Wisconsin Legislature: LRBb1302/1

812.

Page 2233, line 24: delete that line.

813.

Page 2234, line 1: delete lines 1 to 24 and substitute:

"SECTION 7257j. 973.09 (1) (a) of the statutes is amended to read:

973.09 (1) (a) Except as provided in par. (c) or s. 939.615 (2m) or if probation is prohibited for a particular offense by statute, if a person is convicted of a crime, the court, by order, may withhold sentence or impose sentence under s. 973.15 and stay its execution, and in either case place the person on probation to the department for a stated period, stating in the order the reasons therefor. The court may impose any conditions which appear to be reasonable and appropriate. The period of probation may be made consecutive to a sentence on a different charge, whether imposed at the same time or previously. If the court imposes an increased term of probation, as authorized under sub. (2) (a) 2. or (b) 2., it shall place its reasons for doing so on the record.

SECTION 7257k. 973.095 of the statutes is created to read:

973.095 Community supervision. (1) If a person is convicted of a misdemeanor to which s. 939.615 (1) applies, a court may impose sentence, impose sentence and stay its execution or withhold sentence and, in any case, may place the person on community supervision to the department for a stated period not exceeding one year. A person placed on community supervision under this subsection shall be monitored by a probation and parole agent of the department.

(2) A court may impose one or more of the following conditions when placing a person on community supervision under sub. (1):

(a) Payment of any fine and any assessments, surcharges, costs or fees imposed.

(b) Community service, as provided under sub. (3).

(d) Alcohol and other drug abuse counseling, as provided under sub. (6).

(3) (a) The court may require as a condition of community supervision that the person placed on community supervision perform community service work for a public agency or a nonprofit charitable organization. The number of hours of work required may not exceed what would be reasonable considering the seriousness of the offense. An order may only apply if agreed to by the person placed on community supervision and the organization or agency. The court shall ensure that the person placed on community supervision is provided a written statement of the terms of the community service order and that the community service order is monitored by the department.

(4) (a) If the court does not order community supervision under sub. (3), the department may order that a person placed on community supervision perform community service work for a public agency or a nonprofit charitable organization. An order may apply only if agreed to by the person placed on community supervision and the organization or agency. The department shall ensure that the person placed on community supervision is provided a written statement of the terms of the community service order and shall monitor the person's compliance with the community service order.

(b) Any organization or agency acting in good faith to which a person placed on community supervision is assigned under an order under this subsection has immunity from any civil liability in excess of $25,000 for acts or omissions by or impacting on the person placed on community supervision. The department has immunity from any civil liability for acts or omissions by or impacting on the person placed on community supervision regarding the assignment under this subsection.

(5) (a) If the court places the person on community supervision, the court shall order the person to pay restitution under s. 973.20 unless the court finds there is substantial reason not to order restitution as a condition of community supervision. If the court does not require restitution to be paid to a victim, the court shall state its reason on the record. If the court does require restitution, it shall notify the department of justice of its decision if the victim may be eligible for compensation under ch. 949.

(b) The department shall notify the sentencing court, any person to whom unpaid restitution is owed and the district attorney of the status of the ordered payments unpaid at least 90 days before the community supervision expiration date. If payment as ordered has not been made, the court shall issue a judgment for the unpaid restitution and direct the clerk to file and docket a transcript of the judgment, without fee, unless it finds that the victim has already recovered a judgment against the person placed on community supervision for the damages covered by the restitution order. If the court issues a judgment for the unpaid restitution, the court shall send to the person placed on community supervision and the victim at his or her last-known address written notification that a civil judgment has been issued for the unpaid restitution. The judgment has the same force and effect as judgments docketed under s. 806.10.

(6) The court may order a person placed on community supervision to submit to and comply with an assessment by a treatment facility approved by the court for examination of the person's use of alcohol or other drugs and, if necessary, development of an alcohol or other drug abuse treatment plan for the person. The court may require the person placed on community supervision to pay the reasonable costs of an assessment and treatment ordered under this subsection.

