Wisconsin Statutes
Wis. Stat. § 971.29 (2026)
Amending the charge
✓ current as of July 2026
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971.29(1)(1) A complaint or information may be amended at any time prior to arraignment without leave of the court.
971.29(2)(2) At the trial, the court may allow amendment of the complaint, indictment or information to conform to the proof where such amendment is not prejudicial to the defendant. After verdict the pleading shall be deemed amended to conform to the proof if no objection to the relevance of the evidence was timely raised upon the trial.
971.29(3)(3) Upon allowing an amendment to the complaint or indictment or information, the court may direct other amendments thereby rendered necessary and may proceed with or postpone the trial.
971.29 AnnotationWhen there is evidence that a jury could believe proved guilt, the trial court cannot sua sponte set aside the verdict, amend the information, and find the defendant guilty on a lesser charge. State v. Helnik, 47 Wis. 2d 720, 177 N.W.2d 881 (1970).
971.29 AnnotationSince theft is an included crime of robbery, the amendment of the information from robbery to theft did not materially prejudice the defendant. All of the elements of theft are included in the elements of robbery. Of necessity, then, the defendant had notice and opportunity to prepare a defense to the elements of theft as well as to the additional elements that comprise the crime of robbery. Moore v. State, 55 Wis. 2d 1, 197 N.W.2d 820 (1972).
971.29 AnnotationSub. (2), in regard to amendments after verdict, applies only to technical variances in the complaint, not material to the merits of the action. It may not be used to substitute a new charge. State v. Duda, 60 Wis. 2d 431, 210 N.W.2d 763 (1973).
971.29 AnnotationThe refusal of a proposed amendment of an information has no effect on the original information. An amendment to charge a violation of a substantive section as well as a separate penalty section is not prejudicial to a defendant. Wagner v. State, 60 Wis. 2d 722, 211 N.W.2d 449 (1973).
971.29 AnnotationSub. (1) does not prohibit amendment of the information with leave of the court after arraignment, but before trial, provided that the defendant’s rights are not prejudiced. Whitaker v. State, 83 Wis. 2d 368, 265 N.W.2d 575 (1978).
971.29 AnnotationNotice of the nature and cause of the accusations is a key factor in determining whether an amendment at trial has prejudiced a defendant. The inquiry is whether the new charge is so related to the transaction and facts adduced at the preliminary hearing that a defendant cannot be surprised by the new charge since the preparation for the new charge would be no different than the preparation for the old charge. State v. Neudorff, 170 Wis. 2d 608, 489 N.W.2d 689 (Ct. App. 1992).
971.29 AnnotationFailure of the state to obtain court permission to file a post-arraignment amended information did not deprive the court of subject matter jurisdiction. State v. Webster, 196 Wis. 2d 308, 538 N.W.2d 810 (Ct. App. 1995), 93-3217.
971.29 AnnotationThat the court’s jurisdiction is invoked by the commencement of a case and that the legislature has granted prosecutors sole discretion to amend a charge only prior to arraignment means that the prosecutor’s unchecked discretion stops at the point of arraignment. State v. Conger, 2010 WI 56, 325 Wis. 2d 664, 797 N.W.2d 341, 08-0755.
971.29 AnnotationThe trial court cannot after trial amend a charge of sexual intercourse with a child to one of contributing to the delinquency of a minor since the offenses require proof of different facts and the defendant is entitled to notice of the charge against the defendant. LaFond v. Quatsoe, 325 F. Supp. 1010 (1971).
Notes of Decisions
Cited in 56
cases (17 in the last 5 years), 1970–2025 · leading case: State v. Martin, 470 N.W.2d 900 (Wis. 1991).
State v. Martin, 470 N.W.2d 900 (Wis. 1991). “The court ruled that, pursuant to sec. 971.29, Stats., an information could be amended to include a repeater allegation after arraignment where there is no prejudice to the defendant.”
State v. Conger, 2010 WI 56 (Wis. 2010). “The first two questions presented by this case are answered by Wis. Stat. § 971.29 2 (which permits amendment of the charge without judicial approval only prior to arraignment) and established precedent concerning the circuit court's inherent authority to reject a plea that is…”
State v. Bonds, 2006 WI 83 (Wis. 2006). “We interpreted Wis. Stat. § 971.29 [5] in reaching our conclusion that there was no statutory bar to amending an information with leave of the court after arraignment so long as there was no prejudice to the defendant.”
