                                                                2017 WI 59

                  SUPREME COURT                OF    WISCONSIN
CASE NO.:               2015AP1292-CR and 2015AP1293-CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Respondent,
                             v.
                        Edward J. Zimbal,
                                  Defendant-Appellant-Petitioner.
                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                           Reported at 371 Wis. 2d 564, 884 N.W.2d 535
                                       (2016 – Unpublished)

OPINION FILED:          June 14, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          December 2, 2016

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Brown
   JUDGE:               William M. Atkinson

JUSTICES:
   CONCURRED:           ROGGENSACK, C.J. concurs, joined by R.G.
                        BRADLEY, J. and KELLY, J.(opinion filed).
                        ZIEGLER, J. concurs (opinion filed).
  DISSENTED:
  NOT PARTICIPATING:


ATTORNEYS:


       For the defendant-appellant-petitioner, there were briefs
filed by and oral argument by Jeremy A. Newman, assistant state
public       defender,     with   whom    on   the    briefs   was   Tristan   S.
Breedlove, assistant state public defender.


       For the plaintiff-respondent, there was a brief filed by
and    an    oral      argument   by   Nancy   A.    Noet,   assistant   attorney
general, with whom on the brief was Brad D. Schimel, attorney
general.
    An amicus curiae brief was filed on behalf of Wisconsin
State Public Defender by Joseph N. Ehmann, regional attorney
manager, and Kelli S. Thompson, state public defender.




                                2
                                                                          2017 WI 59
                                                                  NOTICE
                                                    This opinion is subject to further
                                                    editing and modification.   The final
                                                    version will appear in the bound
                                                    volume of the official reports.
Nos.       2015AP1292-CR & 2015AP1293-CR
(L.C. Nos.    2010CF706 & 2011CF231)

STATE OF WISCONSIN                              :             IN SUPREME COURT

State of Wisconsin,

             Plaintiff-Respondent,                                      FILED
       v.                                                          Jun 14, 2017
Edward J. Zimbal,                                                     Diane M. Fremgen
                                                                   Clerk of Supreme Court
             Defendant-Appellant-Petitioner.




       REVIEW of an opinion of the Court of Appeals.                   Reversed and

cause remanded.



       ¶1    ANN WALSH BRADLEY, J.           Petitioner, Edward J. Zimbal

("Zimbal"),      seeks   review    of   an   unpublished       court     of   appeals
opinion      affirming      a     circuit     court      order       denying        his

postconviction motion.1           The court of appeals determined that

Zimbal did not timely invoke his right to substitution of a

circuit court judge.         It reasoned that his request fell outside


       1
       State v. Zimbal, Nos. 2015AP1292-CR & 2015AP1293-CR,
unpublished slip op., (Wis. Ct. App. July 6, 2016) (affirming
order entered by the circuit court for Brown County, William M.
Atkinson, J., presiding).
                                                           Nos.    2015AP1292-CR & 2015AP1293-CR



of the statutory 20 day time limit that begins to run on the

date       of   the       court    of       appeal's      remittitur       following          a    prior

successful appeal in this case.

       ¶2       Zimbal       asserts          that       the    court     of        appeals       erred,

contending           that    his    substitution           request       was    timely        because:

(1)    prior         to    having       an    attorney         appointed       he    made     an    oral

request for substitution in the circuit court and a written

request         in    the     court          of    appeals;       (2)    the        circuit        court

instructed him that the filing of a motion for substitution

should be deferred until after an attorney was appointed; and

(3) his trial counsel formalized the substitution request 17

days after being appointed.

       ¶3       We        conclude          that   under        the     unique        circumstances

presented        here,       when       a    defendant         follows     a    circuit       court's

instruction to defer filing a request for substitution of a

judge until after counsel is appointed, that strict compliance

with the 20 day deadline for filing a request for substitution

after remittitur is not warranted.2                            Although Zimbal's motion for




       2
       There is nothing wrong with this strict compliance
substitution statute, Wis. Stat. § 971.20(7), and we should not
rewrite it by adding such indefinite concepts as excusable
delay, good faith and prejudice. Establishing such a rule would
tend to unravel what is meant to be a narrowly circumscribed
statute. See, e.g., State v. Austin, 171 Wis. 2d 251, 257, 490
N.W.2d 780 (Ct. App. 1992).     Nevertheless, the concurrence of
C.J. Roggensack would do just that.

                                                                                        (continued)
                                                     2
                                           Nos.   2015AP1292-CR & 2015AP1293-CR



substitution of judge was not timely filed under the statute, it

was   timely   filed   in   this   case   because   the   circuit   court   in

essence extended the deadline until after his trial counsel was

appointed.     Zimbal complied with the extended deadline when he

filed a motion for substitution of judge within 20 days after

     The concurrence would create a new——albeit amorphous——
category for the application of equitable tolling in this
context.    Explaining that "[e]quitable tolling focuses on
whether there was an excusable delay by the plaintiff," it
reasons that "[t]he doctrine may be applied when a claimant has
made a good faith error and there is an absence of prejudice to
others if it is applied."           Chief Justice Roggensack's
concurrence, ¶12 (citation and quotation omitted).

     Under the approach of the concurrence, courts would have to
determine when the delay is excusable. What constitutes a good
faith showing and will any level of prejudice suffice?     Is the
new rule to be applied prospectively or retroactively?      Given
that the rule of the concurrence pertains only to unrepresented
defendants, are there equal protection considerations?        See
concurrence, ¶19.    What happens when a represented defendant
also can show excusable delay, good faith and no prejudice?

     In the past this court and the court of appeals have
established categorical exceptions to the rule of strict
adherence to Wis. Stat. § 971.20. See, e.g., Baldwin v. State,
62 Wis. 2d 521, 530, 215 N.W.2d 541 (1974) (an exception when a
county's calendaring procedure prevents a defendant from timely
knowing the assigned judge); State ex rel. Tessmer v. Cir. Ct.
Branch III, In & For Racine Cty., 123 Wis. 2d 439, 443, 367
N.W.2d 235 (Ct. App. 1985) (an exception when the traffic and
misdemeanor court's procedures prevented a defendant from timely
knowing the assigned judge); State ex rel. Tinti v. Cir. Ct. for
Waukesha Cty., Branch 2, 159 Wis. 2d 783, 788, 464 N.W.2d 853
(Ct. App. 1990) (an exception when an intake system does not
provide adequate notice of the assigned judge).