(7) If the court has not ordered an assessment and treatment under sub. (6), the department may order a person placed on community supervision to submit to and comply with an assessment by a treatment facility approved by the department for examination of the person's use of alcohol or other drugs and, if necessary, development of an alcohol or other drug abuse treatment plan for the person. The department may require the person placed on community supervision to pay the reasonable costs of an assessment and treatment ordered under this subsection.

(8) When the person placed on community supervision has satisfied the conditions of his or her community supervision, the person placed on community supervision shall be discharged and the department shall issue the person a certificate of final discharge, a copy of which shall be filed with the clerk.

(9) A person who violates or fails to comply with community supervision ordered under sub. (1) may be proceeded against for contempt of court under ch. 785, except that a court may impose only the remedial sanctions specified in s. 785.04 (1) against that person.".

814.

Page 2235, line 17: after that line insert:

"SECTION 7263bd. 973.20 (1) of the statutes is amended to read:

973.20 (1) When imposing sentence or ordering probation or community supervision for any crime, the court, in addition to any other penalty authorized by law, shall order the defendant to make full or partial restitution under this section to any victim of the crime or, if the victim is deceased, to his or her estate, unless the court finds substantial reason not to do so and states the reason on the record. Restitution ordered under this section is a condition of probation, community supervision or parole served by the defendant for the crime. After the termination of probation, community supervision or parole, or if the defendant is not placed on probation, community supervision or parole, restitution ordered under this section is enforceable in the same manner as a judgment in a civil action by the victim named in the order to receive restitution or enforced under ch. 785.

SECTION 7263be. 973.20 (10) of the statutes is amended to read:

973.20 (10) The court may require that restitution be paid immediately, within a specified period or in specified instalments. If the defendant is placed on probation or community supervision or sentenced to imprisonment, the end of a specified period shall not be later than the end of any period of probation, community supervision or parole. If the defendant is sentenced to the intensive sanctions program, the end of a specified period shall not be later than the end of the sentence under s. 973.032 (3) (a).

SECTION 7263bf. 973.20 (11) (a) of the statutes is amended to read:

973.20 (11) (a) Except as otherwise provided in this paragraph, the restitution order shall require the defendant to deliver the amount of money or property due as restitution to the department for transfer to the victim or other person to be compensated by a restitution order under this section. If the defendant is not placed on probation or community supervision or sentenced to prison, the court may order that restitution be paid to the clerk of court for transfer to the appropriate person. The court shall require the defendant to pay a surcharge equal to 5% of the total amount of any restitution, costs and attorney fees and any fines and related payments ordered under s. 973.05 (1) to the department or clerk of court for administrative expenses under this section.

SECTION 7263bg. 973.20 (13) (c) (intro.) of the statutes is amended to read:

973.20 (13) (c) (intro.) The court, before imposing sentence or ordering probation or community supervision, shall inquire of the district attorney regarding the amount of restitution, if any, that the victim claims. The court shall give the defendant the opportunity to stipulate to the restitution claimed by the victim and to present evidence and arguments on the factors specified in par. (a). If the defendant stipulates to the restitution claimed by the victim or if any restitution dispute can be fairly heard at the sentencing proceeding, the court shall determine the amount of restitution before imposing sentence or ordering probation or community supervision. In other cases, the court may do any of the following:

SECTION 7263bh. 973.20 (13) (c) 1. of the statutes is amended to read:

973.20 (13) (c) 1. Order restitution of amounts not in dispute as part of the sentence or probation or community supervision order imposed and direct the appropriate agency to file a proposed restitution order with the court within 90 days thereafter, and mail or deliver copies of the proposed order to the victim, district attorney, defendant and defense counsel.

SECTION 7263bi. 973.20 (13) (c) 3. of the statutes is amended to read:

973.20 (13) (c) 3. With the consent of the defendant, refer the disputed restitution issues to an arbitrator acceptable to all parties, whose determination of the amount of restitution shall be filed with the court within 60 days after the date of referral and incorporated into the court's sentence or probation or community supervision order.

