SB490: Bill Text

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.

SB490, s. 26 Section 26. 809.30 (2) (d) of the statutes, as affected by Supreme Court Order 00-02, is amended to read:

SB490,11,5 809.30 (2) (d) Indigency redetermination. Except as provided in this paragraph, whenever a defendant person whose trial counsel is appointed by the state public defender files a notice under par. (b) requesting public defender representation for purposes of postconviction or postdisposition relief, the district attorney prosecutor may, within 5 days after the notice is served and filed, file in the trial circuit court and serve upon the state public defender a request that the defendant's person's indigency be redetermined before counsel is appointed or transcripts are ordered requested. This paragraph does not apply to a child who is entitled to be represented by counsel under s. 48.23 or 938.23.

SB490, s. 27 Section 27. 809.30 (2) (e) of the statutes, as affected by Supreme Court Order 00-02, is amended to read:

SB490,11,17 809.30 (2) (e) State public defender appointment of counsel; transcript and circuit court case record request. Within 30 days after the state public defender appellate intake office receives the materials from the clerk of circuit court under par. (c), the state public defender shall appoint counsel for the defendant person and request a transcript of the reporter's notes and a copy of the circuit court case record, except that if the defendant's person's indigency must first be determined or redetermined the state public defender shall do so, appoint counsel, and request transcripts and a copy of the circuit court case record within 50 days after the state public defender appellate intake office receives the material from the clerk of circuit court under par. (c).

SB490, s. 28 Section 28. 809.30 (2) (f) of the statutes, as affected by Supreme Court Order 00-02, is amended to read:

SB490,12,3 809.30 (2) (f) Defendant Person not represented by public defender; transcript and circuit court case record request. A defendant person who does not request representation by the state public defender for purposes of postconviction or postdisposition relief shall request a transcript of the reporter's notes, and may request a copy of the circuit court case record, within 30 days after filing a notice under par. (b). A defendant person who is denied representation by the state public defender for purposes of postconviction or postdisposition relief shall request a transcript of the reporter's notes, and may request a copy of the circuit court case record, within 90 days after filing a notice under par. (b).

SB490, s. 29 Section 29. 809.30 (2) (fm) of the statutes, as affected by Supreme Court Order 00-02, is amended to read:

SB490,12,13 809.30 (2) (fm) Transcript or circuit court case record request in chs. 48 and 938 proceedings. A child who has filed a notice of intent to pursue relief from a judgment or order entered in a ch. 48 or 938 proceeding shall be furnished at no cost a transcript of the proceedings or as much of it as is requested, and may request a copy of the circuit court case record. To obtain the transcript or a copy of the circuit court case record at no cost, an affidavit must be filed stating that the person who is legally responsible for the child's care and support is financially unable or unwilling to purchase the transcript or copy of the circuit court case record.

SB490, s. 30 Section 30. 809.30 (2) (g) 1. of the statutes, as created by Supreme Court Order 00-02, is amended to read:

SB490,12,18 809.30 (2) (g) 1. The clerk of circuit court shall serve a copy of the circuit court case record on the defendant person within 60 days after receipt of the request for the circuit court case record.

SB490, s. 31 Section 31. 809.30 (2) (g) 2. of the statutes, as affected by Supreme Court Order 00-02, is amended to read:

SB490,13,2 809.30 (2) (g) 2. The court reporter shall file the transcript with the circuit court and serve a copy of the transcript on the defendant person within 60 days of the request for the transcript. Within 20 days of after the request for a transcript of postconviction or postdisposition proceedings brought under sub. (2) (h), the court reporter shall file the original with the circuit court and serve a copy of that transcript on the defendant person. The reporter may seek an extension under s. 809.11 (7) for filing and serving the transcript.

SB490, s. 32 Section 32. 809.30 (2) (h) of the statutes, as affected by Supreme Court Order 00-02, is amended to read:

SB490,13,13 809.30 (2) (h) Notice of appeal or; postconviction or postdisposition motion. The defendant person shall file in circuit court and serve on the district attorney prosecutor and every other party a notice of appeal or motion seeking postconviction or postdisposition relief within 60 days after the later of the service of the transcript or circuit court case record. A postconviction The person shall file a motion for postconviction or postdisposition relief before a notice of appeal is filed unless the grounds for seeking relief are sufficiency of the evidence or issues previously raised. A motion for postconviction or postdisposition relief under this section may not be accompanied by a notice of motion and is made when filed.