     None of these     cases has expanded the exception to invoke
the application of      the doctrine of equitable tolling and we
likewise decline to     do so here. Instead, we limit our decision
to the unique facts    of this case.


                                      3
                                                 Nos.      2015AP1292-CR & 2015AP1293-CR



his trial counsel was appointed.                     Accordingly, we reverse the

decision of the court of appeals and remand to the circuit court

to vacate the judgments of conviction and for a new trial.

                                           I

    ¶4     The underlying facts in this case are not in dispute.

Zimbal's petition for review arises from two criminal cases.                               In

the first case, Zimbal was charged with stalking, disorderly

conduct,   and    sending    an    obscene           computer      message.        He     was

charged with stalking and two counts of felony bail jumping in

the second case.

    ¶5     Zimbal    entered      a   no       contest      plea    to    one    count     of

stalking in the former case and one count of bail jumping in the

latter, with the remaining counts dismissed or dismissed and

read-in at sentencing.            The circuit court sentenced Zimbal to

consecutive      maximum    sentences,         totaling       nine       years    and     six

months with four years and six months of initial confinement and

five years of extended supervision.

    ¶6     After    sentencing,       Zimbal         filed    a    Bangert       motion    to
withdraw his pleas and vacate his conviction, alleging that his

pleas were not knowingly, intelligently and voluntarily entered.3

The circuit court denied the motion but the court of appeals

reversed, determining that the "court did not utilize any of the

methods    identified       in     Bangert           for     establishing         Zimbal's



    3
       See State       v.    Bangert,          131     Wis. 2d 246,        275-76,        389
N.W.2d 12 (1986).


                                           4
                                                       Nos.   2015AP1292-CR & 2015AP1293-CR



understanding        of    the    nature   of      the        offense."4       It   remanded

Zimbal's     cases        with    directions       to     vacate        the   judgments    of

conviction and grant Zimbal's motion to withdraw his pleas.5

      ¶7     Although the merits of Zimbal's Bangert motion are not

at   issue   here,        its    resolution       on    appeal     is    relevant    to   the

procedural posture of this case.                        At issue is whether Zimbal

made a timely request for substitution of judge pursuant to Wis.

Stat. § 971.20(7) (2013-14)6 after his cases were remitted to the

circuit court following the successful appeal of the denial of

his Bangert motion.

      ¶8     A request for substitution of judge following appeal

may be filed within 20 days after the filing of the remittitur

by the appellate court:

      If an appellate court           orders a new trial or sentencing
      proceeding, a request           under this section may be filed
      within 20 days after            the filing of the remittitur by
      the appellate court,             whether or not a request for
      substitution was made           prior to the time the appeal was
      taken.

Wis. Stat. § 971.20(7).
      ¶9     After Zimbal's appeal on the Bangert motion concluded,

his cases were remitted to the circuit court on October 8, 2013.

On October 7, 2013, the circuit court continued a status hearing


      4
       State v. Zimbal, Nos. 2012AP2234-CR & 2012AP2235-CR,
unpublished slip op., ¶9 (Wis. Ct. App. Sept. 4, 2013).
      5
          Id., ¶1.
      6
       All subsequent references to the Wisconsin Statues are to
the 2013-14 version unless otherwise indicated.


                                              5
                                         Nos.   2015AP1292-CR & 2015AP1293-CR



that had been held over from October 4, 2013.               Zimbal appeared

at the status conference by telephone from prison.                 Attorney

Jeff Cano, the Regional Attorney Manager for the State Public

Defender ("SPD") in Green Bay, was present in the courtroom.              He

advised the court that when the government returned Zimbal to

the county, the SPD "would discuss with him the appointment of

an attorney."

      ¶10   At the October 7, 2013, status hearing, Zimbal made a

request for recusal of the circuit court judge, which was denied

"at this time."     The court allowed that it would give Zimbal's

attorney an opportunity to do research on the recusal issue and

address the request at the status conference:

      ZIMBAL:   I'm also asking that you recuse yourself
      because there is no way you can be impartial and/or
      [un]bias[ed].

      THE COURT:     Since you probably haven't done any
      research, I'll let your attorney do research on that
      issue and you can address that at the status
      conference. I'll deny your request at this time.

      ZIMBAL: I spoke to Attorney Hirsch this morning, and
      she said absolutely you can't do that. The Judge must
      recuse himself.

      THE COURT:   All right. He can provide his authority
      for that at the status conference, and he can send it
      by letter beforehand, by the way, if you want it
      addressed beforehand.
      ¶11   That same day, Zimbal also wrote a letter to the court

of   appeals   requesting   assistance    because     the    circuit   court

denied his oral request for recusal.            It provided in relevant

part:



                                   6
                                             Nos.    2015AP1292-CR & 2015AP1293-CR


    I asked Attorney Hirsch if I could ask Judge Atkinson
    to recuse himself from my case based on him being
    biased and [not] impartial. She said absolutely. If
    you ask as the defendant he has to recuse himself
    especially after a[n] appeal from his Court.

                                     . . .

    There is no way Judge Atkinson can be impartial and I
    know that since I asked him to recuse himself from
    this case. He has to. Can you please look into this
    for me as I feel you need to be aware of this.

                                     . . .

    Yes I want him off my case and feel this is critical
    to me!
    ¶12   The court of appeals replied to Zimbal's letter on

October 17, 2013, copying Judge Atkinson and the Clerk of the

Circuit   Court.         It    denominated     his     request    as      one     for

"substitution or recusal" of a judge and explained that it no

longer had jurisdiction over his cases because the cases had

been remitted to the circuit court.             The reply recommended that

he consult with trial counsel about how to proceed:

    The court has asked me to respond to your October 7,
    2013 letter regarding substitution or recusal of Judge
    Atkinson.   The records in these cases ha[ve] been
    remitted to the circuit court and this court has no
    jurisdiction after remittitur.    Therefore, the court
    will take no action on your letter.    We suggest that
    you consult with your trial counsel about how to
    proceed.
    ¶13   When     the    State     failed    to     produce     Zimbal     for     a

scheduled status hearing on October 15, and counsel had not yet

been appointed, the circuit court rescheduled the status hearing

to October 29, 2013.          Zimbal appeared at that status conference
but without counsel.          The circuit court acknowledged that Zimbal


                                       7
                                                     Nos.    2015AP1292-CR & 2015AP1293-CR



was unrepresented and adjourned the hearing until an attorney

could be appointed to represent him.

