AB291: Bill Text

AB291,19,20 974.02 (1) A motion for postconviction relief other than under s. 974.06 or 974.07 (2) by the defendant in a criminal case shall be made in the time and manner provided in ss. 809.30 and 809.40. An appeal by the defendant in a criminal case from a judgment of conviction or from an order denying a postconviction motion or from both shall be taken in the time and manner provided in ss. 808.04 (3), 809.30 and 809.40. An appeal of an order or judgment on habeas corpus remanding to custody a prisoner committed for trial under s. 970.03 shall be taken under ss. 808.03 (2) and 809.50, with notice to the attorney general and the district attorney and opportunity for them to be heard.

AB291, s. 35 Section 35. 974.05 (1) (b) of the statutes is amended to read:

AB291,19,23 974.05 (1) (b) Order granting postconviction relief under s. 974.02 or, 974.06 or 974.07.

AB291, s. 36 Section 36. 974.07 of the statutes is created to read:

AB291,20,2 974.07 Motion for postconviction deoxyribonucleic acid testing of certain evidence. (1) In this section:

AB291,20,3 (a) "Movant" means a person who makes a motion under sub. (2).

AB291,20,5 (b) "Government agency" means any department, agency, or court of the federal government, of this state, or of a city, village, town, or county in this state.

AB291,20,10 (2) At any time after being convicted of a crime, adjudicated delinquent, or found not guilty by reason of mental disease or defect, a person may make a motion in the court in which he or she was convicted, adjudicated delinquent, or found not guilty by reason of mental disease or defect for an order requiring forensic deoxyribonucleic acid testing of evidence to which all of the following apply:

AB291,20,13 (a) The evidence is relevant to the investigation or prosecution that resulted in the conviction, adjudication, or finding of not guilty by reason of mental disease or defect.

AB291,20,15 (b) The evidence is in the actual or constructive possession of a government agency.

AB291,20,20 (c) The evidence has not previously been subjected to forensic deoxyribonucleic acid testing or, if the evidence has previously been tested, it may now be subjected to another test using a scientific technique that was not available or was not utilized at the time of the previous testing and that provides a reasonable likelihood of more accurate and probative results.

AB291,21,4 (3) A movant or, if applicable, his or her attorney shall serve a copy of the motion made under sub. (2) on the district attorney's office that prosecuted the case that resulted in the conviction, adjudication, or finding of not guilty by reason of mental disease or defect. The court in which the motion is made shall also notify the appropriate district attorney's office that a motion has been made under sub. (2) and shall give the district attorney an opportunity to respond to the motion. Failure by a movant to serve a copy of the motion on the appropriate district attorney's office does not deprive the court of jurisdiction and is not grounds for dismissal of the motion.

AB291,21,12 (4) (a) The clerk of the circuit court in which a motion under sub. (2) is made shall send a copy of the motion and, if a hearing on the motion is scheduled, a notice of the hearing to the victim of the crime or delinquent act committed by the movant, if the clerk is able to determine an address for the victim. The clerk of the circuit court shall make a reasonable attempt to send the copy of the motion to the address of the victim within 7 days of the date on which the motion is filed and shall make a reasonable attempt to send a notice of hearing, if a hearing is scheduled, to the address of the victim, postmarked at least 10 days before the date of the hearing.

AB291,21,19 (b) Notwithstanding the limitation on the disclosure of mailing addresses from completed information cards submitted by victims under ss. 51.37 (10) (dx), 301.046 (4) (d), 301.048 (4m) (d), 301.38 (4), 302.115 (4), 304.06 (1) (f), 304.063 (4), 938.51 (2), 971.17 (6m) (d), and 980.11 (4), the department of corrections, the parole commission, and the department of health and family services shall, upon request, assist clerks of court in obtaining information regarding the mailing address of victims for the purpose of sending copies of motions and notices of hearings under par. (a).

AB291,21,25 (5) Upon receiving under sub. (3) a copy of a motion made under sub. (2) or notice from a court that a motion has been made, whichever occurs first, the district attorney shall take all actions necessary to ensure that all biological material that was collected in connection with the investigation or prosecution of the case and that remains in the actual or constructive custody of a government agency is preserved pending completion of the proceedings under this section.

