SB490: Bill Text

LRB-2910/1

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2001 - 2002 LEGISLATURE

2001 Senate BILL 490

March 7, 2002 - Introduced by Senator George, by request of the Judicial Council. Referred to Committee on Judiciary, Consumer Affairs, and Campaign Finance Reform.

SB490,2,2 An Act to repeal 809.40 (1); to renumber and amend 808.10, 809.30 (1) (a) and 809.30 (1) (b); to amend 808.04 (3), 808.04 (4), 809.10 (1) (d), subchapter III (title) of chapter 809 [precedes 809.30], 809.30 (title), 809.30 (2) (title), 809.30 (2) (a), 809.30 (2) (b) (intro.), 809.30 (2) (b) 2., 809.30 (2) (b) 3., 809.30 (2) (b) 4., 809.30 (2) (b) 5., 809.30 (2) (b) 6., 809.30 (2) (c) 1., 809.30 (2) (c) 2., 809.30 (2) (d), 809.30 (2) (e), 809.30 (2) (f), 809.30 (2) (fm), 809.30 (2) (g) 1., 809.30 (2) (g) 2., 809.30 (2) (h), 809.30 (2) (i), 809.30 (2) (j), 809.30 (2) (k), 809.30 (3), 809.30 (4), 809.32 (1) (a), 809.32 (1) (b) 1. (intro.), 809.32 (1) (b) 1. c., 809.32 (1) (b) 2., 809.32 (1) (c) (form), 809.32 (1) (d) and (e), 809.32 (1) (f) and (g), 809.32 (2), 809.32 (3), 809.32 (4), subchapter IV (title) of chapter 809 [precedes 809.40], 809.40 (title), 809.40 (1m), 809.40 (3), 809.62 (1) (intro.), 809.82 (2) (b), 974.02 (1) and 974.02 (2); and to create 48.297 (8), 808.03 (3), 808.10 (2), 809.30 (1) (c), 809.30 (1) (d), 809.30 (1) (f), 809.30 (1) (g), 809.30 (2) (hm), 938.297 (8), 971.17 (7m) and 980.061 of the statutes; relating to: appellate procedure.

Analysis by the Legislative Reference Bureau

In criminal cases, current law permits the review of an order denying a motion to suppress evidence or a motion challenging admissibility of a defendant's statement as part of an appeal from a conviction, notwithstanding the fact that the judgment of conviction was entered on a guilty plea. This bill permits review of an order denying a motion to suppress evidence or a motion challenging admissibility of the statement of a child, an expectant mother, or a parent as part of an appeal from a final judgment or order, notwithstanding the fact that the final judgment or order was entered on an admission, consent, or no contest plea to allegations in a petition filed in cases involving children in need of protection or services or a petition to terminate parental rights. This bill also permits the review of orders denying a motion to suppress evidence or a motion challenging admissibility of the statement of a juvenile upon review from a final judgment or order, notwithstanding the fact that the final judgment or order was entered upon a plea of no contest or an admission to the allegations of a petition filed in cases involving juveniles alleged to be delinquent.

Current law requires that a person seeking supreme court review of an adverse court of appeals decision file a petition for review within 30 days of the court of appeals decision. Current law also provides a procedure for seeking reconsideration of a court of appeals decision, but does not toll the time to file a petition for review while the motion for reconsideration is pending. This bill tolls the time for filing a petition for review while a motion for reconsideration is pending in the court of appeals, and establishes revised time limits for filing a petition for review or supplemental petition for review after the court of appeals decides the motion for reconsideration.

Current law establishes the appellate procedures applicable to various types of cases. Under current law, appeals in misdemeanor cases and cases involving children, juveniles alleged to be delinquent, protective services, or persons subject to commitment due to mental health or drug abuse are directed by statutory cross-reference to follow felony appeal procedures. Under current law, appeals in cases involving the commitment of sexually violent persons follow civil appeal procedures. This bill establishes one integrated appeal procedure for appeals in felony and misdemeanor cases, cases involving children, juveniles alleged to be delinquent, protective services, or persons subject to commitment due to mental health or drug abuse, the commitment of sexually violent persons, as well as proceedings related to the commitment of persons found not guilty by reason of mental defect. This bill also creates a procedure for seeking postdisposition relief in cases involving the commitment of sexually violent persons.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB490, s. 1 Section 1. 48.297 (8) of the statutes is created to read:

SB490,3,7 48.297 (8) An order denying a motion to suppress evidence or a motion challenging the admissibility of a statement of a child, an expectant mother, or a parent may be reviewed upon appeal from a final judgment or order notwithstanding the fact that such final judgment or order was entered upon an admission, a consent, or a plea of no contest to the allegations in the petition under s. 48.13 or 48.133 or a petition to terminate parental rights.