SECTION 7263bj. 973.20 (13) (c) 4. of the statutes is amended to read:

973.20 (13) (c) 4. Refer the disputed restitution issues to a court commissioner or other appropriate referee, who shall conduct a hearing on the matter and submit the record thereof, together with proposed findings of fact and conclusions of law, to the court within 60 days of the date of referral. Within 30 days after the referee's report is filed, the court shall determine the amount of restitution on the basis of the record submitted by the referee and incorporate it into the sentence or probation or community supervision order imposed. The judge may direct that hearings under this subdivision be recorded either by audio recorder or by a court reporter. A transcript is not required unless ordered by the judge.

SECTION 7263bk. 974.05 (1) (c) of the statutes is amended to read:

974.05 (1) (c) Judgment and sentence or order of probation or community supervision not authorized by law.

SECTION 7263bL. 974.06 (1) of the statutes is amended to read:

974.06 (1) After the time for appeal or postconviction remedy provided in s. 974.02 has expired, a prisoner in custody under sentence of a court or a person convicted and placed on community supervision under s. 973.095 or placed with a volunteers in probation program under s. 973.11 claiming the right to be released upon the ground that the sentence was imposed in violation of the U.S. constitution or the constitution or laws of this state, that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.".

815.

Page 2235, line 18: delete lines 18 to 20 and substitute:

"SECTION 7263e. 977.02 (4m) of the statutes is created to read:

977.02 (4m) Promulgate rules for payments to the state public defender under s. 977.075.

SECTION 7263f. 977.02 (4r) of the statutes is created to read:

977.02 (4r) Promulgate rules that establish procedures to provide the department of administration with any information concerning the collection of payment ordered under s. 48.275 (2), 757.66, 973.06 (1) (e) or 977.076 (1).".

816.

Page 2236, line 6: after that line insert:

"SECTION 7263k. 977.03 (2m) of the statutes is created to read:

977.03 (2m) The board may promulgate rules that establish procedures to collect payment ordered under s. 48.275 (2), 757.66, 973.06 (1) (e) or 977.076 (1) from a prisoner's prison financial account.".

817.

Page 2239, line 13: after "977.06" insert "(title) and (1)".

818.

Page 2239, line 13: substitute "are" for "is".

819.

Page 2239, line 14: after "977.06" insert "(title)".

820.

Page 2239, line 17: delete lines 17 and 18 and substitute:

"(a) Verify the information necessary to determine indigency under s. 977.07 (2). The information provided by a person seeking assigned counsel that is subject to verification shall include the social security numbers required on an application under sub. (1m), income records, value of assets, eligibility for public assistance, as defined in s. 16.20 (1) (fm), and claims of expenses.".

821.

Page 2239, line 25: after that line insert:

"SECTION 7269m. 977.06 (1) (a) of the statutes, as created by 1995 Wisconsin Act .... (this act), is amended to read:

977.06 (1) (a) Verify the information necessary to determine indigency under s. 977.07 (2). The information provided by a person seeking assigned counsel that is subject to verification shall include the social security numbers required on an application under sub. (1m), income records, value of assets, eligibility for public assistance, as defined in s. 16.20 106.215 (1) (fm), and claims of expenses.

SECTION 7269p. 977.06 (1m) of the statutes is created to read:

977.06 (1m) APPLICATION FOR REPRESENTATION. A person seeking to have counsel assigned for him or her under s. 977.08, other than a child who is entitled to be represented by counsel under s. 48.23, shall provide the state public defender with his or her social security number and the social security numbers of his or her spouse and dependent children, if any.".

822.

Page 2240, line 2: after that line insert:

"SECTION 7270m. 977.06 (2) (am) of the statutes is created to read:

977.06 (2) (am) A person seeking to have counsel assigned for him or her under s. 977.08, other than a child who is entitled to be represented by counsel under s. 48.23, shall sign a statement declaring that the information that he or she has given to determine eligibility for assignment of counsel he or she believes to be true and that he or she is informed that he or she is subject to the penalty under par. (b).".

823.

Page 2240, line 4: after that line insert:

"SECTION 7271g. 977.06 (3) (b) of the statutes is created to read:

977.06 (3) (b) The state public defender may petition a court that ordered payment under s. 757.66, 973.06 (1) (e) or 977.076 (1) to modify an order or judgment to adjust the amount of payment or the scheduled amounts at any time.