AB291,22,3 (6) (a) Upon demand the district attorney shall disclose to the movant or his or her attorney whether biological material has been tested and shall make available to the movant or his or her attorney the following material:

AB291,22,4 1. Findings based on testing of biological materials.

AB291,22,7 2. Physical evidence that is in the actual or constructive possession of a government agency and that contains biological material or on which there is biological material.

AB291,22,10 (b) Upon demand the movant or his or her attorney shall disclose to the district attorney whether biological material has been tested and shall make available to the district attorney the following material:

AB291,22,11 1. Findings based on testing of biological materials.

AB291,22,12 2. The movant's biological specimen.

AB291,22,15 (c) Upon motion of the district attorney or the movant, the court may impose reasonable conditions on availability of material requested under pars. (a) 2. and (b) 2. in order to protect the integrity of the evidence.

AB291,22,18 (d) This subsection does not apply unless the information being disclosed or the material being made available is relevant to the movant's claim of innocence at issue in the motion made under sub. (2).

AB291,22,20 (7) (a) A court in which a motion under sub. (2) is filed shall order forensic deoxyribonucleic acid testing if all of the following apply:

AB291,22,25 1. It is reasonably probable that the movant would not have been prosecuted, convicted, found not guilty by reason of mental disease or defect, or adjudicated delinquent for the offense at issue in the motion under sub. (2), if exculpatory deoxyribonucleic acid testing results had been available before the prosecution, conviction, finding of not guilty, or adjudication for the offense.

AB291,23,2 2. The evidence is in the actual or constructive possession of a government agency.

AB291,23,6 3. The chain of custody of the evidence to be tested establishes that the evidence has not been tampered with, replaced, or altered in any material respect or, if the chain of custody does not establish the integrity of the evidence, the testing itself can establish the integrity of the evidence.

AB291,23,11 4. The evidence has not previously been subjected to forensic deoxyribonucleic acid testing or, if the evidence has previously been tested, it may now be subjected to another test using a scientific technique that was not available or was not utilized at the time of the previous testing and that provides a reasonable likelihood of more accurate and probative results.

AB291,23,13 (b) A court in which a motion under sub. (2) is filed may order forensic deoxyribonucleic acid testing if all of the following apply:

AB291,23,19 1. The conviction or sentence in a criminal proceeding, the finding of not guilty by reason of mental disease or defect, the commitment under s. 971.17, or the adjudication or disposition in a proceeding under ch. 938, would have been more favorable to the movant if the results of deoxyribonucleic acid testing had been available before he or she was prosecuted, convicted, found not guilty by reason of mental disease or defect, or adjudicated delinquent for the offense.

AB291,23,21 2. The evidence is in the actual or constructive possession of a government agency.

AB291,23,25 3. The chain of custody of the evidence to be tested establishes that the evidence has not been tampered with, replaced, or altered in any material respect or, if the chain of custody does not establish the integrity of the evidence, the testing itself can establish the integrity of the evidence.

AB291,24,5 4. The evidence has not previously been subjected to forensic deoxyribonucleic acid testing or, if the evidence has previously been tested, it may now be subjected to another test using a scientific technique that was not available or was not utilized at the time of the previous testing and that provides a reasonable likelihood of more accurate and probative results.

AB291,24,10 (8) The court may impose reasonable conditions on any testing ordered under this section in order to protect the integrity of the evidence and the testing process. If appropriate and if stipulated to by the movant and the district attorney, the court may order the state crime laboratories to perform the testing as provided under s. 165.77 (2m).

AB291,24,15 (9) If a court in which a motion under sub. (2) is filed does not order forensic deoxyribonucleic acid testing, or if the results of forensic deoxyribonucleic acid testing ordered under this section are not supportive of the movant's innocence claim, the court shall determine the disposition of the evidence specified in the motion subject to the following:

AB291,24,23 (a) If a person other than the movant is in custody, as defined in s. 968.205 (1) (a), the evidence is relevant to the criminal, delinquency, or commitment proceeding that resulted in the person being in custody, the person has not been denied deoxyribonucleic acid testing or postconviction relief under this section, and the person has not waived his or her right to preserve the evidence under s. 165.81 (3), 757.54 (2), 968.205, or 978.08, the court shall order the evidence preserved until all persons entitled to have the evidence preserved are released from custody, and the court shall designate who shall preserve the evidence.

