Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 92 Wis. 2d xiii (1979); Sup. Ct. Order, 104 Wis. 2d xi (1981); 1981 c. 390
; Sup. Ct. Order, 112 Wis. 2d xvii (1985); Sup. Ct. Order, 123 Wis. 2d xi (1985); 1985 a. 332
; Sup Ct. Order, 136 Wis. 2d xxv (1987); Sup. Ct. Order, 161 Wis. 2d xiii (1991); Sup. Ct. Order No. 93-19
, 179 Wis. 2d xxiii (1994); 1993 a. 16
; 1995 a. 77
; Sup. Ct. Order No. 00-02
, 2001 WI 39, 242 Wis. 2d xxvii; 2001 a. 16
; Sup. Ct. Order No. 02-01
, 2002 WI 120, 255 Wis. 2d xiii; 2005 a. 264
; 2007 a. 20
; Sup. Ct. Order No. 04-08
, 2008 WI 108, filed 7-30-08, eff. 1-1-09; 2009 a. 26
; 2011 a. 38
Judicial Council Committee's Note, 1978:
Many changes are made in prior practice in criminal cases and in protective placement, juvenile and mental commitment cases. Under the former procedure counsel, usually the State Public Defender appointed by the Supreme Court, was required to order a transcript, wait for its preparation, review it, present to the trial court by a post-trial motion any issues which the defendant desired to raise on appeal even if the issue had been presented to and decided by the court during the trial, [see State v. Charette, 51 Wis. 2d 531
, 187 N.W.2d 203
(1971) and State v. Wuensch, 69 Wis. 2d 467
, 230 N.W.2d 665
(1975)], and after the court ruled on the motion, appeal both the original conviction and the denial of the post-trial motion to the Supreme Court. Often a year or more elapsed between the sentencing of the defendant and the docketing of his appeal in the Supreme Court. This delay, combined with the delay in the Supreme Court caused by its backlog, often resulted in an appeal not being decided by the Supreme Court until two or three years after conviction.
The procedures in this section are designed to expedite the entire process by putting time limits on each step and by eliminating the necessity of each issue being presented twice to the trial court.
The term "postconviction relief", as used in this Rule, includes new trial, reduction of sentence and any other type of relief which the trial court is authorized to give, other than under s. 974.06.
Extensions of time for taking various steps under this section can be granted by the court of appeals under Rule 809.82. [Re Order effective July 1, 1978]
Judicial Council Committee's Note, 1979: Sub. (1) (h) is amended to increase from 10 to 20 days the period for a defendant to file a notice of appeal after entry of a trial court's order denying postconviction relief. It is sometimes difficult to meet the present 10-day requirement for filing an appeal under this subsection due to the delays that may occur in the prompt delivery by mail of the order of the trial court on a motion for postconviction relief. Increasing the time period by 10 days does not unduly lengthen the appellate process for determination of an appeal on its merits. [Re Order effective Jan. 1, 1980]
Judicial Council Committee's Note, 1981: Sub. (1) (e) is amended to increase from 40 to 60 days the period for the court reporter to complete and serve a copy of the transcript on the defendant and sub. (1) (f) is amended to increase from 30 to 60 days the period for the defendant to either file a notice of appeal or motion seeking postconviction relief. The previous time periods were often insufficient for preparation of the transcript and for review of the transcript and record by the defendant determining which, if any, postconviction proceedings to commence.
Sub. (1) (e) is clarified to establish that the original of the transcript is filed with the trial court by the court reporter whereas a copy is served by the court reporter on the defendant. Also, the transcript of postconviction proceedings must be filed and served by the court reporter within 20 days of ordering by the defendant.
Sub. (1) (i) is amended to provide that the clerk of the trial court shall transmit the record to the court of appeals no later than 40 days after the filing of the notice of appeal. Presently transmittal of the record is governed by Rule 809.15 (4) which allows up to 90 days from the filing of the notice of appeal.
The total time period from ordering the transcript to transmittal of the record to the court of appeals has not been altered by these amendments.
