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COURT OF APPEALS DECISION DATED AND RELEASED May 21, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0011-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
COVAN A. GAVITT,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Marathon County:
VINCENT K. HOWARD, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Covan Gavitt appeals an order denying his request for
substitution of judge.[1] Because Gavitt did not timely request
substitution in the appropriate case, we affirm the order denying substitution
and decline to decide whether Judge Howard was a "new judge" as that
term is used in § 971.20(5), Stats.
Gavitt was initially
charged with kidnapping Pamela C. (case 275).
He requested substitution of Judge Hoover and the case was transferred
to Judge Howard. Gavitt was then
charged with multiple counts arising from the abduction and sexual assault of
Diane K. (case 284). That case was
initially assigned to Judge Thums.
After Judge Howard granted joinder of the two cases, the parties jointly
agreed that Judge Howard would hear the consolidated cases.
Judge Howard was then
defeated in his bid for reelection. His
cases were assigned to Reserve Judge Weisel.
When Judge Howard was appointed by the Governor to fill a vacancy, these
cases were administratively reassigned to Judge Howard. Even though the cases were consolidated,
separate orders were issued when the cases were assigned to Judge Weisel and
again when they were reassigned to Judge Howard. Contending that Judge Howard is a "new judge" under
§ 971.20(5), Stats., Gavitt
now seeks substitution of Judge Howard.
Gavitt's motion for
substitution of Judge Howard was made in case 275. Because Gavitt had already substituted a judge in that case, he
is not allowed a second substitution. See
State ex rel. Mace v. Green Lake County Circuit Court, 193 Wis.2d
208, 215, 532 N.W.2d 720, 722 (1995).
No motion for substitution of judge was timely filed in case 284.
Gavitt would have this
court treat the request for substitution as though it had been made in case 284
because the two cases had been consolidated.
Gavitt presents inconsistent arguments regarding the effective
consolidation on the issue of substitution.
He argues that the substitution of Judge Hoover does not preclude
substitution in case 284 even though the cases were consolidated. If the cases are to maintain their separate
identity for purposes of substitution of judge regardless of the consolidation,
it is incumbent on a moving party to correctly identify the case in which
substitution of judge is sought. The
trial judge is not required to grant substitution on the basis of a motion
Gavitt wished he had made, rather than the motion he actually did make.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.