      ¶14    On    November       1,     2013,       the     State      Public        Defender

appointed       Zimbal   new     trial      counsel     who       subsequently        filed    a

request     for   substitution         of     judge     seventeen        days    later,       on

November 18, 2013.         It asserted:

      Zimbal made a written request for substitution before
      the statutory deadline, however he was not represented
      by counsel at the time and mistakenly sent the request
      to the Court of Appeals.      Undersigned counsel was
      appointed by the State Public Defender on November 1,
      2013.
                            . . .

      Zimbal requests that the Court deem this motion
      timely, because counsel was only appointed after the
      statutory deadline had elapsed.
The circuit court denied Zimbal's November 18, 2013, request for

substitution, concluding that the "[d]efendant did not comply

with Wis. Stat[]. § 971.20(7)."

      ¶15    After Zimbal's request for substitution was denied, he

went to trial on the original charges.                            A jury found Zimbal
guilty of three counts in the first case, and three counts in

the second case.          The circuit court again sentenced Zimbal to

consecutive maximum sentences, this time totaling nineteen years

and   six    months,      with         nine    and     a     half      years    of     initial

confinement and ten years of extended supervision.

      ¶16    Zimbal filed a postconviction motion requesting a new

trial in the interest of justice or, in the alternative, a new

trial     due     to     ineffective          assistance          of    counsel.             His
postconviction         motion    did     not       include    a     claim      that    any    of

                                               8
                                               Nos.    2015AP1292-CR & 2015AP1293-CR



Zimbal's attorneys had been ineffective for failing to file a

timely request for substitution of judge.                     The circuit court

denied Zimbal's postconviction motion.

     ¶17      On appeal, Zimbal raised only one issue:                whether the

circuit court erred in denying his request for substitution of

judge.     In    an   unpublished   per       curium    opinion,   the    court   of

appeals affirmed the circuit court order denying Zimbal's motion

for substitution of judge.              It concluded that because "Zimbal

failed   to     comply    with   Wis.    Stat.     § 971.20(7),      he   did     not

properly invoke his right to substitution of a circuit court

judge and his motion was properly denied."7

                                         II

     ¶18      At issue is whether Zimbal made a timely request for

substitution of judge.           We are called upon to interpret and

apply relevant statutes.          The interpretation and application of

a statute present questions of law that we decide independently

of the decisions rendered by the circuit court and the court of

appeals.      State v. Harrison, 2015 WI 5, ¶37, 360 Wis. 2d 246,
858 N.W.2d 372.

     ¶19      Statutory    interpretation        begins    with    examining      the

language of the statute.          State ex rel. Kalal v. Cir. Ct. for

Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110.

The purpose of statutory interpretation is to determine what the



     7
       State v. Zimbal, Nos. 2015AP1292-CR & 2015AP1293-CR,
unpublished slip op., ¶1 (Wis. Ct. App. July 6, 2016).


                                         9
                                                       Nos.    2015AP1292-CR & 2015AP1293-CR



statute means so that it may be given its "full, proper, and

intended effect."           Id., ¶44.

       ¶20     We give statutory language "its common, ordinary, and

accepted       meaning,     except        that    technical          or    specially-defined

words     or      phrases        are     given        their     technical            or   special

definitional           meaning."          Id.,     ¶45.         Statutory           language      is

interpreted in the context in which it is used, in relation to

the language of surrounding or closely-related statutes."                                       Id.,

¶46.

                                              III

       ¶21     In       determining          whether          Zimbal's             request       for

substitution of judge was timely, we must consider both the

plain meaning of the substitution statute and whether, under the

circumstances,           Zimbal     was      provided         with    an       opportunity        to

exercise the statutory right to substitution.                                  Zimbal asserts

that his request for substitution of judge was timely because:

(1)    prior      to    having     an    attorney       appointed         he       made   an    oral

request for substitution in the circuit court and a written
request      in     the    court        of   appeals;         (2)     the      circuit         court

instructed him that the filing of a motion for substitution

should be deferred until after an attorney was appointed; and

(3) his trial counsel formalized the substitution request 17

days after being appointed.

       ¶22     Pursuant     to     Wis.      Stat.     § 971.20(7),            a    request      for

substitution of judge following appeal must be filed within 20

days after remittitur:


                                                 10
                                                  Nos.    2015AP1292-CR & 2015AP1293-CR


      If an appellate court            orders a new trial or sentencing
      proceeding, a request            under this section may be filed
      within 20 days after             the filing of the remittitur by
      the appellate court,              whether or not a request for
      substitution was made            prior to the time the appeal was
      taken.
Zimbal argues first that he complied with the deadline set forth

in the statute.           He asserts that his request for substitution of

judge was timely because he requested substitution orally in the

circuit court and in writing in the court of appeals before the

20 day deadline had passed.
      ¶23    We pause to briefly address Zimbal's use of the word

"recuse," rather than "substitute" in his oral request to the

circuit court and subsequent written request to the court of

appeals.     The State asserts that Zimbal did not comply with Wis.

Stat. § 971.20(7) because both his oral request and his letter

to   the    court    of    appeals     requested      Judge      Atkinson's    recusal,

rather than a substitution of judge.

      ¶24    A motion for recusal is distinct from a request for

substitution        of    judge.       Pursuant    to     Wis.    Stat.    § 971.20,   a

criminal defendant has the right to substitute a judge without

providing a reason for the requested substitution.                            Harrison,

360 Wis. 2d 246, ¶39.              Once a request for substitution is filed

"in proper form and within the proper time, the judge whose

substitution has been requested has no authority to act further

in the action except to conduct the initial appearance, accept

pleas and set bail."               Wis. Stat. § 971.20(9).              In contrast, a

motion      for     recusal     requires      a   defendant        to     overcome   the
presumption       that     a   judge   has    acted      fairly,    impartially,     and


                                             11
                                                   Nos.    2015AP1292-CR & 2015AP1293-CR



without bias.         See State v. Goodson, 2009 WI App 107, ¶8, 320

Wis. 2d 166, 771 N.W.2d 385.

       ¶25   Although    a    motion       for    recusal         is    distinct        from     a

request for substitution of judge, this court has previously

allowed a request for substitution when the defendant used the

word "recuse" in his filings.                    See Harrison, 360 Wis. 2d 246,

¶26.     In Harrison, the defendant used phrases like "change of

judge"    and     "recusal"    in        some    of    his      filings,     rather           than

"substitution."        Id.     Nevertheless, this court determined that

"the defendant's goal was clear:                 He did not want [the judge] on

the instant case or the other criminal case in which he was

being charged."       Id.     The same is true here.