Judicial Council Committee's Note, 1978, explained that extensions of time for taking various steps under Rule 809.30 can be granted by the court of appeals under Rule 809.82. In State v. Rembert, 99 Wis. 2d 401
, 299 N.W.2d 292
(Ct. App. 1980), the court of appeals stated that its authority to extend the time periods of Rule 809.30 is to the exclusion of the trial court. The court of appeals, not the trial court, is responsible for monitoring, enforcing or extending the time periods of Rule 809.30. [Re Order effective Jan. 1, 1982]
Judicial Council Note, 1984: Requiring that the appellate process be initiated by filing a notice in the trial court within 20 days after sentencing is intended to:
Expedite the process; the information needed for a decision regarding postconviction relief is available to the defendant at sentencing and the decision can usually be made shortly thereafter.
Emphasize trial counsel's duties to counsel the defendant about the decision to seek postconviction relief and to continue representation until appellate counsel is retained or appointed. SCR 20.34
(2) (d); Whitmore v. State, 56 Wis. 2d 706
, 203 N.W.2d 56
Create a record in the trial court showing whether the postconviction process has been timely invoked.
Notify the judge, clerk, court reporter and district attorney that postconviction relief is contemplated and allow the district attorney to request a redetermination of indigency in public defender cases.
Give the public defender the information needed to appoint counsel and order transcripts promptly, and to decide whether the defendant's indigency must first be determined or redetermined. [Re order effective July 1, 1985]
Judicial Council Note, 1986: Sub. (1) is amended to clarify the application of the statute when the appeal is taken from the final judgment or order in a non-criminal case.
Sub. (2) (fm) is prior s. 48.47 (2), renumbered for more logical placement in the statutes. [Re Order eff. 7-1-87]
Judicial Council Note, 2001: Subtitles have been added. Subsection (2) (e) was revised to amend the time for appointing appellate counsel and to clarify that a defendant represented by appointed counsel must request a copy of the circuit court case record from the circuit court. Subsection (2) (f) was amended to clarify that a defendant not represented by the state public defender may request a copy of the circuit court case record from the circuit court. The second sentence of sub. (2) (f) sets a time limit for a defendant who has unsuccessfully sought public defender representation under sub. (2) (e) to request the transcripts and circuit court case record. Subsection (2) (g) was amended to require the circuit court clerk to send the circuit court case record to the defendant within 60 days after receipt of the request. Subsection (2) (h) was revised to require the defendant to file the notice of appeal either within 60 days after service of the last transcript or the circuit court case record, whichever occurs later. The second sentence of sub. (2) (h) specifies that a notice of motion shall not be filed with a s. 809.30 postconviction motion. If the circuit court grants a hearing on the motion, the circuit court will notify the parties of the date.
The first clause of sub. (2) (i) specifies that an extension may be granted by the court of appeals.
Subsection (3) was revised to clarify that it applies in all appeals utilizing s. 809.30, including cases under chs. 48, 51, 55, and 938.
Subsection (4) establishes a procedure for making and determining motions to withdraw by appointed counsel. This rule does not change existing law concerning when a withdrawal motion is necessary. See e.g. State ex rel. Flores v. State
, 183 Wis. 2d 587
, 622-24, 516 N.W.2d 362
Often motions to withdraw are the result of a disagreement between appointed counsel and the defendant, sometimes inaccurately called a "conflict," about the existence of a meritorious issue for appeal, or about the manner in which any such issue should be raised. It is counsel's duty to decide what issues in a case have merit for an appeal. Jones v. Barnes
, 463 U.S. 745
(1983). Postconviction counsel is entitled to exercise reasonable professional judgment in winnowing out even arguable issues in favor of others perceived to be stronger. Id.
Counsel's failure to raise an issue on direct appeal may prevent the defendant from raising it in a subsequent s. 974.06 collateral review proceeding, absent "sufficient reason." State v. Escalona-Naranjo
, 185 Wis. 2d 168
, 517 N.W.2d 157
The rules of appellate procedure require that a defendant choose whether to proceed with the assistance of appointed counsel or proceed pro se. State v. Redmond
, 203 Wis. 2d 13
, 552 N.W.2d 115
(Ct. App. 1996). A defendant has neither the right to appointed counsel of choice nor the right to insist that a particular issue be raised. Oimen v. McCaughtry
, 130 F.2d 809
(7th Cir. 1997). "The defendant may terminate appellate counsel's representation and proceed pro se
or the defendant may allow postconviction relief to continue based on counsel's brief and then seek relief on the grounds of ineffective assistance of appellate counsel." State v. Debra A.E.
