AB497-SSA1,12,2020 1. Files a motion for testing of the biological material under s. 974.07.
AB497-SSA1,12,2221 2. Submits a written request to preserve the evidence to the law enforcement
22agency or district attorney.
AB497-SSA1,12,2423 (c) No other provision of federal or state law requires the law enforcement
24agency to preserve the biological material.
AB497-SSA1,13,5
1(4) A notice provided under sub. (3) (a) shall clearly inform the recipient that
2the biological material will be destroyed unless, within 90 days after the date on
3which the person receives the notice, either a motion for testing of the material is
4filed under s. 974.07 or a written request to preserve the evidence is submitted to the
5law enforcement agency.
AB497-SSA1,13,10 6(5) If, after providing notice under sub. (3) (a) of its intent to destroy biological
7material, a law enforcement agency receives a written request to preserve the
8evidence, the law enforcement agency shall preserve the evidence until the discharge
9date of the person who made the request or on whose behalf the request was made,
10subject to a court order issued under s. 974.07 (6m), (7) or (8).
AB497-SSA1, s. 26 11Section 26. 971.04 (3) of the statutes is amended to read:
AB497-SSA1,14,312 971.04 (3) If the defendant is present at the beginning of the trial and
13thereafter, during the progress of the trial or before the verdict of the jury has been
14returned into court, voluntarily absents himself or herself from the presence of the
15court without leave of the court, the trial or return of verdict of the jury in the case
16shall not thereby be postponed or delayed, but the trial or submission of said case to
17the jury for verdict and the return of verdict thereon, if required, shall proceed in all
18respects as though the defendant were present in court at all times. A defendant
19need not be present at the pronouncement or entry of an order granting or denying
20relief under s. 974.02 or, 974.06 or 974.07. If the defendant is not present, the time
21for appeal from any order under ss. 974.02 and, 974.06 and 974.07 shall commence
22after a copy has been served upon the attorney representing the defendant, or upon
23the defendant if he or she appeared without counsel. Service of such an order shall
24be complete upon mailing. A defendant appearing without counsel shall supply the
25court with his or her current mailing address. If the defendant fails to supply the

1court with a current and accurate mailing address, failure to receive a copy of the
2order granting or denying relief shall not be a ground for tolling the time in which
3an appeal must be taken.
AB497-SSA1, s. 27 4Section 27. 974.02 (1) of the statutes is amended to read:
AB497-SSA1,14,135 974.02 (1) A motion for postconviction relief other than under s. 974.06 or
6974.07
by the defendant in a criminal case shall be made in the time and manner
7provided in ss. 809.30 and 809.40. An appeal by the defendant in a criminal case from
8a judgment of conviction or from an order denying a postconviction motion or from
9both shall be taken in the time and manner provided in ss. 808.04 (3), 809.30 and
10809.40. An appeal of an order or judgment on habeas corpus remanding to custody
11a prisoner committed for trial under s. 970.03 shall be taken under ss. 808.03 (2) and
12809.50, with notice to the attorney general and the district attorney and opportunity
13for them to be heard.
AB497-SSA1, s. 28 14Section 28. 974.05 (1) (b) of the statutes is amended to read:
AB497-SSA1,14,1615 974.05 (1) (b) Order granting postconviction relief under s. 974.02 or, 974.06
16or 974.07.
AB497-SSA1, s. 29 17Section 29. 974.07 of the statutes is created to read:
AB497-SSA1,14,21 18974.07 Motion for postconviction deoxyribonucleic acid testing of
19certain evidence.
(1) In this section, "government agency" means any department
20or agency of the federal government, of this state or of a city, village, town or county
21in this state.
AB497-SSA1,15,2 22(2) At any time after being convicted of a crime, adjudicated delinquent or
23found not guilty by reason of mental disease or defect, a person may make a motion
24in the court in which he or she was convicted, adjudicated delinquent or found not

1guilty by reason of mental disease or defect for an order requiring forensic
2deoxyribonucleic acid testing of evidence to which all of the following apply:
AB497-SSA1,15,53 (a) The evidence is relevant to the investigation or prosecution that resulted
4in the conviction, adjudication or finding of not guilty by reason of mental disease or
5defect.
AB497-SSA1,15,76 (b) The evidence is in the actual or constructive possession of a government
7agency.