State v. Kleser, 2010 WI 88 (Wis. 2010). “See Wis. Stat. § 971.29 (1). ¶ 63 It must be recognized that if the state establishes probable cause to believe that the defendant has violated either Wis.”
State v. Derango, 2000 WI 89 (Wis. 2000). “Specifically, Derango asks us to consider *751 whether Wis. Stat. § 971.29 (2) ever permits the amendment of criminal charges after testimony concludes.”
State v. Webster, 538 N.W.2d 810 (Wis. Ct. App. 1995). “2d 575 (1978), the supreme court declared that § 971.29 "does not directly address the question of the amendment of the information after arraignment and before trial.”
State v. Thompson, 2012 WI 90 (Wis. 2012). “Wis. Stat. § 971.29 (emphasis added). ¶ 83.”
State v. Schultz, 922 N.W.2d 866 (Wis. Ct. App. 2018). “§ 971.29 -the statute addressing the amendment of a charge-supports our adoption of a test that looks to the entire record to clarify any ambiguity regarding *506 the scope of double jeopardy.”
Whitaker v. State, 265 N.W.2d 575 (Wis. 1978). “Whitaker argues that the plain language of sec. 971.29, Stats., compels the conclusion that an information may not be amended by the State, with or without leave of court, after arraignment and the entry of a plea, and that therefore the trial court had no jurisdiction to try…”
State v. Gerard, 525 N.W.2d 718 (Wis. 1995). “2d 575 (1978), we concluded that, in adopting sec. 971.29, Stats., the legislature intended to permit post-plea amendment of an information "[if] the defendant's rights are not prejudiced.”
State v. DeRango, 599 N.W.2d 27 (Wis. Ct. App. 1999). “After the amended information was filed, DeRango objected on the grounds that amending the information after the evidence was presented did not comply with the requirements under § 971.29, STATS., and that he could not defend against these charges because he had not received…”
State v. Fleming, 510 N.W.2d 837 (Wis. Ct. App. 1993). “Section 971.29(2), Stats. Variance from the complaint or information has been held immaterial where the court amended the charge against the defendant to charge a lesser-included crime.”
— Wis. Stat. § 971.29(1) — 10 cases
State v. Martin, 470 N.W.2d 900 (Wis. 1991). “The court ruled that, pursuant to sec. 971.29, Stats., an information could be amended to include a repeater allegation after arraignment where there is no prejudice to the defendant.”
State v. Conger, 2010 WI 56 (Wis. 2010). “The first two questions presented by this case are answered by Wis. Stat. § 971.29 2 (which permits amendment of the charge without judicial approval only prior to arraignment) and established precedent concerning the circuit court's inherent authority to reject a plea that is…”
State v. Webster, 538 N.W.2d 810 (Wis. Ct. App. 1995). “2d 575 (1978), the supreme court declared that § 971.29 "does not directly address the question of the amendment of the information after arraignment and before trial.”
State v. Martin, 456 N.W.2d 892 (Wis. Ct. App. 1990).
State v. Bury, 2001 WI App 37 (Wis. Ct. App. 2001).
— Wis. Stat. § 971.29(2) — 24 cases
State v. Schultz, 922 N.W.2d 866 (Wis. Ct. App. 2018). “§ 971.29 -the statute addressing the amendment of a charge-supports our adoption of a test that looks to the entire record to clarify any ambiguity regarding *506 the scope of double jeopardy.”
State v. Fleming, 510 N.W.2d 837 (Wis. Ct. App. 1993). “Section 971.29(2), Stats. Variance from the complaint or information has been held immaterial where the court amended the charge against the defendant to charge a lesser-included crime.”
State v. Flakes, 410 N.W.2d 614 (Wis. Ct. App. 1987).
State v. Frey, 505 N.W.2d 786 (Wis. Ct. App. 1993).
State v. Tawanna H., 590 N.W.2d 276 (Wis. Ct. App. 1998).
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