, 188 Wis. 2d 111
, 137-39, 523 N.W.2d 727
(1994). On ineffective assistance of appellate counsel claims, the court will determine whether counsel's choice of issues met the objective standard of reasonableness. Gray v. Greer, 778 F.2d 350
(7th Cir. 1985).
The state public defender will not appoint successor counsel where a defendant disagrees with the legal conclusions of appointed counsel or when a defendant wants a second opinion as to the merits of an appeal. To do so would unduly delay the disposition of the appeal, and would be contrary to the interests of justice. Wis. Admin. Code s. PD 2.04.
If a defendant elects to waive counsel and proceed pro se
, the court must find that the defendant has been provided with clear warnings with respect to forfeiture of the right to counsel and the dangers of self-representation. State v. Cummings, 199 Wis. 2d 721
, 546 N.W.2d 406
(1996). [Re Order No. 00-02 effective July 1, 2001]
Judicial Council Note, 2002: The terminology throughout s. 809.30 is amended to clarify that persons seeking to appeal final judgments or orders in criminal, ch. 48 (child or unborn child in need of protection or services, guardianship or adoption), ch. 51 (civil commitment), ch. 55 (protective placement), and ch. 938 (delinquency or juvenile justice) cases must comply with this rule. Prior language referred to all such persons as defendants and to all appeal proceedings as "postconviction," and was confusing to parties and practitioners.
Amended sub. (2) (h) provides a cross-reference to the statutory section governing the requirements of a notice of appeal. The requirement of a motion for postconviction or postdisposition relief on grounds other than sufficiency of the evidence or issues previously raised is consistent with s. 974.02 (2).
Prior to 2001 WI 39
, effective 7/1/01, this rule did not specify who could request an extension of time for a circuit court to decide a postconviction motion. Sub. (2) (i) is amended to permit the circuit court, the state, the defendant, or any other party to request an extension of time for the circuit court to decide a postconviction or postdisposition motion.
Subsection (2) (j) is amended for clarification and consistency, and to cross-reference s. 809.10, which contains the requirements governing a notice of appeal. In a criminal case, the prosecutor who represented the state in the circuit court should be served with a copy of the notice of appeal.
The amendment to sub. (4) (a) clarifies that the rule requiring service on the state public defender appellate division is applicable only to postconviction, postdisposition, and appellate appointments. Rule 809.30 (4), 2001 WI 39
, effective 7/1/01, is designed to assure that courts acting on motions to withdraw have knowledge of the state public defender's position with respect to appointing successor counsel. Subsection (4) (a) is amended to reflect that withdrawal motions filed by state public defender staff attorneys already contain that information and that the issue of appointment of successor counsel is irrelevant to the court's determination when a no-merit report is filed. [Re Order No. 02-01 effective January 1, 2003]
Sup. Ct. Order No. 04-08
, 2008 WI 108
, states, "The Judicial Council Committee Comments are not adopted, but will be published and may be consulted for guidance in interpreting and applying Wis. Stat. ss. 809.30, 809.32 and 809.62."
Judicial Council Committee Comment, July 2008: The amendment to s. 809.30 (2) (b) allows a notice of intent that is filed too early to be deemed filed on the date that a judgment and sentence or other final adjudication is filed. This is consistent with the procedure applicable to civil appeals under s. 808.04 (8). [Re Order No. 08-04 effective January 1, 2009]
The court of appeals did not abuse its discretion in refusing to allow a convicted felon to pursue a late appeal. State v. Argiz, 101 Wis. 2d 546
, 305 N.W.2d 124
The limitation period under sub. (1) (f) [now sub. (2) (h)] cannot begin to run until the entry of an appealable order. In Interest of M. T. 108 Wis. 2d 410
, 321 N.W.2d 289
For issues on appeal to be considered matters of right, postconviction motions must be made except in challenges to sufficiency of the evidence under s. 974.02 (2). State v. Monje, 109 Wis. 2d 138
, 325 N.W.2d 695
Because double jeopardy precludes retrial if an appellate court finds a conviction is not supported by sufficient evidence, the court must decide a claim of insufficiency even if there are other grounds for reversal that would not preclude retrial. State v. Ivy, 119 Wis. 2d 591
, 350 N.W.2d 622
A defendant unable to assist counsel or make decisions committed by law to the defendant with a degree of rational reasoning is incompetent to pursue postconviction relief. The process to be followed when a competency issue arises is discussed. State v. Debra A. E. 188 Wis. 2d 111
, 523 N.W.2d 727
(Ct. App. 1994).