SB490, s. 2 Section 2. 808.03 (3) of the statutes is created to read:

SB490,3,15 808.03 (3) Review of an order denying suppression or exclusion of evidence. An order denying a motion to suppress evidence or a motion challenging the admissibility of a statement of a defendant under s. 971.31 (10), a juvenile under s. 938.297 (8), or a child, expectant mother, or parent under s. 48.297 (8), may be reviewed upon appeal from a final judgment or order notwithstanding the fact that the final judgment or order was entered upon a plea of guilty or no contest, an admission, or a consent to an information, criminal complaint, or petition.

SB490, s. 3 Section 3. 808.04 (3) of the statutes is amended to read:

SB490,3,19 808.04 (3) Except as provided in subs. (4) and (7), an appeal in a criminal case or a case under s. 971.17 or ch. 48, 51, 55 or, 938, or 980 shall be initiated within the time period specified in s. 809.30 (2) or 809.32 (2).

SB490, s. 4 Section 4. 808.04 (4) of the statutes is amended to read:

SB490,4,4 808.04 (4) Except as provided in sub. (7m), an appeal by the state in either a criminal case under s. 974.05, a proceeding under s. 971.17, or a case under ch. 48 or, 938, or 980 shall be initiated within 45 days of entry of the judgment or order appealed from.

SB490, s. 5 Section 5. 808.10 of the statutes is renumbered 808.10 (1) and amended to read:

SB490,4,11 808.10 (1) Petition for review; time limit. A decision or order of the court of appeals is reviewable by the supreme court only upon a petition for review granted by the supreme court. The Except as provided in sub. (2), the petition for review shall be filed in the supreme court within 30 days of the date of the decision of the court of appeals.

SB490, s. 6 Section 6. 808.10 (2) of the statutes is created to read:

SB490,4,16 808.10 (2) Tolling pending court of appeals reconsideration. (a) Filing of a motion for reconsideration in the court of appeals under s. 809.24 (1) within 20 days after the date of a decision of the court of appeals tolls the time for filing a petition for review in the supreme court.

SB490,4,21 (b) If the motion for reconsideration is filed in the court of appeals before any petition for review is filed in the supreme court, the 30-day time period to file the petition for review starts on the date on which the court of appeals determines the motion for reconsideration by filing an order denying the motion for reconsideration or an amended decision.

SB490,4,24 (c) If a motion for reconsideration is filed, no party may file a petition for review in the supreme court until the court of appeals issues an order denying the motion for reconsideration or an amended decision.

SB490,5,7 (d) If a motion for reconsideration is denied and a petition for review was filed before the motion for reconsideration was filed, and if the time for filing a supplemental petition pursuant to s. 809.32 (4) had not expired when the motion for reconsideration was filed, the supplemental petition may be filed within 14 days after the filing of the order denying the motion for reconsideration or within the time remaining to file the supplemental petition at the time that the motion for reconsideration was filed, whichever is greater.

SB490,5,14 (e) If the court of appeals files an amended decision in response to the motion for reconsideration, any party who filed a petition for review, or a supplemental petition pursuant to s. 809.32 (4), prior to the filing of the motion for reconsideration must file with the clerk of the supreme court a notice affirming the pending petition or supplemental petition, a notice withdrawing the pending petition or supplemental petition, or an amendment to the petition for review or supplemental petition within 14 days after the date of the filing of the court of appeals' amended decision.

