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  • February 08, 2023

    E-submission Date is Filing Date for Documents, Regardless of When Clerk Accepts

    A criminal information electronically submitted within 30 days of the defendant’s preliminary hearing was timely filed, even though the clerk didn’t accept the information until 30 days after the hearing, the Wisconsin Court of Appeals has ruled.

    Jeff M. Brown

    A Woman’s Hand Stamping A Document With An Ink Stamp

    Feb. 8, 2023 – A criminal information electronically submitted within 30 days of the defendant’s preliminary hearing was timely filed, even though the clerk didn’t accept the information until 30 days after the hearing, the Wisconsin Court of Appeals has ruled.

    In State v. Aderemi, 2021AP1445 (Jan. 31, 2023), the Court of Appeals held (2-1) that the fact the defendant was handed a paper copy of the information on the date it was electronically submitted meant he wasn’t prejudiced by delay in the clerk’s acceptance.

    Paper Copy in Court, Sans Stamp

    In July 2018, the Milwaukee County District Attorney charged Ayodeji Aderemi with four counts of child sexual assault. Aderemi appeared before a court commissioner on Aug. 1 and waived his preliminary hearing.

    Jeff M. Brown Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    On Aug. 6, the circuit court held an arraignment. At the arraignment hearing, Aderemi’s attorney acknowledged having received a copy of the information.

    The circuit court held a bond hearing on Oct. 2, 2018. During the hearing, the clerk said that Wisconsin’s public website of court records, known as CCAP, contained an entry for the information, but no document was attached to the entry.

    Aderemi’s attorney told the court that he had a copy of the information but it lacked the official stamp.

    CCAP Confusion

    At the start of Aderemi’s trial on Jan. 7, 2019, the circuit court said that while the prosecutor filed the information on Aug. 6, 2018, the clerk didn’t post the information or file it on the docket.

    Clicking on the information’s entry in the CCAP system called up a document with a file stamp dated Dec. 7, 2018, the circuit court said. The circuit court said that Dec. 7 was the date the clerk was able to retrieve the information from the clerk’s electronic system and officially file it.

    The circuit court concluded that under Wis. Stat. section 971.05(3), the information had been properly filed because the prosecutor gave Aderemi a signed paper copy of the information in court on Aug. 6, 2018.

    The jury convicted Aderemi on three of the four counts. Aderemi appealed.

    30-day Deadline

    Judge Maxine White began her opinion for the majority by pointing out that under section 971.01(2), an information must be filed within 30 days of the preliminary hearing; failure to meet that deadline entitles a defendant to have the action dismissed without prejudice.

    Aderemi argued that the information wasn’t officially filed until Dec. 7, 2018, well beyond the 30-day deadline. As a result, he argued, his conviction should be dismissed.

    The state argued that the information was legally filed and that any irregularity in the filing affected only the form, not the substance of the filing. As a result, the state argued, under section 971.26, Aderemi wasn’t entitled to relief because the irregularity did not prejudice him.

    Submission Date Controls

    White noted that the Wisconsin Supreme Court has held that for an appeal, the filing date is the date the appeal was actually received by the clerk, not the date the appeal was stamped as received.

    “A litigant can only control the first part of the filing process,” Judge White wrote.

    The rise of electronic filing prompted the legislature to enact section 801.18(4), White pointed out.

    Under that section, she explained, a document is considered filed on the date it was submitted to the electronic filing system if: 1) it was submitted by 11:59 p.m. or earlier; and 2) is later accepted by the clerk.

    Looking at the plain wording of section 801.18(4), Judge White concluded that the filing date for an electronically filed document is the date the document was submitted.

    While section 801.18(4) requires the clerk to subsequently accept an electronically filed document, to in effect lock in the submission date as the filing date, “there is no deadline in the statute for the clerk to accept the file,” White wrote.

    “Under e-filing, the ‘date stamped on the [document] does not speak conclusively to the date of filing,’” White wrote, quoting a Wisconsin Court of Appeals decision.

    Filing Facts Immaterial

    Aderemi argued that he was entitled to an evidentiary hearing on when the information was filed.

    But Judge White wrote that, while the facts surrounding the filing of the information were 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,” White wrote. “We will not hold the litigant responsible for the actions of the clerk in accepting the digital files.”  

    No Prejudice

    Moreover, Judge White concluded that Aderemi had not been prejudiced by the irregularity of the information’s filing.

    “Trial counsel acknowledged receipt of the Information in a timely fashion,” Judge White wrote. “Aderemi was not deprived of the purpose of the Information to allow him to adequately prepare a defense.”

    Dissent: Deadline Is Ironclad

    In his dissent, Judge Timothy Dugan pointed out that under section 801.18(9)(a), for electronically filed documents the electronic version is the official record, and no paper copy is to be sent to the court.

    The trial court erred by finding that the information was filed on Aug. 6, 2018, Dugan wrote, “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 the date.”

    Additionally, Judge Dugan noted that neither the state nor the clerk explained to the trial court why the information wasn’t stamped Aug. 6, 2018, if the clerk accepted the information on Dec. 7, 2018. And section 971.26 could not override the 30-day deadline in section 971.01(2), Dugan argued.

    “[Section 971.01(2)] clearly states and mandates that if the information is not timely filed a defendant is entitled to have the action dismissed,” Judge Dugan wrote.

    “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.”

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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

    © 2023 State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158.

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