If a defendant is represented by counsel, the defendant is statutorily barred from proceeding pro se during the pendency of an appeal. State v. Redmond, 203 Wis. 2d 13
, 552 N.W.2d 115
(Ct. App. 1996), 94-1544
A criminal defendant may bring a motion under sub. (2) (h) for a new trial based on newly-discovered evidence. The defendant has the burden of establishing the 5 criteria enumerated by the court by clear and convincing evidence. State v. Brunton, 203 Wis. 2d 195
, 552 N.W.2d 452
(Ct. App. 1996), 95-0111
When a criminal appeal is taken from a plea bargain, it brings the entire judgment before the appellate court. When a plea bargain is negated, the proper disposition is to remand the cause for further proceedings on the original charges. State v. Briggs, 218 Wis. 2d 61
, 579 N.W.2d 783
(Ct. App. 1998), 97-1558
A defendant subject to a post-probation revocation sentence cannot use this section and s. 973.19 (1) (b) to raise issues that go the original judgment, but the defendant may take a direct appeal from a subsequent judgment in order to fully litigate issues initially raised by the resentencing. State v. Scaccio, 2000 WI App 265
, 240 Wis. 2d 95
, 622 N.W.2d 449
Section 973.195 creates a separate and specific statutory procedure for requesting a sentence reduction that should be used in place of this section whenever the basis for the modification is a change in law or procedure related to sentencing effective after the inmate was sentenced that would have resulted in a shorter term of a confinement. State v. Torres, 2003 WI App 199
, 267 Wis. 2d 213
, 670 N.W.2d 400
Neither sub. (4) or other law requires that a motion to withdraw be filed any time an attorney appointed by the public defender terminates his or her postconviction/appellate representation of a defendant. Counsel for the defendant did not render ineffective assistance by closing his file without first obtaining court permission to withdraw or otherwise seeking a contemporaneous judicial determination that his client had knowingly waived either the right to appeal or the right to counsel. Ford v. Holm, 2004 WI App 22
, 269 Wis. 2d 810
, 676 N.W.2d 500
When a defendant seeks modification of the sentence imposed at resentencing, sub. (2) and s. 973.19 require the defendant to file a postconviction motion with the circuit court before taking an appeal. These rules on sentence modification apply even though the sentence imposed at resentencing is identical to a previous sentence and regardless of whether a defendant challenges the original sentence, a sentence after revocation, or the sentence imposed at resentencing. State v. Walker, 2006 WI 82
, 292 Wis. 2d 326
, 716 N.W.2d 498
If a defendant does not want a no-merit report, the defendant has 3 choices: 1) fire counsel and proceed pro se; 2) fire counsel and hire private counsel if financially feasible; or 3) direct that the file be closed. A defendant cannot: 1) insist that appointed counsel pursue an advocacy appeal under s. 809.30 despite counsel's view that an appeal would lack arguable merit; 2) alternatively insist on different appointed counsel who will write a brief the way the defendant wants it written; or 3) forbid appointed counsel from filing a no-merit report and then claim that counsel has abandoned him or her when counsel moves to withdraw from representation. Van Hout v. Endicott, 2006 WI App 196
, 296 Wis. 2d 580
, 724 N.W. 2d 692
Wisconsin affords a convicted person the right to postconviction counsel. It would be absurd to suggest that a person has a right to counsel at trial and on appeal, but no right to counsel at a postconviction proceeding in the circuit court, which is often the precursor to an appeal. However, a defendant does not have the right to be represented by: 1) an attorney he or she cannot afford; 2) an attorney who is not willing to represent the defendant; 3) an attorney with a conflict of interest; or 4) an advocate who is not a member of the bar. State v. Peterson, 2008 WI App 140
, 314 Wis. 2d 192
, 757 N.W.2d 834
Section 971.14 (4) governs competency decisions only through the sentencing stage of a criminal trial, but no statute addresses how to determine a defendant's postconviction competency. Under Cooper v. Oklahoma
, 517 U.S. 348
, it is proper to place the burden of proof upon the defendant, but it is improper to impose the "clear and convincing" standard rather than the lower "more likely than not" standard. State v. Daniel, 2014 WI App 46
, ___ Wis. 2d ___, ___ N.W.2d ___, 12-2692
The decision to appeal. Kempinen, WBB August, 1985.
