SB490: Bill Text

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.

SB490, s. 39 Section 39. 809.32 (1) (a) of the statutes, as created by Supreme Court Order 00-02, is amended to read:

SB490,16,13 809.32 (1) (a) No-merit report. If an attorney appointed under s. 809.30 (2) (e) or ch. 977 concludes that a direct appeal on behalf of the defendant person would be frivolous and without any arguable merit within the meaning of Anders v. California, 386 U.S. 738 (1967), and the defendant person requests that a no-merit report be filed or declines to consent to have the attorney close the file without further representation by the attorney, the attorney shall file with the court of appeals 3 copies of a no-merit report. The no-merit report shall identify anything in the record that might arguably support the appeal and discuss the reasons why each identified issue lacks merit.

SB490, s. 40 Section 40. 809.32 (1) (b) 1. (intro.) of the statutes, as created by Supreme Court Order 00-02, is amended to read:

SB490,16,19 809.32 (1) (b) 1. (intro.) Prior to the filing of a no-merit report, the attorney shall discuss with the defendant person all potential issues identified by the attorney and the defendant person, and the merit of an appeal on these issues. The attorney shall inform the defendant person that the defendant he or she has 3 options:

SB490, s. 41 Section 41. 809.32 (1) (b) 1. c. of the statutes, as created by Supreme Court Order 00-02, is amended to read:

SB490,16,23 809.32 (1) (b) 1. c. To have the attorney close the file and to proceed without an attorney or with another attorney retained at the defendant's person's expense.

SB490, s. 42 Section 42. 809.32 (1) (b) 2. of the statutes, as created by Supreme Court Order 00-02, is amended to read:

SB490,17,15 809.32 (1) (b) 2. The attorney shall inform the defendant person that a no-merit report will be filed if the defendant person either requests a no-merit report or does not consent to have the attorney close the file without further representation by the attorney. The attorney shall inform the defendant person that if a no-merit report is filed the attorney will serve a copy of the transcripts and the circuit court case record upon the defendant person at the defendant's person's request. The attorney shall inform the defendant person that, if the defendant he or she chooses to proceed with an appeal or that if the defendant chooses to have the attorney close the file without an appeal, the attorney will forward the attorney's copies of the transcripts and circuit court case record to the defendant person at the defendant's person's request. The attorney shall also inform the defendant person that the defendant he or she may file a response to the no-merit report and that the attorney may file a supplemental no-merit report and affidavit or affidavits containing facts outside the record, possibly including confidential information, to rebut allegations made in the defendant's person's response to the no-merit report.

SB490, s. 43 Section 43. 809.32 (1) (c) (form) of the statutes, as created by Supreme Court Order 00-02, is amended to read:

SB490,17,18 809.32 (1) (c) (form)

SB490,17,19 CERTIFICATION BY ATTORNEY

SB490,18,10 I hereby certify that I have discussed with the defendant my client all potential issues identified by me and by the defendant my client and the merit of an appeal on these issues, and I have informed the defendant my client that the defendant he or she must choose one of the following 3 options: 1) to have me file a no-merit report; 2) to have me close the file without an appeal; or 3) to have me close the file and to proceed without an attorney or with another attorney retained at the defendant's his or her expense. I have informed the defendant my client that a no-merit report will be filed if the defendant he or she either requests a no-merit report or does not consent to have me close the file without further representation. I have informed the defendant my client that the transcripts and circuit court case record will be forwarded at the defendant's his or her request. I have also informed the defendant my client that the defendant he or she may file a response to the no-merit report and that I may file a supplemental no-merit report and affidavit or affidavits containing facts matters outside the record, possibly including confidential information, to rebut allegations made in the defendant's my client's response to the no-merit report.

SB490,18,11 Signed: ....

SB490,18,12 Signature: ....

SB490, s. 44 Section 44. 809.32 (1) (d) and (e) of the statutes, as affected by Supreme Court Order 00-02, are amended to read:

SB490,18,22 809.32 (1) (d) Service of copy of no-merit report, transcript, and circuit court case record. The attorney shall serve a copy of the no-merit report on the defendant person and shall file a statement in the court of appeals that service has been made upon the defendant person. The attorney shall also serve upon the defendant person a copy of the transcript and circuit court case record within 14 5 days after receipt of a request for the transcript and circuit court case record from the defendant person and shall file a statement in the court of appeals that service has been made upon the defendant person.

SB490,19,2 (e) Response to no-merit report. The defendant person may file a response to the no-merit report within 30 days after service of the no-merit report. If the defendant person files a response, the clerk shall, within 5 days after the filing of the response, send a copy of the response to the attorney who filed the no-merit report.