       ¶26   Zimbal used the word "recuse," but it was clear that

he did not want the circuit court judge to preside over his

criminal cases.        Before the circuit court, Zimbal orally stated

that "[t]he Judge must recuse himself."                         His written request to

the court of appeals provided that "I want [the judge] off my

case and feel this is critical to me!"                           The court of appeals
responded to Zimbal's letter by characterizing it as a letter

"regarding substitution or recusal of Judge Atkinson."

       ¶27   As    Harrison     indicates,            Zimbal's         request        could     be

liberally       construed     as     a     request        for     substitution.                See

Harrison,       360   Wis. 2d 246,         ¶26.           Accordingly,           we     analyze

Zimbal's oral request in the circuit court and written request

to the court of appeals as a request for substitution of judge.

       ¶28   We begin our statutory analysis with the language of
the    statute.       Kalal    271       Wis. 2d 633,           ¶45.      Subsection           (7)
                                            12
                                                 Nos.    2015AP1292-CR & 2015AP1293-CR



provides    that   a   request      for    substitution        of   judge   must   be

"filed."    Wis. Stat. § 971.20(7).              In this context, the common,

ordinary and accepted meaning of the word filed is "to enter (a

legal   document)      on    public   official          record."      Am.   Heritage

Dictionary of the English Language 680 (3rd ed. 1992).                           With

this definition in mind, we look next to other sections of the

statute to inform our analysis.

    ¶29     Statutory language is interpreted in the context in

which it is used, in relation to the language of surrounding or

closely-related statutes.           Kalal 271 Wis. 2d 633, ¶46.              Several

other   subsections     of    the   same       statute    explicitly     state   that

requests for substitution have to be "written."                     See Wis. Stat.

§§ 971.20(3)(b), (4) and (5).             Likewise, § 971.20(10) sets forth

the form for a substitution of judge request, which provides

that a request be signed and dated by the defendant or his

attorney:

    A request for substitution of a judge may be made in
    the following form:

    STATE OF WISCONSIN
    CIRCUIT COURT
    ... County

    State of Wisconsin
    vs.
    ...(Defendant)

    Pursuant to s. 971.20 the defendant (or defendants)
    request (s) a substitution for the Hon. .... as judge
    in the above entitled action.

    Dated ..., ... (year).

    ....(Signature of defendant or defendant's attorney)

                                          13
                                               Nos.    2015AP1292-CR & 2015AP1293-CR



This proffered statutory form further supports our determination

that a request for substitution must take the form of a written

document, rather than an oral request.

       ¶30     We    consider   next   whether   Zimbal's       October      7,    2013,

letter    to    the    court    of   appeals   complied     with   the     statutory

requirements of Wis. Stat. § 971.20.                  The plain language of the

statute requires that a request for substitution of judge be

filed with the circuit court.             See Wis. Stat. §§ 971.20(3), (4),

(5),   (8)     and    (10).     Additionally,     as     the    court   of    appeals

informed Zimbal, it did not have jurisdiction over his case

after the remittitur was filed with the circuit court.                               See

State ex rel. Fuentes v. Wisconsin Ct. App., District IV, 225

Wis. 2d 446, 452-53, 593 N.W.2d 48 (1999).

       ¶31     Accordingly,     neither    Zimbal's      oral    request      in    the

circuit court nor his written request to the court of appeals

complied with the statutory requirements because a request for

substitution of judge pursuant to Wis. Stat. § 971.20(7) must be

filed in writing with the circuit court.
       ¶32     Zimbal argues that even if his oral request in the

circuit court and written request to the court of appeals are

statutorily insufficient, his attorney's written request filed

with the circuit court on November, 18, 2013, should be deemed

timely.        He contends that because the circuit court told him

that the issue of substitution would be deferred until counsel

was appointed, he complied with the circuit court's instructions

for filing a motion for substitution.


                                          14
                                          Nos.   2015AP1292-CR & 2015AP1293-CR



    ¶33   After Zimbal made his oral request for recusal, the

circuit court told Zimbal that "[s]ince you probably haven't

done any research, I'll let your attorney do research on that

issue and you can address that at the status conference.                 I'll

deny your request at this time."          Zimbal responded that he had

spoken with his appellate counsel and she said "the Judge must

recuse himself."   Again, the circuit court told Zimbal that his

attorney could "provide his authority for that at the status

conference, and he can send it by letter beforehand, by the way

if you want it addressed beforehand."             Likewise, the court of

appeals responded to Zimbal's letter by telling him to "consult

with your trial counsel about how to proceed."

    ¶34   Trial    counsel's    November         18,   2013,    filing    for

substitution of judge requested that it be deemed timely because

he was not appointed until after the statutory deadline had run.

It provided in relevant part:

    Zimbal made a written request for substitution before
    the statutory deadline, however he was not represented
    by counsel at the time and mistakenly sent the request
    to the Court of Appeals.      Undersigned counsel was
    appointed by the State Public Defender on November 1,
    2013.

                               . . .

    Zimbal requests that the Court deem this motion
    timely, because counsel was only appointed after the
    statutory deadline had elapsed.
    ¶35   The   State   responds   that    Zimbal      could   have   filed   a

written motion for substitution because he had counsel prior to
the appointment of his public defender on November 1, 2013.


                                   15
                                                  Nos.    2015AP1292-CR & 2015AP1293-CR



According to the State, Zimbal was represented by Attorney Cano

(the Regional Attorney Manager for the State Public Defender in

Green Bay) who appeared in his administrative capacity at two

status hearings on October 4, 2013, and October 7, 2013.                              The

State also emphasizes Zimbal indicated that before the hearing

he spoke with Attorney Hirsch, his state appointed appellate

counsel.       Additionally, the State asserts Attorney Hirsch should

have filed the request for substitution of judge on Zimbal's

behalf.

       ¶36    The     record    indicates      that   after        the   remittitur   was

filed,       Zimbal    was     not    represented        by     trial    counsel   until

November      1,    2013.       Attorney       Hirsch     was      Zimbal's    appointed

appellate counsel and did not appear on his behalf after the

appeal of his Bangert motion was concluded.                          Although Attorney

Cano       appeared    in    the     circuit     court        in   his   administrative

capacity, he did not act as Zimbal's counsel.8                           It was Zimbal,




       8
       The Office of the State Public Defender ("SPD") is a
statutory creation and its attorneys and employees actions are
governed by statute and administrative code rules.    See Wis.
Stat. Ch. 977; Wis. Admin. Code Chs. PD 1-8.