Sentence modification by Wisconsin trial courts. Kassel. 1985 WLR 195.
The decision to appeal a criminal conviction: Bridging the gap between the obligations of trial and appellate counsel. 1986 WLR 399.
Rule (Release on bond pending seeking postconviction relief). 809.31(1)(1)
A defendant convicted of a misdemeanor or felony who is seeking relief from a conviction and sentence of imprisonment or to the intensive sanctions program and who seeks release on bond pending a determination of a motion or appeal shall file in the trial court a motion seeking release.
The trial court shall promptly hold a hearing on the motion of the defendant, determine the motion by order and state the grounds for the order.
Release may be granted if the court finds that:
There is no substantial risk the appellant will not appear to answer the judgment following the conclusion of postconviction proceedings;
The defendant is not likely to commit a serious crime, intimidate witnesses, or otherwise interfere with the administration of justice;
The defendant will promptly prosecute postconviction proceedings; and
The postconviction proceedings are not taken for purposes of delay.
In making the determination on the motion, the court shall take into consideration the nature of the crime, the length of sentence and other factors relevant to pretrial release.
The defendant or the state may seek review of the order of the circuit court by filing a motion in the court of appeals under s. 809.14
. The party seeking review must attach to its motion a copy of the judgment of conviction or other final judgment or order, the circuit court order regarding release pending appeal, the circuit court statement of reasons for the decision regarding release pending appeal, and the transcript of any release proceedings in the circuit court or a statement explaining why no transcript is available. The party filing the motion shall request a transcript of the reporter's notes for any proceeding in the circuit court regarding release pending appeal for all parties to the appeal and make arrangements to pay for the transcript within 7 days after the entry of the circuit court order regarding release pending appeal. Within 7 days after the date on which the transcript was requested and arrangements were made for payment, the reporter shall serve copies of the transcript on the parties to the appeal, file the transcript with the circuit court, and notify the clerk of the court of appeals and the parties to the appeal that the transcript has been filed and served. The motion shall be filed within 21 days after the entry of the circuit court order. The opposing party may file a response within 14 days after the filing of the motion.
The court ordering release shall require the defendant to post a bond in accordance with s. 969.09
and may impose other terms and conditions. The defendant shall file the bond in the trial court.
Sup. Ct. Order, 83 Wis. 2d xiii (1978); 1981 c. 390
; 1991 a. 39
; 1997 a. 232
; Sup. Ct. Order No. 00-02
, 2001 WI 39, 242 Wis. 2d xxvii; Sup. Ct. Order No. 02-01
, 2002 WI 120, 255 Wis. 2d xiii.
Judicial Council Committee's Note, 1978: Section 969.09 provides for release on bond pending appeal and the conditions of the bond. Section 969.01 (2) provides for bond in felony cases after conviction in the discretion of the trial court or by the Supreme Court or a justice thereof or the Court of Appeals or a judge thereof. Neither the statutes nor case law, however, establishes the standards for release or indicates whether the Supreme Court or Court of Appeals is reviewing the action of the trial court or acting de novo. This Rule is intended to meet these deficiencies. The standards for release are those included in the American Bar Association Criminal Justice Standards, Criminal Appeals, s. 2.5. [Re Order effective July 1, 1978]
Judicial Council Note, 2001:
Former rules required a party seeking review of a release decision to file a petition for discretionary review, and pay a separate filing fee, generating a separate appeal. The new motion procedure under sub (5) provides a more efficient mechanism for appellants seeking release pending appeal. No change in the substantive standards governing release decisions is intended. See State v. Whitty, 86 Wis. 2d 380
, 272 N.W.2d 843
(1978); State v. Salmon, 163 Wis. 2d 369
, 471 N.W.2d 286
(Ct. App. 1991). [Re Order No. 00-02 effective July 1, 2001]
Judicial Council Note, 2002: Subsection (5) is amended to establish time limits within which a party must request a transcript of the reporter's notes of any circuit court proceeding concerning release pending postconviction relief or appeal, and within which the reporter must file and serve the transcript, and to require the party seeking relief from the circuit court order to request, and make arrangements to pay for, a copy of the transcript for all parties. The amendment also enlarges the time within which a party must file a motion in the court of appeals to allow time to review the transcript before deciding to file a motion. [Re Order No. 02-01 effective January 1, 2003]
Appellate procedure for a petition for bail pending appeal is discussed. State v. Whitty, 86 Wis. 2d 380
, 272 N.W.2d 842
The power of a circuit court to stay execution of a sentence for legal cause does not include the power to stay sentence while a collateral attack is being made on a conviction by habeas corpus proceeding in federal court. This rule has no application to that situation. State v. Shumate, 107 Wis. 2d 460
, 319 N.W.2d 834
The merits of the underlying appeal may be considered by the trial court in considering release pending appeal and by the appellate court in determining whether immediate review of the order denying release pending appeal is necessary. State v. Salmon, 163 Wis. 2d 369
, 471 N.W.2d 286
(Ct. App. 1991).