SECTION 7271m. 977.06 (3) (c) of the statutes is created to read:

977.06 (3) (c) Except as provided in s. 48.275 (2) (b), an adjustment under this subsection shall be based on the person's ability to pay and on the fee schedule established by the board under s. 977.075 (3).".

824.

Page 2240, line 6: after that line insert:

"SECTION 7272m. 977.07 (1) (a) of the statutes is amended to read:

977.07 (1) (a) Determination of indigency for persons entitled to counsel shall be made as soon as possible and shall be in accordance with the rules promulgated by the board under s. 977.02 (3) and the system established under s. 977.06. No determination of indigency is required for a child who is entitled to be represented by counsel under s. 48.23.".

825.

Page 2241, line 22: delete the material beginning with that line and ending with page 2242, line 3, and substitute:

"SECTION 7274m. 977.07 (2) (b) of the statutes is renumbered 977.06 (3) (a) and amended to read:

977.06 (3) (a) Unless the court has made an adjustment under s. 973.06 (1) (e), upon determination at the conclusion of a case that a person's financial circumstances are changed, the state public defender may adjust the amount of payment for counsel under par. (a) in accordance with par. (a) and sub. (1) (a).".

826.

Page 2242, line 19: delete that line and substitute: "48.275 (2), 757.66, 973.06 (1) (e) or 977.076 (1), and the possibility that the payment of attorney".

827.

Page 2243, line 1: substitute "subsection" for "paragraph".

****NOTE: The statutory unit referred to is a subsection, not a paragraph.

828.

Page 2243, line 2: after "977.075" insert "(1)".

829.

Page 2243, line 20 substitute "board" for "state public defender".

****NOTE: The SPD board is the entity that promulgates rules for the SPD.

830.

Page 2243, line 20: delete that line and substitute:

"977.075 Payment for legal representation. (1) The board shall establish".

831.

Page 2243, line 24: substitute "(a)" for "(1)".

832.

Page 2244, line 1: substitute "(b)" for "(2)".

833.

Page 2244, line 2: after that line insert:

"(2) The board shall establish by rule a procedure for collecting a nonrefundable partial payment for services from persons who are responsible for payment for legal representation and who are not indigent in full. The rule shall require that the payment be due within 60 days after the commencement of representation. This subsection does not apply to a parent who is subject to s. 48.275 (2) (b).

(3) The board shall establish by rule a fee schedule that sets the amount that a person, other than a parent under s. 48.275 (2) (b), who is responsible for payment for legal representation shall pay for the cost of the legal representation. The schedule shall establish a fee for a given type of case, and the fee for a given type of case shall be based on the average cost, as determined by the board, for representation for that type of case.

SECTION 7281q. 977.076 of the statutes is created to read:

977.076 Collections. (1) If the state public defender notifies the court in which the underlying action was filed that a person who is required to reimburse the state public defender for legal representation has failed to make the required payment or to timely make periodic payments, the court may issue a judgment on behalf of the state for the unpaid balance and direct the clerk of circuit court to file and docket a transcript of the judgment, without fee. If the court issues a judgment for the unpaid balance, the court shall send a notice to the person at his or her last-known address that a civil judgment has been issued for the unpaid balance. The judgment has the same force and effect as judgments issued under s. 806.10. Except as provided in s. 48.275 (2) (b), the judgment shall be based on the person's ability to pay and on the fee schedule established by the board under s. 977.075 (3).

(2) The department of administration may collect unpaid reimbursement payments to the state public defender ordered by a court under sub. (1) or s. 48.275 (1) (a), 757.66 or 973.06 (1) (e). The department may contract with a private collection agency to collect these payments. Section 16.705 does not apply to a contract under this subsection.".

834.

Page 2244, line 3: delete lines 3 to 7 and substitute:

"SECTION 7281s. 977.077 of the statutes is created to read:

977.077 Deposit of payments received. Payments for services provided by the state public defender or other counsel under this chapter that are received pursuant to s. 977.07, 977.075 or 977.076 shall be deposited in the state treasury and credited to the appropriation under s. 20.550 (1) (L).".