SB490, s. 45 Section 45. 809.32 (1) (f) and (g) of the statutes, as created by Supreme Court Order 00-02, are amended to read:

SB490,19,11 809.32 (1) (f) Supplemental no-merit report. If the attorney is aware of facts outside the record that rebut allegations made in the defendant's person's response, the attorney may file, within 30 days after receipt of the defendant's person's response, a supplemental no-merit report and an affidavit or affidavits, including facts matters outside the record. The supplemental report and affidavit or affidavits shall be served on the defendant person, and the attorney shall file a statement in the court of appeals that service has been made upon the defendant person.

SB490,19,17 (g) Remand for fact-finding prior to decision. If the defendant person and the attorney allege disputed facts regarding matters outside the record, and if the court determines that the defendant's person's version of the facts, if true, would make resolution of the appeal under sub. (3) inappropriate, the court shall remand the case to the circuit court for an evidentiary hearing and fact-finding on those disputed facts before proceeding to a decision under sub. (3).

SB490, s. 46 Section 46. 809.32 (2) of the statutes, as affected by Supreme Court Order 00-02, is amended to read:

SB490,20,6 809.32 (2) Notice of appeal, statement on transcript, service of copies. The attorney also shall file in circuit court a notice of appeal of the judgment of conviction or final adjudication and of any order denying a postconviction or postdisposition motion. The notice of appeal shall be identified as a no-merit notice of appeal and shall state the date on which the no-merit report is due and whether the due date is calculated under par. (a) or (b). The clerk of circuit court shall transmit the record in the case to the court pursuant to s. 809.15. The attorney also shall file a statement on transcript complying with the requirements of s. 809.11 (4), except that copies of the transcript need not be provided to other parties. All papers filed with the court under this subsection, except the transcript, shall be served on the state and every other party in accordance with s. 809.80 (2) (b). The no-merit report, notice of appeal, and statement on transcript must be filed within whichever of the following is later:

SB490,20,8 (a) One hundred eighty days after the service upon the defendant person of the transcript and circuit court case record requested under s. 809.30 (2) (e).

SB490,20,10 (b) Sixty days after the entry of the order determining a postconviction or postdisposition motion.

SB490, s. 47 Section 47. 809.32 (3) of the statutes, as affected by Supreme Court Order 00-02, is amended to read:

SB490,20,19 809.32 (3) Decision on no-merit report. In the event that the court of appeals finds determines that further appellate proceedings would be frivolous and without any arguable merit, the court of appeals shall affirm the judgment of conviction or final adjudication and the denial of any postconviction or postdisposition motion and relieve the attorney of further responsibility in the case. The attorney shall advise the defendant person of the right to file a petition for review to the supreme court under s. 809.62.

SB490, s. 48 Section 48. 809.32 (4) of the statutes, as affected by Supreme Court Order 00-02, is amended to read:

SB490,21,8 809.32 (4) No-merit petition for review. If a fully briefed appeal is taken to the court of appeals and the attorney is of the opinion that a petition for review in the supreme court under s. 809.62 would be frivolous and without any arguable merit, the attorney shall advise the defendant person of the reasons for this opinion and that the defendant person has the right to file a petition for review. If requested by the defendant person, the attorney shall file a petition satisfying the requirements of s. 809.62 (2) (d) and (f) and the defendant person shall file a supplemental petition satisfying the requirements of s. 809.62 (2) (a), (b), (c), and (e). The Except as provided in s. 808.10, the petition and supplemental petition shall both be filed within 30 days after the date of the decision or order of the court of appeals. An opposing party may file a response to the petition and supplemental petition within 14 days after the service of the supplemental petition.

SB490, s. 49 Section 49. Subchapter IV (title) of chapter 809 [precedes 809.40] of the statutes is amended to read:

SB490,21,11 CHAPTER 809

SB490,21,12 SUBCHAPTER IV

SB490,21,20 CHAPTERS 48, 51, 55 AND Appeal procedure in Court of appeals in Termination of parental rights, ch. 799, TRAFFIC REGULATION, MUNICIPAL ORDINANCE VIOLATION, AND MISDEMEANOR parental consent to abortion CASES APPEAl PROCEDURE IN COURT OF APPEALS

SB490, s. 50 Section 50. 809.40 (title) of the statutes is amended to read:

SB490,21,24 809.40 (title) Rule (Applicability Appeals in termination of parental rights, ch. 799, traffic regulation, municipal ordinance violation, and parental consent to abortion cases).