     According to the amicus brief filed by the SPD, it has four
separate divisions:   an Administrative Services Division, Trial
Division, Appellate Division and an Assigned Counsel Division.
It advises that "[r]esponsibility for determining client
eligibility and appointing counsel in SPD staff and private bar
cases is delegated to attorney managers and representatives in
36 Trial Division offices and two Appellate Division offices."

                                                                              (continued)
                                            16
                                                Nos.   2015AP1292-CR & 2015AP1293-CR



not Attorney Cano, who made the arguments before the circuit

court at the October 7, 2013, status hearing.

      ¶37    Additionally, the circuit court treated Zimbal as a

pro   se    litigant    until   the   newly     appointed      counsel,     Attorney

Hanes, appeared at the November 1, 2013, hearing.                          It denied

Zimbal's     oral   request     for   a   new    judge    on   October     7,   2013,

stating "I'll let your attorney do research on that issue and

you can address that at the status conference.                     I'll deny your

request at this time."            Zimbal was also unrepresented at an

October 29, 2013, hearing during which the circuit court stated

that "I think we've been able to determine there is no one

appointed for you at this time."

      ¶38    In   the   alternative,      the    State    argues    that    even   if

Zimbal was unrepresented, he could have filed a written request

for substitution despite the circuit court's instructions that

he wait until counsel was appointed.               It relies on the court of

appeals' reasoning that the circuit court's instructions did not

make it "impossible" for Zimbal to comply with the statute:

      While Judge Atkinson's comments coupled with delays in
      the appointment of counsel for Zimbal may have lead
      Zimbal to conclude the court would not grant his
      request within twenty days of remittitur, nothing

     Additionally, the SPD's amicus brief explains that within a
single prosecution, appellate representation is considered a
separate case from trial representation. Wis. Admin. Code § PD
2.11(1).   Separate fees are imposed for trial and appellate
representation.     Wis. Admin. Code §§ PD 6.01 and 6.02.
Likewise, certification and hiring requirements for trial and
appellate cases are separate and distinct.     Wis. Admin. Code
§ PD 1.04.


                                          17
                                                             Nos.       2015AP1292-CR & 2015AP1293-CR


       prevented Zimbal from complying with the requirement
       for filing a written request within twenty days of
       remittitur.   Compliance with the statute was not
       impossible.9
       ¶39    According            to     the        State,        the     substitution         statute

demands      strict       adherence             to     its     terms        because      Wis.     Stat.

§ 971.20(2) requires that the right to substitution "shall be

exercised as provided in this section."                                    It further relies on

the    court       of     appeals          decision           in        State     v.   Austin,        171

Wis. 2d 251, 257, 490 N.W.2d 780 (Ct. App. 1992), which reasoned

that       "deviation             from     the        requirements               [of   Wis.       Stat.

§ 971.20(11)]           would       allow       for    substantial              problems    that      are

prevented by strict adherence to the statute."

       ¶40    Here       we       make    an     exception          to      the   rule     of   strict

adherence      because              the     circuit           court         directed       that       the

substitution issue would again be addressed after trial counsel

was appointed and                 Zimbal followed that directive.                      This limited

exception      comports            with    our       prior     case        law    allowing      for    an

exception      when           a     government-created                    obstacle       prevents       a

defendant from complying with the statutory deadline.

       ¶41    In        the         Baldwin-Tessmer-Tinti                    arraignment          cases

involving Wis. Stat. § 971.20(4), this court and the court of

appeals allowed an exception to the rule of strict adherence to

the    statutory        filing          deadlines          when     a    criminal      defendant       is

arraigned before he receives notice of which judge will hear his


       9
       State v. Zimbal, Nos. 2015AP1292-CR & 2015AP1293-CR,
unpublished slip op., ¶8 (Wis. Ct. App. July 6, 2016).


                                                      18
                                                       Nos.   2015AP1292-CR & 2015AP1293-CR



case.       See     Baldwin        v.    State,      62    Wis. 2d 521,         530-532,    215

N.W.2d 541 (1974); See also State ex rel. Tessmer v. Cir. Ct.

Branch III, In & For Racine Cty., 123 Wis. 2d 439, 443, 367

N.W.2d 235 (Ct. App. 1985); State ex rel. Tinti v. Cir. Ct. for

Waukesha Cty., Branch 2, 159 Wis. 2d 783, 790, 464 N.W.2d 853

(Ct. App. 1990).

      ¶42     Pursuant        to    Wis.       Stat.      § 971.20(4),          "[a]    written

request for the substitution of a different judge for the judge

originally assigned to the trial of the action may be filed with

the   clerk    before       making       any    motions       to   the    trial    court   and

before arraignment."               In Baldwin, the defendant argued that when

the circuit judge originally assigned to the case voluntarily

disqualified        himself        after       arraignment,        Wis.    Stat.       § 970.20

should      have     been     construed           to      permit    the        defendant   the

opportunity to file a request for substitution of judge after

the case was reassigned.                 62 Wis. 2d at 529.              The Baldwin court

agreed.

      ¶43     The court observed that the requirement that a request
for substitution be made prior to arraignment "works well in the

majority of cases" because the defendant is normally arraigned

before the judge who will hear the case.                                 Id.     However, it

determined        that   in    cases       where       the    judge      who     handles   the

arraignment is not the judge who will preside over trial, strict

compliance with Wis. Stat. § 971.20 is not mandated.                                    Id. at

529-30.

      ¶44     The    reason        for   the    defendant's        inability       to    comply
with the statutory deadline in Baldwin was a calendaring system
                                                19
                                                    Nos.      2015AP1292-CR & 2015AP1293-CR



utilized in Milwaukee County in which the judge assigned to

handle the arraignment was not necessarily the same judge who

would    preside     at     trial.          Id.    at    530.         However,       Baldwin's

rationale has been extended to other cases where a defendant has

been    unable     to     make     a   request      for       substitution       due    to   a

government-created obstacle.

       ¶45   In Tessmer, the court of appeals explained that the

"Baldwin rational is controlling" when a defendant does not know

what judge will be assigned to try the case until after a plea

is entered .         123 Wis. 2d at 443.                The Tessmer court explained

that because a traffic citation does not inform a defendant of

the judge assigned to trial, a defendant cannot exercise the

statutory        right    to     substitution        prior      to     an    initial    court

appearance.         Id.         Likewise,    in     Tinti,      the    court     of    appeals

determined        that     because     an    intake          system    did     not    provide

adequate notice in advance of arraignment of the assigned trial

judge, an exception to the filing deadline should be made to

allow for an opportunity to exercise the statutory right to
substitution.        159 Wis. 2d at 790.