AB497-SSA1,15,128 (c) The evidence has not previously been subjected to forensic deoxyribonucleic
9acid testing or, if the evidence has previously been tested, it may now be subjected
10to another test using a scientific technique that was not available at the time of the
11previous testing and that provides a reasonable likelihood of more accurate and
12probative results.
AB497-SSA1,15,21 13(3) A person who makes a motion under this section or, if applicable, his or her
14attorney shall serve a copy of the motion on the district attorney's office that
15prosecuted the case that resulted in the conviction, adjudication or finding of not
16guilty by reason of mental disease or defect. The court in which the motion is made
17shall also notify the appropriate district attorney's office that a motion has been
18made under this section and shall give the district attorney an opportunity to
19respond to the motion. Failure by a person making a motion under this section to
20serve a copy of the motion on the appropriate district attorney's office does not
21deprive the court of jurisdiction and is not grounds for dismissal of the motion.
AB497-SSA1,16,5 22(4) (a) The clerk of the circuit court in which a motion made under this section
23shall send a copy of the motion and, if a hearing is scheduled, a notice of the hearing
24on the motion to the victim of the crime or delinquent act committed by the person
25who made the motion, if the clerk is able to determine an address for the victim. The

1clerk of the circuit court shall make a reasonable attempt to send the copy of the
2motion to the address of the victim within 7 days of the date on which the motion is
3filed and shall make a reasonable attempt to send a notice of hearing, if a hearing
4is scheduled, to the address of the victim, postmarked at least 10 days before the date
5of the hearing.
AB497-SSA1,16,126 (b) Notwithstanding the limitation on the disclosure of mailing addresses from
7completed information cards submitted by victims under ss. 51.37 (10) (dx), 301.046
8(4) (d), 301.048 (4m) (d), 301.38 (4), 302.115 (4), 304.06 (1) (f), 304.063 (4), 938.51 (2),
9971.17 (6m) (d) and 980.11 (4), the department of corrections, the parole commission
10and the department of health and family services shall, upon request, assist clerks
11of court in obtaining information regarding the mailing address of victims for the
12purpose of sending copies of motions and notices of hearings under par. (a).
AB497-SSA1,16,18 13(5) Upon receiving under sub. (3) a copy of a motion made under this section
14or notice from a court that a motion has been made, whichever occurs first, the
15district attorney shall take all actions necessary to ensure that all biological material
16that was collected in connection with the investigation or prosecution of the case and
17that remains in the actual or constructive custody of a government agency is
18preserved pending completion of the proceedings under this section.
AB497-SSA1,16,20 19(6) A court in which a motion under this section is filed shall order forensic
20deoxyribonucleic acid testing if all of the following apply:
AB497-SSA1,16,2321 (a) The person making the motion claims that he or she is actually innocent of
22the offense for which he or she was convicted, found not guilty by reason of mental
23disease or defect or adjudicated delinquent.
AB497-SSA1,17,224 (b) The court determines either that the chain of custody of the evidence to be
25tested establishes that the evidence has not been tampered with, replaced or altered

1in any material respect or, if the chain of custody cannot establish the integrity of the
2evidence, that the testing itself can establish the integrity of the evidence.
AB497-SSA1,17,43 (c) The court determines that the testing may produce noncumulative evidence
4that is relevant to the person's assertion of actual innocence.
AB497-SSA1,17,9 5(6m) If a court in which a motion under this section is filed does not order
6forensic deoxyribonucleic acid testing, the court shall determine the disposition of
7the evidence that the motion seeks to have tested and, if the evidence is to be
8preserved, by whom and for how long. The court shall issue appropriate orders
9concerning the disposition of the evidence based on its determinations.
AB497-SSA1,17,14 10(7) The court may impose reasonable conditions on any testing ordered under
11this section in order to protect the integrity of the evidence and the testing process.
12If appropriate and if stipulated to by the person who made the motion under this
13section and the district attorney, the court may order the state crime laboratories to
14perform the testing as provided under s. 165.77 (2m).
AB497-SSA1,17,20 15(8) (a) If the results of forensic deoxyribonucleic acid testing ordered under this
16section are unfavorable to the person who made the motion for testing, the court shall
17determine the disposition of any evidence that remains after the completion of the
18testing and, if the evidence is to be preserved, by whom and for how long. The court
19shall issue appropriate orders concerning the disposition of the evidence based on its
20determinations.