AB291,25,2 (b) If the conditions in par. (a) are not present, the court shall determine the disposition of the evidence, and, if the evidence is to be preserved, by whom and for how long. The court shall issue appropriate orders concerning the disposition of the evidence based on its determinations.

AB291,25,8 (10) (a) If the results of forensic deoxyribonucleic acid testing ordered under this section support the movant's claim of innocence, the court shall schedule a hearing to determine the appropriate relief to be granted to the movant. After the hearing, and based on the results of the testing and any evidence or other matter presented at the hearing, the court shall enter any order that serves the interests of justice, including any of the following:

AB291,25,11 1. An order setting aside or vacating the movant's judgment of conviction, judgment of not guilty by reason of mental disease or defect, or adjudication of delinquency.

AB291,25,12 2. An order granting the movant a new trial or fact-finding hearing.

AB291,25,14 3. An order granting the movant a new sentencing hearing, commitment hearing, or dispositional hearing.

AB291,25,16 4. An order discharging the movant from custody, as defined in s. 968.205 (1) (a), if the movant is in custody.

AB291,25,18 5. An order specifying the disposition of any evidence that remains after the completion of the testing, subject to sub. (9) (a) and (b).

AB291,25,20 (b) A court may order a new trial under par. (a) without making the findings specified in s. 805.15 (3) (a) and (b).

AB291,25,24 (11) A court considering a motion made under sub. (2) by a movant who is not represented by counsel shall, if the movant claims or appears to be indigent, refer the movant to the state public defender for determination of indigency and appointment of counsel under s. 977.05 (4) (j).

AB291,26,5 (12) (a) The court may order a movant to pay the costs of any testing ordered by the court under this section if the court determines that the movant is not indigent. If the court determines that the movant is indigent, the court shall order the costs of the testing to be paid for from the appropriation account under s. 20.410 (1) (be).

AB291,26,6 (b) A movant is indigent for purposes of par. (a) if any of the following apply:

AB291,26,8 1. The movant was referred to the state public defender under sub. (11) for a determination of indigency and was found to be indigent.

AB291,26,12 2. The movant was referred to the state public defender under sub. (11) for a determination of indigency but was found not to be indigent, and the court determines that the movant does not possess the financial resources to pay the costs of testing.

AB291,26,15 3. The movant was not referred to the state public defender under sub. (11) for a determination of indigency and the court determines that the movant does not possess the financial resources to pay the costs of testing.

AB291,26,17 (13) An appeal may be taken from an order entered under this section as from a final judgment.

AB291, s. 37 Section 37. 977.07 (1) (b) of the statutes is amended to read:

AB291,26,25 977.07 (1) (b) For referrals not made under ss. 809.30 and, 974.06 and 974.07, a representative of the state public defender is responsible for making indigency determinations unless the county became responsible under s. 977.07 (1) (b) 2. or 3., 1983 stats., for these determinations. Subject to the provisions of par. (bn), those counties may continue to be responsible for making indigency determinations. Any such county may change the agencies or persons who are designated to make indigency determinations only upon the approval of the state public defender.

AB291, s. 38 Section 38. 977.07 (1) (c) of the statutes is amended to read:

AB291,27,11 977.07 (1) (c) For all referrals made under ss. 809.30 and, 974.06 (3) (b) and 974.07 (11), except a referral of a child who is entitled to be represented by counsel under s. 48.23 or 938.23, a representative of the state public defender shall determine indigency, and. For referrals made under ss. 809.30 and 974.06 (3) (b), except a referral of a child who is entitled to be represented by counsel under s. 48.23 or 938.23, the representative of the state public defender may, unless a request for redetermination has been filed under s. 809.30 (2) (d) or the defendant's request for representation states that his or her financial circumstances have materially improved, rely upon a determination of indigency made for purposes of trial representation under this section.

AB291, s. 39 Section 39. 978.08 of the statutes is created to read:

AB291,27,13 978.08 Preservation of certain evidence. (1) In this section:

AB291,27,14 (a) "Custody" has the meaning given in s. 968.205 (1) (a).

AB291,27,15 (b) "Discharge date" has the meaning given in s. 968.205 (1) (b).