       ¶46   This        case    is    analogous        to     the     arraignment       cases

because      a     government-created              obstacle       interfered          with   a

defendant's opportunity to timely file for substitution.                                 When

the circuit court instructed Zimbal to wait to file a request

for     substitution        until      trial       counsel       was    appointed,       this

prevented Zimbal from complying with the statutory timeline.                                 In

order to comply with the statutory deadline, Zimbal would have
had to disregard the instructions of the circuit court.
                                              20
                                                    Nos.   2015AP1292-CR & 2015AP1293-CR



    ¶47     Similar to the arraignment cases, a government-created

obstacle prevented Zimbal from exercising the statutory right to

substitution      before     the   statutory         deadline          expired.          Zimbal

followed the instructions of the circuit court when he waited

until    trial    counsel     was       appointed          to       file    a    motion        for

substitution.       He was not able to exercise his statutory right

to substitution when the circuit court instructed him to wait

until counsel was appointed and then later denied the motion

that counsel filed.

    ¶48     Strict     adherence        to    the    20    day       filing      deadline      is

problematic when, as here, a defendant follows a circuit court's

instruction to defer filing a request for substitution of judge

until    after    counsel     is     appointed.                A    requirement         that    a

defendant file a request for substitution within a 20 day time

limit when a circuit court in essence extends the deadline until

counsel is appointed is contrary to the goal of affording a

defendant    an   opportunity       to       exercise      the       statutory         right   to

substitution.       See Tessmer, 123 Wis. 2d at 443.
    ¶49     Finally, we turn to the question of whether Zimbal's

motion for substitution of judge filed on November 18, 2013,

seventeen days after counsel was appointed, was timely under the

circuit court's extended deadline.

    ¶50     We again look to the arraignment cases, which have

balanced    the   importance       of    giving       effect         to    the    legislative

intent     expressed    in    Wis.       Stat.      § 971.20          and       preventing      a

defendant    from    using     a    request         as     a       technique      to    disrupt
scheduled calendaring or delay a scheduled trial.                                 See, e.g.,
                                             21
                                                       Nos.    2015AP1292-CR & 2015AP1293-CR



Clark, 92 Wis. 2d at 628-29; see also Tessmer, 123 Wis. 2d at

443-44.       As this court explained in Baldwin, "[o]ne thing which

should       not    be    allowed       is     the     disruption             of       the    orderly

calendaring and trial of a case by a request on the day of trial

or at a time which upsets a trial date."                        62 Wis. 2d at 532.

       ¶51     Accordingly, one of the considerations here is that

there    is    no     indication        Zimbal       intended       to       disrupt         scheduled

calendaring or delay a scheduled trial.                             Just the opposite——he

made    an    oral       request       as    soon     as    possible          and       immediately

followed-up with a written request to the court of appeals.

There is also no evidence in the record that Zimbal had control

over the timely appointment of trial counsel.

       ¶52     Once      counsel    was       appointed,       he    filed         a    motion    for

substitution of judge within 17 days.                         Under the unique facts of

this case, it is reasonable to restart the 20 day deadline once

counsel had been appointed because the circuit court extended

the deadline.            See Clark, 92 Wis. 2d at 627.                         Accordingly, we

also agree with Zimbal that the motion for substitution of judge
filed by his trial counsel on November 18, 2013, although not

timely under the statutory deadline, was timely here because the

circuit       court      extended       the    deadline        until         after       his    trial

counsel was appointed.

                                                IV

       ¶53     In    sum,    we    conclude          that     under      the        circumstances

presented      here,      when     a    defendant          follows       a    circuit          court's

instruction to defer filing a request for substitution of a
judge until after counsel is appointed, that strict compliance
                                                22
                                              Nos.   2015AP1292-CR & 2015AP1293-CR



with the 20 day deadline for filing a request for substitution

after remittitur is not warranted.             Although Zimbal's motion for

substitution of judge was not timely filed under the statute, it

was   timely     filed   in   this   case    because    the   circuit   court   in

essence extended the deadline until after his trial counsel was

appointed.       Zimbal complied with the extended deadline when he

filed a motion for substitution of judge within 20 days after

his trial counsel was appointed.               Accordingly, we reverse the

decision of the court of appeals and remand to the circuit court

to vacate the judgments of conviction and for a new trial.

      By   the    Court.—The    decision     of   the   court   of   appeals    is

reversed, and the cause remanded to the circuit court.




                                        23
                                            Nos.    2015AP1292-CR & 2015AP1293.pdr


      ¶54   PATIENCE        DRAKE     ROGGENSACK,         C.J.     (concurring).

Although I would reverse the decision of the court of appeals

and remand for the assignment of a different circuit court judge

to preside at Zimbal's trials, I respectfully concur in, but do

not   join,   the     majority      opinion.        The   majority     opinion's

standard, which cases have described as "relax[ing]" the rule of

strict compliance with Wis. Stat. § 971.20(7),1 is too amorphous

to provide guidance in future cases where a circuit court's

interaction    with    an     unrepresented        defendant     contributes    to

temporal problems with statutory compliance.

      ¶55   Instead, I would apply the well-developed factors of

the doctrine of equitable tolling and conclude that the circuit

court herein tolled the statutory time limits of                     Wis. Stat.

§ 971.20(7)    when      it      acknowledged        Zimbal's      request     for

substitution and told Zimbal that substitution would wait until

counsel was appointed.         I would so conclude because Zimbal made

a good faith error in relying on the circuit court's statement

that his request for substitution on remand from his successful
appeal would be taken up after counsel was appointed; he had no

control over when counsel was appointed; and the State is not

prejudiced by the application of equitable tolling.                      Counsel

      1
       Majority Op. ¶41. See State ex rel Tinti v. Circuit Court
of Waukesha County, Branch II, 159 Wis. 2d 783, 788, 464 N.W.2d
853 (Ct. App. 1990) (concluding that in "both Tessmer [v.
Circuit Court Branch III, 123 Wis. 2d 439, 367 N.W.2d 235 (Ct.
App. 1985)] and Baldwin v. State, 62 Wis. 2d 521, 215 N.W.2d 541
(1974), the filing deadline of the substitution statute was
relaxed where the judicial assignment system did not adequately
advise, prior to arraignment, of the judge to whom the case was
to be assigned for trial.").


