 Wis. 2d 635, 829 N.W.2d 522. ‘It is not the official record of a
criminal case, as the clerks of court for each county are the officials responsible for those
records.’ State v. Bonds, 2006 WI 83, ¶46, 292 Wis. 2d 344, 717 N.W.2d 133.”10 Thus,
the trial court’s reliance on CCAP entries in making its finding that the Information was
filed on August 6, 2018, constitutes an erroneous exercise of its discretion.
¶41 The record is unclear what standard the trial court was applying in finding
that the Information was filed on August 6, 2018. The Majority even acknowledges that
the record reflects that there were concerns about the irregularities in filing the Information.
The record of the arraignment on August 6, 2018, reflects that assistant district attorney
(ADA) Erin Karshen told the court that she filed a signed and dated Information and that
she provided a paper copy to trial counsel.11 Trial counsel stated that “we acknowledge
receipt of a copy of the [I]nformation.” Counsel then entered pleas of not guilty, and the
matter was set for final pretrial and a jury trial. The record does not reflect how ADA
Karshen filed the Information. This will be discussed further below.
¶42 On October 2, 2018, the parties appeared before the trial court for a bail
review. After the court addressed the bail issue, the clerk stated “[a]lso I have a note here
10
See Majority, ¶7 n.3.
11
I note that the Information in the electronic filing system is electronically signed by assistant
district attorney Matthew J. Torbenson—not ADA Karshen.
8
No. 2021AP1445-CR(D)
that no Information was ever, like, filed in CCAP. If you could do that, that would be
greatly appreciated.” The clerk continued, “[y]eah. I looked and there was an entry that
said it was filed, but there’s no document attached.” Thus, the record reflects that the clerk
said that although there was an entry in CCAP that an Information was filed, “there’s no
document attached.” The clerk did not explain how the entry in CCAP was made, nor who
made the entry. By his comments, it appears that the clerk was expecting that the
Information would be “attached” in some way, but the record does not explain this in any
way.
¶43 ADA Karshen then interjected saying “maybe it was rejected because of
some stupid issue with the computer-generated case number.” Thus, ADA Karshen
thought that the Information may not have been properly submitted to the electronic filing
system. The trial court then asked trial counsel if he received the Information. Counsel
responded that he had a copy without “the little stamp up there. I assume it came … at the
time of the [preliminary hearing]. Or I have a vague recollection of [ADA] Karshen
showing me an electronic copy and us entering a plea.”
¶44 ADA Karshen then stated that “I believe it was filed on August 6th…. This
is just a logistical nightmare for the State because I can’t print out a copy until it’s filed. I
can’t file it until he’s bound over. It becomes a nightmare…. I will re-file an electronic
copy for the file.” The trial court then interjected, “We have a docket entry, but we don’t
have the document?” The clerk responded, “Correct.” Trial counsel then stated that he
had a copy of the information, the arraignment was held, and Aderemi entered a not guilty
plea. The court asked if Aderemi had a chance to look at the Information, and counsel said
yes. The trial court then asked, “Is that good enough, [ADA] Karshen?” to which she
responded yes. The court made no further ruling.
9
No. 2021AP1445-CR(D)
¶45 Thus, after the hearing on October 2, 2018, the record only shows that there
was no Information in the record, no record of how ADA Karshen attempted to file it, and
if she attempted to electronically file it, whether it was rejected, and if it was not rejected,
why there was no confirmation of the submission. As noted above, the statute provides
that the State, as the user here, needed to demonstrate that any problem was caused by the
electronic filing system.
¶46 The issue of whether the Information was filed was again raised on the first
day of trial on January 7, 2019. The trial court noted that trial counsel had raised a motion
regarding when the Information was filed and whether it was within the statutory time
limits for filing the Information.12 Counsel stated that as he was preparing for trial he
reviewed documents in the electronic filing system, and the Information was not there. He
commented that he did not know if it was the fault of the State or a glitch in the system.
¶47 The trial court then stated that it had its clerk look into the matter and that
the ADA did in fact file it on August 6, 2018. He added “[w]hen I say file, I mean it
loosely.” It stated that the Information “was filed by ADA Torbenson and went into Judge
Conen’s clerk’s electronic system without the clerk then posting it or formally filing it onto
the docket.”13 I note that it is not clear if the court was telling the parties what the clerk
told the court about where the clerk found the document. It then stated that it was looking
at the “docket” entry that said its clerk made the entry. The court then read the entry which
said the arraignment was held and “[f]iled, original information; copies served on
[Aderemi].”
12
Pursuant to WIS. STAT. § 971.01(2), “[t]he information shall be filed with the clerk within 30
days after the completion of the preliminary examination or waiver thereof …. Failure to file the
information within such time shall entitle the defendant to have the action dismissed without prejudice.”