SB490, s. 7 Section 7. 809.10 (1) (d) of the statutes, as affected by Supreme Court Order 00-02, is amended to read:

SB490,6,2 809.10 (1) (d) Docketing statement. The person shall send the court of appeals an original and one copy of a completed docketing statement on a form prescribed by the court of appeals. The docketing statement shall accompany the court of appeals' copy of the notice of appeal. The person shall send a copy of the completed docketing statement to the other parties to the appeal. Docketing statements need not be filed in appeals brought under s. 809.105, 809.107, 809.32, or 974.06 (7), or in cases in which a party represents himself or herself. Docketing statements need not be filed in appeals brought under s. 809.30 or 809.40 (1) 974.05, or by the state or the defendant in permissive appeals in criminal cases under s. 809.50, except that a docketing statement statements shall be filed in cases arising under chs. ch. 48, 51, 55, or 938.

SB490, s. 8 Section 8. Subchapter III (title) of chapter 809 [precedes 809.30] of the statutes is amended to read:

SB490,6,5 CHAPTER 809

SB490,6,6 SUBCHAPTER III

SB490,6,10 FELONY APPEAL PROCEDURE IN COURT OF APPEALS in Criminal, Chs. 48, 51, 55, 938, and 980, and other cases

SB490, s. 9 Section 9. 809.30 (title) of the statutes is amended to read:

SB490,6,13 809.30 (title) Rule (Appeals in felony criminal, chs. 48, 51, 55, 938, and 980, and other cases).

SB490, s. 10 Section 10. 809.30 (1) (a) of the statutes, as affected by 2001 Wisconsin Act 16, is renumbered 809.30 (1) (e) and amended to read:

SB490,6,23 809.30 (1) (e) "Postconviction relief" means, in a felony or misdemeanor case, an appeal or a motion for postconviction relief under this subchapter from a circuit court's final judgment or order in a criminal case other than a motion under s. 973.19, 974.06, or 974.07 (2). In a ch. 48, 51, 55 or 938 case, other than a termination of parental rights case under s. 48.43, it means an appeal or a motion for reconsideration by the trial court of its final judgment or order; in such cases a notice of intent to pursue such relief or a motion for such relief need not be styled as seeking "postconviction" relief.

SB490, s. 11 Section 11. 809.30 (1) (b) of the statutes is renumbered 809.30 (1) (h) and amended to read:

SB490,7,4 809.30 (1) (h) "Sentencing" means, in a felony or misdemeanor case, the imposition of a sentence, a fine, or probation. In a ch. 48, 51, 55 or 938 case, other than a termination of parental rights case under s. 48.43, it means the entry of the trial court's final judgment or order in a criminal case.

SB490, s. 12 Section 12. 809.30 (1) (c) of the statutes is created to read:

SB490,7,9 809.30 (1) (c) "Final adjudication" means the entry of a final judgment or order by the circuit court in an s. 971.17 proceeding or in a ch. 48, 51, 55, 938, or 980 case, other than a termination of parental rights case under s. 48.43 or a parental consent to abortion case under s. 48.375.

SB490, s. 13 Section 13. 809.30 (1) (d) of the statutes is created to read:

SB490,7,11 809.30 (1) (d) "Person" means any of the following:

SB490,7,12 1. A defendant seeing postconviction relief.

SB490,7,15 2. A party, other than the state, seeking postdisposition relief in a ch. 48 case, other than a termination of parental rights case under s. 48.43 or a parental consent to abortion case under s. 48.375 (7).

SB490,7,16 3. A party, other than the state, seeking postdisposition relief in a ch. 938 case.

SB490,7,18 4. A subject individual or ward seeking postdisposition relief in a ch. 51, 55, or 980 case or an s. 971.17 proceeding.

SB490,7,19 5. Anyone who may appeal under s. 51.13 (5), 51.20 (15), or 55.06 (18).

SB490, s. 14 Section 14. 809.30 (1) (f) of the statutes is created to read:

SB490,7,22 809.30 (1) (f) "Postdisposition relief" means an appeal or motion for relief under this subchapter from a circuit court's final adjudication.

SB490, s. 15 Section 15. 809.30 (1) (g) of the statutes is created to read:

SB490,8,3 809.30 (1) (g) "Prosecutor" means a district attorney, corporation counsel, or other attorney authorized by law to prosecute a criminal case, a case under ch. 48, 51, 55, 938, or 980, or a proceeding under s. 971.17.