AB497-SSA1,18,221 (b) If the results of forensic deoxyribonucleic acid testing ordered under this
22section are favorable to the person who made the motion for testing, the court shall
23schedule a hearing to determine the appropriate relief to be granted to the person.
24After the hearing, and based on the results of the testing and any evidence or other

1matter presented at the hearing, the court shall enter any order that serves the
2interests of justice, including any of the following:
AB497-SSA1,18,53 1. An order setting aside or vacating the person's judgment of conviction,
4judgment of not guilty by reason of mental disease or defect or adjudication of
5delinquency.
AB497-SSA1,18,66 2. An order granting the person a new trial or fact-finding hearing.
AB497-SSA1,18,87 3. An order granting the person a new sentencing hearing, commitment
8hearing or dispositional hearing.
AB497-SSA1,18,109 4. An order discharging the person from custody, as defined in s. 968.205 (1) (a),
10if the person is in custody.
AB497-SSA1,18,1311 5. An order specifying the disposition of any evidence that remains after the
12completion of the testing and, if the evidence is to be preserved, by whom and for how
13long.
AB497-SSA1,18,1514 (c) A court may order a new trial under par. (b) without making the findings
15specified in s. 805.15 (3) (a) and (b).
AB497-SSA1,18,19 16(9) A court considering a motion made under this section by a person who is
17not represented by counsel shall, if the person claims or appears to be indigent, refer
18the person to the state public defender for determination of indigency and
19appointment of counsel under s. 977.05 (4) (j).
AB497-SSA1,18,24 20(10) (a) The court may order a person who makes a motion under this section
21to pay the costs of any testing ordered by the court under this section if the court
22determines that the person is not indigent. If the court determines that the person
23is indigent, the court shall order the costs of the testing to be paid for from the
24appropriation account under s. 20.410 (1) (be).
AB497-SSA1,18,2525 (b) A person is indigent for purposes of par. (a) if any of the following apply:
AB497-SSA1,19,2
11. The person was referred to the state public defender under sub. (9) for a
2determination of indigency and was found to be indigent.
AB497-SSA1,19,63 2. The person was referred to the state public defender under sub. (9) for a
4determination of indigency but was found not to be indigent, and the court
5determines that the person does not possess the financial resources to pay the costs
6of testing.
AB497-SSA1,19,97 3. The person was not referred to the state public defender under sub. (9) for
8a determination of indigency and the court determines that the person does not
9possess the financial resources to pay the costs of testing.
AB497-SSA1,19,11 10(11) An appeal may be taken from an order entered under this section as from
11a final judgment.
AB497-SSA1, s. 30 12Section 30. 977.07 (1) (b) of the statutes is amended to read:
AB497-SSA1,19,1913 977.07 (1) (b) For referrals not made under ss. 809.30 and, 974.06 and 974.07,
14a representative of the state public defender is responsible for making indigency
15determinations unless the county became responsible under s. 977.07 (1) (b) 2. or 3.,
161983 stats., for these determinations. Subject to the provisions of par. (bn), those
17counties may continue to be responsible for making indigency determinations. Any
18such county may change the agencies or persons who are designated to make
19indigency determinations only upon the approval of the state public defender.
AB497-SSA1, s. 31 20Section 31. 977.07 (1) (c) of the statutes is amended to read:
AB497-SSA1,20,521 977.07 (1) (c) For all referrals made under ss. 809.30 and, 974.06 (3) (b) and
22974.07 (9)
, except a referral of a child who is entitled to be represented by counsel
23under s. 48.23 or 938.23, a representative of the state public defender shall
24determine indigency, and. For referrals made under ss. 809.30 and 974.06 (3) (b),
25except a referral of a child who is entitled to be represented by counsel under s. 48.23

1or 938.23, the representative of the state public defender
may, unless a request for
2redetermination has been filed under s. 809.30 (2) (d) or the defendant's request for
3representation states that his or her financial circumstances have materially
4improved, rely upon a determination of indigency made for purposes of trial
5representation under this section.
AB497-SSA1, s. 32 6Section 32. 978.08 of the statutes is created to read:
AB497-SSA1,20,7 7978.08 Preservation of certain evidence. (1) In this section:
AB497-SSA1,20,88 (a) "Custody" has the meaning given in s. 968.205 (1) (a).
AB497-SSA1,20,99 (b) "Discharge date" has the meaning given in s. 968.205 (1) (b).