                                        1
                                                    Nos.    2015AP1292-CR & 2015AP1293.pdr


filed     Zimbal's    substitution        request          within   20    days   of   being

appointed, which was timely due to the circuit court's tolling

the   temporal       requirements        of       § 971.20(7)       until   counsel      was

appointed.        Therefore,       the    court       of     appeals     erred   when    it

affirmed    the     circuit   court's         denial       of   Zimbal's    substitution

request.

                                   I.    BACKGROUND

      ¶56    This    substitution        issue       arose      shortly     after     Zimbal

prevailed on appeal of the circuit court's denial of his Bangert

motion to withdraw his pleas.2                Upon vacation of the judgments of

conviction and his pleas, the court of appeals remanded Zimbal's

cases to the circuit court on September 4, 2013.

      ¶57    On   October     7,    2013,         when     Zimbal    appeared       without

counsel in circuit court, the following exchange took place:

           MR. ZIMBAL:    I'm also asking that you recuse
      yourself because there is no way you can be impartial.

           THE COURT:  Since you probably haven't done any
      research, I'll let your attorney do research on that
      issue and you can address that at the status
      conference. I'll deny your request at this time.
The circuit court then adjourned until an October 29 status

conference to await appointment of counsel.

      ¶58    On October 7, 2013, Zimbal also wrote to the court of

appeals asking that the circuit court judge who presided at his

convictions and sentencing be removed.                       He said, "I feel I will



      2
       State v. Zimbal, Nos. 2012AP2234-CR & 2012AP2235-CR (Wis.
Ct. App. Sept. 4, 2013); State v. Bangert, 131 Wis. 2d 246, 389
N.W.2d 12 (1986).


                                              2
                                               Nos.   2015AP1292-CR & 2015AP1293.pdr


never get any fair rulings in his courtroom due to his Bias to

this case and his inability to be impartial and Fair."

       ¶59    On October 11, 2013, remittitur occurred.                     On October

17, 2013, the clerk of the court of appeals replied to Zimbal,

explaining that the records in his cases had been remitted to

the circuit court.          On October 29, 2013, because counsel had not

yet    been    appointed       for   Zimbal,    the       status       conference   was

adjourned.

       ¶60    On    November    1,   2013,     counsel      was    appointed.        On

November      18,    2013,     counsel     filed      a     written       request   for

substitution with the circuit court.                  The circuit court denied

the    request      as    untimely     under   Wis.       Stat.    § 971.20(7)      and

proceeded to trial.

       ¶61    A jury found Zimbal guilty of multiple counts in both

pending cases.            The circuit court again sentenced Zimbal to

consecutive, maximum sentences.                Zimbal filed a postconviction

motion requesting a new trial in the interest of justice because

his motion for substitution should have been granted but was
not.    The court of appeals affirmed the circuit court's denial

of    his    postconviction      motion.       We     now      reverse,    vacate   the

judgments      of   conviction,      and   order      the      substitution    of   the

circuit court judge and new trials on the pending charges.

                                 II.    DISCUSSION

       ¶62    The State relies on Wis. Stat. § 971.20(7) to assert

that    Zimbal's         requested   substitution         is     not    timely.      It

provides:

            (7) SUBSTITUTION OF JUDGE FOLLOWING APPEAL. If an
       appellate court orders a new trial or sentencing
                                   3
                                                      Nos.   2015AP1292-CR & 2015AP1293.pdr

      proceeding, a request under this section may be filed
      within 20 days after the filing of the remittitur by
      the appellate court, whether or not a request for
      substitution was made prior to the time the appeal was
      taken.
Because     remittitur          occurred      October        11,        2013   and      Zimbal's

counsel filed the substitution request on November 18, 2013, the

State   contends,         and    the      circuit      court      and    court     of     appeals

concluded, the filing was not timely.

      ¶63    Zimbal argues that the circuit court's statement that

it would not address his request for substitution until after

counsel was appointed tolled the filing requirements of Wis.

Stat. § 971.20(7) until counsel was appointed.                             He asserts that

the doctrine of equitable tolling should be applied because he

tried to bring his right of substitution to the circuit court's

attention;     he       relied       in   good       faith   on    the     circuit      court's

statement;        he    had     no     control        over   when        counsel     would    be

appointed; and counsel filed a written request for substitution

within 20 days of being appointed.

                                A.     Standard of Review

      ¶64    We have not set a clear standard of review that should

be applied to a circuit court's decision in regard to equitable

tolling.     However, when the material facts are not contested, we

have reviewed whether temporal performance of an act has been

equitably tolled independent of the decisions of the court of

appeals     and     the    circuit        court,       but     benefitting         from    their

discussions.           State v. Nichols, 2001 WI 119, 247 Wis. 2d 1013,

635   N.W.2d      292.        Here,       material      facts      are     uncontested       and




                                                 4
                                                      Nos.    2015AP1292-CR & 2015AP1293.pdr


therefore,     we    independently          review           whether       the   doctrine    of

equitable tolling is appropriate for us to apply.

                                B.    Equitable Tolling

       ¶65   "Equitable tolling is a remedy that permits a court to

allow an action to proceed when justice requires it, even though

a   statutory       time    period        has       elapsed."          51    Am.    Jur.    2d,

Limitations of Actions § 153 (2017).                         "Equitable tolling focuses

on whether there was excusable delay by the plaintiff."                                     Id.

The doctrine may be applied when a claimant has made a good

faith error and there is an absence of prejudice to others if it

is applied.     Id., § 154.

       ¶66   We have employed equitable tolling when a required act

is dependent on a prior necessary act of another over whom the

person seeking equitable tolling has no control.                                 Nichols, 247

Wis.   2d    1013,    ¶26.        Wisconsin          appellate       courts      have   tolled

statutory deadlines as an equitable solution for harsh results

that would follow from a required action outside of defendant's

control.       Walker      v.     McCaughtry,          2001     WI   App     110,   ¶13,    244
Wis. 2d 177, 629 N.W.2d 17 (citing Steldt v. McCaughtry, 2000 WI

App 176, ¶17, 238 Wis. 2d 393, 617 N.W.2d 201).

       ¶67   In an equitable tolling defense, courts must determine

the date on which tolling may have occurred.                                 This may be a

factual or a legal question.                Griffin v. Smith, 2004 WI 36, ¶38,

270 Wis. 2d 235, 677 N.W.2d 259.                      If the question is factual, a

remand is required.             At other times, as when material facts are

uncontested,        the    date      on   which        tolling       may    occur    will    be
established as a matter of law.                     Id.