SB490, s. 16 Section 16. 809.30 (2) (title) of the statutes is amended to read:

SB490,8,6 809.30 (2) (title) Appeal or ; postconviction or postdisposition motion by defendant.

SB490, s. 17 Section 17. 809.30 (2) (a) of the statutes, as affected by Supreme Court Order 00-02, is amended to read:

SB490,8,19 809.30 (2) (a) Appeal procedures; counsel to continue. A defendant person seeking postconviction relief in a felony criminal case or a person seeking postdisposition relief in a ch. 48 case, other than a termination of parental rights case under s. 48.43 or a parental consent to abortion case under s. 48.375 (7), or a person seeking postdisposition relief in a ch. 51, 55, 938, or 980 case or an s. 971.17 proceeding shall comply with this section. Counsel representing the defendant person at sentencing or at the time of the final adjudication shall continue representation by filing a notice under par. (b) if the defendant person desires to pursue postconviction or postdisposition relief unless sooner counsel is discharged by the defendant person or allowed to withdraw by the trial circuit court before the notice must be filed.

SB490, s. 18 Section 18. 809.30 (2) (b) (intro.) of the statutes, as affected by Supreme Court Order 00-02, is amended to read:

SB490,9,2 809.30 (2) (b) Notice of intent to pursue postconviction or postdisposition relief. (intro.) Within 20 days after the date of sentencing or final adjudication, the defendant person shall file in circuit court and serve on the district attorney prosecutor and every other party a notice of intent to pursue postconviction or postdisposition relief. The notice shall include all of the following:

SB490, s. 19 Section 19. 809.30 (2) (b) 2. of the statutes is amended to read:

SB490,9,6 809.30 (2) (b) 2. An identification of the judgment or order from which the defendant person intends to seek postconviction or postdisposition relief and the date on which it was granted or entered.

SB490, s. 20 Section 20. 809.30 (2) (b) 3. of the statutes is amended to read:

SB490,9,9 809.30 (2) (b) 3. The name and address of the defendant person and the defendant's his or her trial counsel.

SB490, s. 21 Section 21. 809.30 (2) (b) 4. of the statutes is amended to read:

SB490,9,14 809.30 (2) (b) 4. Whether defendant's the person's trial counsel was appointed by the state public defender and, if so, whether the defendant's person's financial circumstances have materially improved since the date the defendant's on which his or her indigency was determined.

SB490, s. 22 Section 22. 809.30 (2) (b) 5. of the statutes is amended to read:

SB490,9,17 809.30 (2) (b) 5. Whether the defendant person requests the state public defender to appoint counsel for purposes of postconviction or postdisposition relief.

SB490, s. 23 Section 23. 809.30 (2) (b) 6. of the statutes, as affected by Supreme Court Order 00-02, is amended to read:

SB490,9,24 809.30 (2) (b) 6. Whether a defendant person who does not request the state public defender to appoint counsel will represent himself or herself or will be represented by retained counsel. If the defendant person has retained counsel to pursue postconviction or postdisposition relief, counsel's name and address shall be included.

SB490, s. 24 Section 24. 809.30 (2) (c) 1. of the statutes, as affected by Supreme Court Order 00-02, is amended to read:

SB490,10,10 809.30 (2) (c) 1. If the defendant person requests representation by the state public defender for purposes of postconviction or postdisposition relief, send to the state public defender's appellate intake office a copy of the notice that shows the date on which it was filed or entered, a copy of the judgment or order specified in the notice that shows the date on which it was filed or entered, a list of the court reporters for each proceeding in the action in which the judgment or order was entered, and a list of those proceedings in which a transcript has been filed with the clerk of circuit court.

SB490, s. 25 Section 25. 809.30 (2) (c) 2. of the statutes, as affected by Supreme Court Order 00-02, is amended to read:

SB490,10,19 809.30 (2) (c) 2. If the defendant person does not request representation by the state public defender, send or furnish to the defendant, if the defendant is person appearing without counsel, or to the defendant's person's attorney if one has been retained, a copy of the judgment or order specified in the notice that shows the date on which it was filed or entered, a list of the court reporters for each proceeding in the action in which the judgment or order was entered, and a list of those proceedings in which a transcript has been filed with the clerk of circuit court.