Rule (No merit reports). 809.32(1)
No-merit report, response, and supplemental no-merit report. 809.32(1)(a)(a)
If an attorney appointed under s. 809.30 (2) (e)
or ch. 977
concludes that a direct appeal on behalf of the person would be frivolous and without any arguable merit within the meaning of Anders v. California
, 386 U.S. 738
(1967), and the 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.
Prior to the filing of a no-merit report, the attorney shall discuss with the person all potential issues identified by the attorney and the person, and the merit of an appeal on these issues. The attorney shall inform the person that he or she has 3 options:
To have the attorney close the file and to proceed without an attorney or with another attorney retained at the person's expense.
The attorney shall inform the person that a no-merit report will be filed if the 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 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 person at the person's request. The attorney shall inform the person that, if the person chooses to proceed with an appeal or 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 person at the person's request. The attorney shall also inform the person that the person 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 person's response to the no-merit report.
(c) Certification by attorney.
The attorney shall append to the no-merit report a signed certification that the attorney has complied with the client-counseling and client-notification requirements of par. (b)
. The certification shall be in the following form:
CERTIFICATION BY ATTORNEY
I hereby certify that I have discussed with my client all potential issues identified by me and by my client and the merit of an appeal on these issues, and I have informed my client that he/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 my client's expense. I have informed my client that a no-merit report will be filed if he/she either requests a no-merit report or does not consent to have me close the file without further representation. I have informed my client that the transcripts and circuit court case record will be forwarded at his/her request. I have also informed my client that he/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 matters outside the record, possibly including confidential information, to rebut allegations made in my client's response to the no-merit report.
(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 person and shall file a statement in the court of appeals that service has been made upon the person. The attorney shall also serve upon the person a copy of the transcript and circuit court case record within 5 days after receipt of a request for the transcript and circuit court case record from the person and shall file a statement in the court of appeals that service has been made on the person.
(e) Response to no-merit report.
The person may file a response to the no-merit report within 30 days after service of the no-merit report. If the 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.
(f) Supplemental no-merit report.
If the attorney is aware of facts outside the record that rebut allegations made in the person's response, the attorney may file, within 30 days after receipt of the person's response, a supplemental no-merit report and an affidavit or affidavits, including matters outside the record. The supplemental report and affidavit or affidavits shall be served on the person, and the attorney shall file a statement in the court of appeals that service has been made upon the person.
(fm) Electronic no-merit report and supplemental no-merit report.
An attorney filing a no-merit report or the optional supplemental no-merit report under this rule shall file with the court a copy of the no-merit report and supplemental no-merit report, if any, in electronic form, using the procedure under s. 809.19 (12)
. The date on which the paper no-merit report or supplemental no-merit report is filed
shall be the official date of filing of the no-merit report or supplemental no-merit report. The electronic copy of the no-merit report and supplemental no-merit report shall be electronically transmitted on or before the date that the paper no-merit report and supplemental no-merit report is filed. An electronic copy of a no-merit report or supplemental no-merit report submitted to the electronic filing system before the close of regular business hours shall be considered transmitted on that date. An electronic no-merit report or supplemental no-merit report submitted after the close of regular business hours shall be considered transmitted the next business day. The attorney shall certify that the text of the electronic copy of the report is identical to the text of the paper copy of the report. Notwithstanding s. 801.17 (9)
, the paper copy of the no-merit report or supplemental no-merit report remains the official court record. An attorney who lacks technological capability to comply with this subsection may file a motion under s. 809.14
for relief from the electronic filing requirements at the time the attorney files the paper no-merit report or supplemental no-merit report. An attorney shall show good cause why it is not feasible to file a copy of the report electronically.