13
Aderemi’s case was initially assigned to Judge Jeffrey Conen, but was subsequently assigned to
Judge Joseph R. Wall as part of the circuit court’s judicial rotation.
10
No. 2021AP1445-CR(D)
¶48 Based on the trial court’s statements, its clerk made the entries on the
docket—it was not entered by the electronic filing system that the Information was
submitted, there was no confirmation by the system that the submission was completed,
and no confirmation that the clerk accepted the Information and confirmed the filing. The
clerk’s entries in the docket are more consistent with the description in the Majority’s
decision regarding how Informations were filed in paper-based courts—the Information
was handed to the clerk who accepted it for filing and a copy was served on the defendant.
By contrast, ADA Karshen stated in earlier hearings that she filed the Information, not
ADA Torbenson, and seemed to say that she did it electronically. However, even then she
stated, “[M]aybe [the Information] was rejected because of some stupid issue with the
computer-generated case number.”
¶49 Even the trial court noted that it did not understand the entries on the docket
sheet. It stated “[w]hen you go on the docket and you click on the hyperlink[ 14] on April
6th[15] which says information, what comes up is an information that has a file stamp of
December 7, 2018.” It then explained that the reason it is stamped December 7, 2018, is
because “at that point our clerk, Stefan, was able to retrieve it from Judge Conen’s clerk’s
electronic system and file it. Obviously, it is very odd that it would be hyperlinked on
August 6th, 2018, but it was.” The trial court was correct in concluding it was odd because
as the Majority correctly states, the statute provides “[i]f the clerk of court accepts a
document for filing, it shall be considered filled with the court at the date and time of the
original submission, as recorded by the electronic filing system.” WIS. STAT.
§ 801.18(4)(c). Thus, the electronic filing system records the date and time of the original
submission of a document. Neither the State nor the trial court explain why if the clerk
14
It is not clear in the record, but it appears that the trial court is referring to the CCAP system.
15
This would seem to be an error because the reference to the Information on CCAP is August 6.
11
No. 2021AP1445-CR(D)
accepted the Information for filing on December 7, 2018, the Information would not have
been file stamped August 6, 2018, pursuant to the statute, if the Information in fact was
submitted for filing on August 6, 2018.
¶50 Therefore, I conclude that the record does not show how or when the
Information was filed. According to the trial court, the clerk made the entries on the docket
that the Information was filed on August 6, 2018, at the arraignment and copies were given
to Aderemi at the hearing. The clerk did not testify what the entries on the docket meant
regarding how the Information was actually filed. The clerk also did not testify or even
explain how he actually retrieved the “Information” from Judge Conen’s clerk’s electronic
system and what he did with it when he retrieved it. More significantly is the fact that no
one with the technical knowledge of how the electronic filing system operates testified to
explain how: (1) if the Information was properly submitted by the State to the electronic
filing system, the system did not issue a confirmation that submission to the electronic
filing system was complete; (2) how if the clerk accepted the Information, the electronic
filing system did not issue a confirmation as proof of service; (3) how the Information in
the electronic filing system could be file stamped on December 7, 2018, if it was submitted
on August 6, 2018; and (4) what was the effect of the clerk retrieving the Information from
Judge Conen’s clerk’s electronic system on December 7, 2018.
¶51 Based on the discussion above, I conclude that the record does not support
the trial court’s finding that the Information in this case was filed on August 6, 2018, and
therefore, I would reverse the trial court’s finding that the Information was filed on August
6, 2018.
¶52 The Majority next states that “the second basis for our conclusion that the
Information was filed in compliance with Wisconsin law is that Aderemi suffered no
12
No. 2021AP1445-CR(D)
prejudice from the irregularities that occurred.”16 It then states that “WISCONSIN STAT.
§ 971.26, ‘requires a showing of actual prejudice….’”17 That statute provides: “No
indictment, information, complaint or warrant shall be invalid, nor shall the trial, judgment
or other proceedings be affected by reason of any defect or imperfection in matters of form
which do not prejudice the defendant.” Sec. 971.26 (emphasis added). The Majority
further states, “Our examination of the record shows that this was an unusual case;
nevertheless, we consider the irregularities to be technical defects.”18 However, the
Majority does not identify what, if any, technical failure occurred nor whether such failure
was caused by the court’s electronic filing system or the user’s—here the State—electronic
system.
¶53 I disagree with the Majority’s conclusion that WIS. STAT. § 971.26 applies to
the facts in this case. Rather, I conclude that WIS. STAT. § 971.01(2) governs the decision
in this case. That statute provides:
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…. Failure to file the information within
such time shall entitle the defendant to have the action dismissed
without prejudice.
Id. (emphasis added). The statute clearly states and mandates that if the information is not
timely filed a defendant is entitled to have the action dismissed. It does not require that a
defendant prove that he or she was prejudiced by the untimely filing—it only requires that
the information not be timely filed.