AB291,27,21 (2) Except as provided in sub. (3), if physical evidence that is in the possession of a district attorney includes any biological material that was collected in connection with a criminal investigation that resulted in a criminal conviction, delinquency adjudication, or commitment under s. 971.17 or 980.06, the district attorney shall preserve the physical evidence until every person in custody as a result of the conviction, adjudication, or commitment has reached his or her discharge date.

AB291,27,23 (3) Subject to sub. (5), a district attorney may destroy biological material before the expiration of the time period specified in sub. (2) if all of the following apply:

AB291,28,2 (a) The district attorney sends a notice of its intent to destroy the biological material to all persons who remain in custody as a result of the criminal conviction, delinquency adjudication, or commitment and to either the attorney of record for each person in custody or the state public defender.

AB291,28,4 (b) No person who is notified under par. (a) does either of the following within 90 days after the date on which the person received the notice:

AB291,28,5 1. Files a motion for testing of the biological material under s. 974.07 (2).

AB291,28,7 2. Submits a written request to preserve the biological material to the district attorney.

AB291,28,9 (c) No other provision of federal or state law requires the district attorney to preserve the biological material.

AB291,28,14 (4) A notice provided under sub. (3) (a) shall clearly inform the recipient that the biological material will be destroyed unless, within 90 days after the date on which the person receives the notice, either a motion for testing of the material is filed under s. 974.07 (2) or a written request to preserve the material is submitted to the district attorney.

AB291,28,20 (5) If, after providing notice under sub. (3) (a) of its intent to destroy biological material, a district attorney receives a written request to preserve the material, the district attorney shall preserve the material until the discharge date of the person who made the request or on whose behalf the request was made, subject to a court order issued under s. 974.07 (7), (9) (a), or (10) (a) 5., unless the court authorizes destruction of the biological material under s. 974.07 (9) (b) or (10) (a) 5.

AB291, s. 40 Section 40. 980.101 of the statutes is created to read:

AB291,29,2 980.101 Reversal, vacation or setting aside of judgment relating to a sexually violent offense; effect. (1) In this section, "judgment relating to a sexually violent offense" means a judgment of conviction for a sexually violent offense, an adjudication of delinquency on the basis of a sexually violent offense, or a judgment of not guilty of a sexually violent offense by reason of mental disease or defect.

AB291,29,8 (2) If, at any time after a person is committed under s. 980.06, a judgment relating to a sexually violent offense committed by the person is reversed, set aside, or vacated and that sexually violent offense was a basis for the allegation made in the petition under s. 980.02 (2) (a), the person may bring a motion for postcommitment relief in the court that committed the person. The court shall proceed as follows on the motion for postcommitment relief:

AB291,29,14 (a) If the sexually violent offense was the sole basis for the allegation under s. 980.02 (2) (a) and there are no other judgments relating to a sexually violent offense committed by the person, the court shall reverse, set aside, or vacate the judgment under s. 980.05 (5) that the person is a sexually violent person, vacate the commitment order, and discharge the person from the custody or supervision of the department.

AB291,29,21 (b) If the sexually violent offense was the sole basis for the allegation under s. 980.02 (2) (a) but there are other judgments relating to a sexually violent offense committed by the person that have not been reversed, set aside, or vacated, or if the sexually violent offense was not the sole basis for the allegation under s. 980.02 (2) (a), the court shall determine whether to grant the person a new trial under s. 980.05 because the reversal, setting aside, or vacating of the judgement for the sexually violent offense would probably change the result of the trial.

AB291,29,23 (3) An appeal may be taken from an an order entered under sub. (2) as from a final judgment.

AB291, s. 41 Section 41. Initial applicability.

AB291,30,3 (1) The treatment of section 939.74 (1), (2) (c), and (2d) of the statutes first applies to offenses not barred from prosecution on the effective date of this subsection.

AB291, s. 42 Section 42. Effective dates. This act takes effect on the day after publication, except as follows:

AB291,30,8 (1) The treatment of sections 20.005 (3) (schedule), 20.410 (1) (be), and 974.07 (12) of the statutes takes effect on the day after publication, or on the 2nd day after the publication of the 2001-2003 biennial budget act, whichever is later.

AB291,30,9 (End)