SB490, s. 33 Section 33. 809.30 (2) (hm) of the statutes is created to read:

SB490,13,16 809.30 (2) (hm) Notice of appeal requirements. The person filing a notice of appeal under this section shall conform to the requirements under s. 809.10.

SB490, s. 34 Section 34. 809.30 (2) (i) of the statutes, as affected by Supreme Court Order 00-02, is amended to read:

SB490,13,24 809.30 (2) (i) Order determining postconviction or postdisposition motion. Unless an extension is requested by the defendant a party or the circuit court and granted by the court of appeals, the circuit court shall determine by an order the defendant's person's motion for postconviction or postdisposition relief within 60 days after the filing of the motion or the motion is considered to be denied and the clerk of circuit court shall immediately enter an order denying the motion.

SB490, s. 35 Section 35. 809.30 (2) (j) of the statutes, as affected by Supreme Court Order 00-02, is amended to read:

SB490,14,10 809.30 (2) (j) Appeal from judgment and order. The defendant person shall file an in circuit court and serve upon the prosecutor and other parties a notice of appeal from the judgment of conviction and sentence or final adjudication and, if necessary, from the order of the trial circuit court on the motion for postconviction or postdisposition relief within 20 days of the entry of the order on the postconviction or postdisposition motion. Appeals in chs. 48, 51, 55, and 938 cases are subject to the docketing statement requirements of s. 809.10 (1) (d) and may be eligible for the expedited appeals program in the discretion of the court.

SB490, s. 36 Section 36. 809.30 (2) (k) of the statutes, as affected by Supreme Court Order 00-02, is amended to read:

SB490,14,17 809.30 (2) (k) Transmittal of record. Except as otherwise provided in s. ss. 809.14 (3) (b) and 809.15 (4) (b) and (c), the clerk of circuit court shall transmit the record on appeal to the court of appeals as soon as prepared but in no event more than 40 days after the filing of the notice of appeal by the defendant. Subsequent proceedings in the appeal are governed by the procedures for civil appeals.

SB490, s. 37 Section 37. 809.30 (3) of the statutes, as affected by Supreme Court Order 00-02, is amended to read:

SB490,15,2 809.30 (3) Appeals by state or other party; appointment of counsel. In a case in which the state of Wisconsin, the representative of the public, or any other party, or anyone else who may appeal under s. 51.13 (5), 51.20 (15), or 55.06 (18), appeals and the defendant or subject individual person who is the subject of the case or proceeding is a child or claims or appears to be indigent, the court shall refer the person who is the subject of the case or proceeding to the state public defender for the determination of indigency and the appointment of legal counsel under ch. 977.

SB490, s. 38 Section 38. 809.30 (4) of the statutes, as created by Supreme Court Order 00-02, is amended to read:

SB490,15,15 809.30 (4) Motion to withdraw as appointed counsel for defendant. (a) If the postconviction, postdisposition, or appellate counsel has been appointed for the defendant person under ch. 977 and seeks to withdraw as appointed counsel, from the case, that counsel shall serve a motion to withdraw upon the defendant person and upon the appellate division intake unit in the Madison appellate office of the state public defender. If the motion is filed before the notice of appeal is filed, the counsel shall file the motion shall be filed in the circuit court. If the motion is filed after a notice of appeal has been filed, the counsel shall file the motion shall be filed in the court of appeals. Counsel is not required to serve the motion to withdraw on the state public defender when the motion is filed by an assistant state public defender or when a no-merit report is filed with the motion.

SB490,15,19 (b) Within 20 days after receipt of the motion under par. (a), the state public defender shall determine whether successor counsel will be appointed for the defendant person and shall notify the court in which the motion was filed of the state public defender's determination.

SB490,15,22 (c) Before determining the motion to withdraw, the court shall consider the state public defender's response under par. (b) and whether the defendant person waives the right to counsel.

SB490,16,2 (d) When the motion to withdraw is filed in circuit court, appointed counsel shall prepare and serve a copy of the order determining counsel's motion to withdraw upon the defendant person and the appellate division intake unit in the Madison appellate office of the state public defender within 14 days after the court's determination.