16
See Majority, ¶27.
17
Id.
18
See id., ¶28.
13
No. 2021AP1445-CR(D)
¶54 Our supreme court addressed this very issue in State v. Woehrer, 83 Wis. 2d
696, 698-99, 266 N.W.2d 366 (1978). In Woehrer, the State argued that Woehrer
submitted to the jurisdiction of the court when he pled not guilty and that the case was
governed by WIS. STAT. § 971.26. Woehrer, 83 Wis. 2d at 699. Our supreme court
concluded that WIS. STAT. § 971.01(2) governed the case. Woehrer, 83 Wis. 2d at 699. It
stated that “[t]he lack of an information in this case is not a matter of form.” Id. The court
further stated, “Here the [S]tate failed to file an information as clearly required by the
statutory mandate. The statute could not be more clear. It says, ‘Failure to file the
information within such time shall entitle the defendant to have the action dismissed
without prejudice.’”19 Id. (citation omitted). The court went on to say that “[i]n the case
of a felony the legislature has required that an information shall be filed by the district
attorney….” Id. Thus, I would conclude that WIS. STAT. § 971.01(2) governs the decision
in this case.
¶55 In discussing its conclusion regarding prejudice, the Majority also states that
“[t]he e-filing statute acknowledges the risk of technical failure in this new technology,
and it sets forth a process by which a litigant may seek appropriate relief.”20 It cites to
WIS. STAT. § 801.18(16)(a)1. for the proposition that a “user whose filing is made untimely
as a result of a technical failure may seek relief from the court…” The statute further
provides that “[i]f the failure is caused by the court electronic filing system, the court may
make a finding of fact that the user attempted to file the document with the court in a timely
manner by submitting it to the electronic filing system.” Sec. 801.18(16)(a)1. The statute
19
The court did note that there was no claim that Woehrer waived regarding the filing of the
information and that Woehrer did object to the failure to file the information. State v. Woehrer, 83 Wis. 2d
696, 698-99, 266 N.W.2d 366 (1978). On February 14, 1975, Woehrer waived a preliminary examination
and pled not guilty. Id. at 698. On February 3, 1976, Woehrer moved to dismiss because no information
had been filed, and the trial court denied the motion. Id. On February 4, 1976, a jury found him guilty,
and Woehrer again objected to the lack of an information in his motions after verdict. Id.20
See Majority, ¶28.
14
No. 2021AP1445-CR(D)
provides a remedy that “[t]he court may enter an order permitting the document to be
deemed filed or served on the date and time the user first attempted to submit the document
electronically or may grant other relief as appropriate.” Id.¶56 Although the statute does provide relief where technical failures occur, the
record does not establish that any technical error occurred and what or who caused the
technical error. First, as noted earlier the record does not show how or when the
information was filed and who filed it, if it was filed. More importantly, as noted above,
the statute provides that the State, as the user here, needed to demonstrate that any problem
was caused by the electronic filing system. Further, the comment to WIS. STAT.
§ 801.18(16)(a)1. provides that
This section provides guidance for courts dealing with the rare, but
probably inevitable, circumstance of the electronic filing system not
being available or not functioning as intended. Where the user can
demonstrate that the problem was caused by the court’s electronic
filing system, the circuit court may make a finding of fact that the
document is deemed filed or served on the date and time that filing
was attempted. The electronic filing system will generate a report
for the user to document the problem.
S. CT. ORDER 14-03 (emphasis added). I would note that although the comment states that
the electronic filing system will generate a report for the user to document the problem, the
record does not contain such a report. Additionally, the record does not show, and the State
does not argue, that any technical failure of the electronic filing system occurred. Thus, I
would conclude that this section of the statute would not apply.
Conclusion
¶57 For the above reasons, I would reverse the finding of the trial court that the
Information was filed on August 6, 2018, and remand the matter to the trial court for an
15
No. 2021AP1445-CR(D)
evidentiary hearing to determine whether the Information in the electronic filing system
was properly filed and, if so, when it was filed.21 Thus, I respectfully dissent.
21
If the trial court would find that the information was not timely filed, it would then have to
consider whether WIS. STAT. § 801.18(16), Technical Failures, applies under the circumstance, as well as
consider the Comment to that subsection that states, “Where the technical failure was not caused by the
court electronic filing system, this section does not provide for relief from jurisdictional deadlines.” S. CT.
ORDER 14-03. It would also have to consider the effect of WIS. STAT. § 971.01(2), which provides that
“[t]he information shall be filed with the clerk within 30 days after the completion of the preliminary
examination or waiver thereof …. Failure to file the information within such time shall entitle the defendant
to have the action dismissed without prejudice.” (Emphasis added).
16