                                                5
                                                    Nos.    2015AP1292-CR & 2015AP1293.pdr


       ¶68    Here,       Zimbal    requested       counsel;        however,      he     had    no

control over when counsel would be appointed.                                  On October 7,

while    Zimbal      was     unrepresented,        the      circuit      court        said    that

Zimbal's      substitution          request    would        wait     until      counsel        was

appointed.           On    October     7,     2013,        Zimbal       also    brought        his

substitution request to the clerk of the court of appeals, and

he continued to wait for the appointment of counsel.

       ¶69    In regard to Zimbal's equitable tolling argument, the

State does not assert that it would be prejudiced by granting

Zimbal's substitution request.                     The State merely asserts that

the cases Zimbal cites deal with prisoners and should not excuse

Zimbal's failure to file a written substitution request.

       ¶70    I agree with Zimbal.             He relied on the circuit court's

directive that his substitution request would wait until after

counsel was appointed.               He made a good faith error in waiting

for the appointment of counsel, and the State is not prejudiced

by    the    application       of    equitable       tolling       to    his     request       for

substitution         under    Wis.     Stat.       § 971.20(7).              Accordingly,        I
conclude      that    the     circuit       court's        October      7,     2013    decision

tolled       the     temporal       requirements            for     substitution             under

§ 971.20(7) until after counsel was appointed.

       ¶71    Counsel was appointed for Zimbal on November 1, 2013.

Because Zimbal's counsel had 20 days after appointment to file a

substitution request, his filing was due on or before November

21.     He filed for substitution on November 18, 2013.                                Zimbal's

substitution request was timely.



                                               6
                                                Nos.    2015AP1292-CR & 2015AP1293.pdr


                               III.    CONCLUSION

      ¶72   In    conclusion,     I        would       apply    the    well-developed

factors of the doctrine of equitable tolling and conclude that

the circuit court herein tolled the statutory time limits of

Wis. Stat. § 971.20(7) when it acknowledged Zimbal's request for

substitution and told Zimbal that substitution would wait until

counsel was appointed.         I would so conclude because Zimbal made

a good faith error in relying on the circuit court's statement

that his request for substitution on remand from his successful

appeal would be taken up after counsel was appointed; he had no

control over when counsel was appointed; and the State is not

prejudiced by the application of equitable tolling.                             Counsel

filed   Zimbal's    substitution       request         within    20   days     of   being

appointed, which was timely due to the circuit court's tolling

the   temporal     requirements       of    § 971.20(7)         until    counsel      was

appointed.        Therefore,    the    court       of    appeals      erred    when   it

affirmed    the   circuit    court's       denial       of   Zimbal's    substitution

request.      Having    so     stated,      I    respectfully         concur    in    the
majority opinion.

      ¶73   I am authorized to state that Justices REBECCA GRASSL

BRADLEY and DANIEL KELLY join this concurrence.




                                            7
                                          Nos.      2015AP1292-CR & 2015AP1293-CR.akz


     ¶74     ANNETTE KINGSLAND ZIEGLER, J.                 (concurring).           I join

the opinion of the court because it is written narrowly and tied

to the unique circumstances present in this case.                           However, I

write separately to emphasize that a defendant's right to the

substitution of his judge under Wis. Stat. § 971.20 "is a matter

of legislative grace, not constitutional mandate."                               State ex

rel. Garibay v. Circuit Court for Kenosha Cty., 2002 WI App 164,

¶9, 256 Wis. 2d 438, 647 N.W.2d 455.                 Therefore, the legislature

could   eliminate       § 971.20    entirely        if    it    wished      to    do    so.

Although one does have a statutory right to substitution, that

right is far from a constitutional right.

     ¶75     While I join the court's opinion, I do not endorse all

of the reasoning present in the cases the court cites.                            Many of

these cases refer to a defendant's "ability to exercise his

right   of    substitution       intelligently."               Clark   v.    State,      92

Wis. 2d 617,     628,    286     N.W.2d 344         (1979).       When      words      like

"intelligently" exercise are used, that cannot be read to mean

that somehow a person needs to affirmatively waive the right to
substitution, which is just not the case.                      In fact, missing the

statutory deadline in and of itself results in a relinquishment

of   the     right.      There     need       not    be   anything       particularly

"intelligent" about missing that deadline.                      See, e.g., State v.

Naydihor, 2004 WI 43, ¶55 n.11, 270 Wis. 2d 585, 678 N.W.2d 220

("Naydihor . . . attempted to exercise his statutory right to

automatic substitution, pursuant to Wis. Stat. § 971.20(5).                             The

motion was denied because it was untimely."); State v. Beaty, 57
Wis. 2d 531, 542, 205 N.W.2d 11 (1973) ("Defendant claims error

                                          1
                                              Nos.    2015AP1292-CR & 2015AP1293-CR.akz


on the part of the trial court in refusing to grant a motion for

substitution of judges. . . . The motion was not timely, and was

properly denied.").              I would therefore take this opportunity to

modify the case law language that could be read to suggest that

somehow waiver must be intelligently done and that seems to

bestow upon this statutory right a prominence and protections it

does not merit.            I am nevertheless able to join the court's

opinion because it does not weigh in on the correctness of that

language.

      ¶76     Ultimately,         I   agree    that       under    the    unusual   facts

presented, Zimbal is entitled to relief.                          While Zimbal's later

request, in and of itself, would otherwise have been properly

denied under the plain terms of Wis. Stat.                           § 971.20(7), the

circuit court had previously directly assured the defendant that

it    would      allow     the     defendant      additional         time    to   request

substitution and in fact, specifically denied the defendant's

ability to timely file under the statute.                        The defendant was not

allowed     to    timely    file      pursuant       to    the    statute   because   the
circuit court postponed addressing that request.                            But then the

circuit     court,       after    the   statutory         deadline    had   passed,   but

still timely under the circuit court's order, then denied the

defendant's request citing the statute and concluding that it

was     untimely.          Clearly,      these       are    unique       facts.   Indeed,

litigants should be hesitant to cite this case as authority in

the future in circumstances not identical to what occurred here.

Absent these unique facts, an untimely filing would be just
that.    It need not be intelligently waived.

                                              2
                            Nos.   2015AP1292-CR & 2015AP1293-CR.akz


¶77   For the foregoing reasons, I respectfully concur.




                            3
Nos.   2015AP1292-CR & 2015AP1293-CR.akz




1