AB497-SSA1,20,14 10(2) Except as provided in sub. (3), if physical evidence that is in the possession
11of a district attorney includes any biological material that was collected in connection
12with a criminal action or with a delinquency proceeding under ch. 938, the physical
13evidence shall be preserved until every person in custody as a result of the criminal
14action or delinquency proceeding has reached his or her discharge date.
AB497-SSA1,20,16 15(3) Subject to sub. (5), a district attorney may destroy biological material before
16the expiration of the time period specified in sub. (2) if all of the following apply:
AB497-SSA1,20,2017 (a) The district attorney sends a notice of its intent to destroy the biological
18material to all persons who remain in custody as a result of the criminal action or
19delinquency proceeding and to either the attorney of record for each person in
20custody or the state public defender.
AB497-SSA1,20,2221 (b) No person who is notified under par. (a) does either of the following within
2290 days after the date on which the person received the notice:
AB497-SSA1,20,2323 1. Files a motion for testing of the biological material under s. 974.07.
AB497-SSA1,20,2424 2. Submits a written request to preserve the evidence to the district attorney.
AB497-SSA1,21,2
1(c) No other provision of federal or state law requires the district attorney to
2preserve the biological material.
AB497-SSA1,21,7 3(4) A notice provided under sub. (3) (a) shall clearly inform the recipient that
4the biological material will be destroyed unless, within 90 days after the date on
5which the person receives the notice, either a motion for testing of the material is
6filed under s. 974.07 or a written request to preserve the evidence is submitted to the
7district attorney.
AB497-SSA1,21,12 8(5) If, after providing notice under sub. (3) (a) of its intent to destroy biological
9material, a district attorney receives a written request to preserve the evidence, the
10district attorney shall preserve the evidence until the discharge date of the person
11who made the request or on whose behalf the request was made, subject to a court
12order issued under s. 974.07 (6m), (7) or (8).
AB497-SSA1, s. 33 13Section 33. 980.101 of the statutes is created to read:
AB497-SSA1,21,19 14980.101 Reversal, vacation or setting aside of judgment relating to a
15sexually violent offense; effect.
(1) In this section, "judgment relating to a
16sexually violent offense" means a judgment of conviction for a sexually violent
17offense, an adjudication of delinquency on the basis of a sexually violent offense or
18a judgment of not guilty of a sexually violent offense by reason of mental disease or
19defect.
AB497-SSA1,21,25 20(2) If, at any time after a person is committed under s. 980.06, a judgment
21relating to a sexually violent offense committed by the person is reversed, set aside
22or vacated and that sexually violent offense was a basis for the allegation made in
23the petition under s. 980.02 (2) (a), the person may bring a motion for
24postcommitment relief in the court the committed the person. The court shall
25proceed as follows on the motion for postcommitment relief:
AB497-SSA1,22,4
1(a) If the sexually violent offense was the sole basis for the allegation under s.
2980.02 (2) (a) and there are no other judgments relating to a sexually violent offense
3committed by the person, the court shall vacate the commitment order and discharge
4the person from the custody or supervision of the department.
AB497-SSA1,22,115 (b) If the sexually violent offense was the sole basis for the allegation under s.
6980.02 (2) (a) but there are other judgments relating to a sexually violent offense
7committed by the person that have not been reversed, set aside or vacated, or if the
8sexually violent offense was not the sole basis for the allegation under s. 980.02 (2)
9(a), the court shall determine whether to grant the person a new trial under s. 980.05
10because the reversal, setting aside or vacating of the judgement for the sexually
11violent offense would probably change the result of the trial.
AB497-SSA1,22,13 12(3) An appeal may be taken from an an order entered under sub. (2) as from
13a final judgment.
AB497-SSA1, s. 34 14Section 34. 980.11 (2) (intro.) of the statutes, as affected by 1999 Wisconsin
15Act 9
, is amended to read:
AB497-SSA1,22,1816 980.11 (2) (intro.) If the court places a person on supervised release under s.
17980.08 or discharges a person under s. 980.09 or, 980.10 or 980.101 (2) (a), the
18department shall do all of the following:
AB497-SSA1, s. 35 19Section 35. Initial applicability.
AB497-SSA1,22,2220 (1) The treatment of section 939.74 (1), (2) (c) and (2d) of the statutes first
21applies to offenses not barred from prosecution on the effective date of this
22subsection.
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