SB490: Bill Text

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).

SB490, s. 51 Section 51. 809.40 (1) of the statutes is repealed.

SB490, s. 52 Section 52. 809.40 (1m) of the statutes is amended to read:

SB490,22,5 809.40 (1m) Subsection (1) does not apply to an An appeal from an order denying a petition under s. 48.375 (7), which is governed by the procedures specified in s. 809.105, or to and an appeal from an order or judgment under s. 48.43, which is governed by the procedures specified in s. 809.107.

SB490, s. 53 Section 53. 809.40 (3) of the statutes, as affected by Supreme Court Order 00-02, is amended to read:

SB490,22,10 809.40 (3) Any civil appeal to the court of appeals under sub. (1) or (2) is subject to the docketing statement requirement of s. 809.10 (1) (d) and may be eligible for the expedited appeals program in the discretion of the court.

SB490, s. 54 Section 54. 809.62 (1) (intro.) of the statutes is amended to read:

SB490,22,17 809.62 (1) (intro.) A party may file with the supreme court a petition for review of an adverse decision of the court of appeals pursuant to s. 808.10 within 30 days of the date of the decision of the court of appeals. Supreme court review is a matter of judicial discretion, not of right, and will be granted only when special and important reasons are presented. The following, while neither controlling nor fully measuring the court's discretion, indicate criteria that will be considered:

SB490, s. 55 Section 55. 809.82 (2) (b) of the statutes is amended to read:

SB490,22,21 809.82 (2) (b) Notwithstanding the provisions of par. (a), the time for filing a notice of appeal or cross-appeal of a final judgment or order other than in an appeal under s. 809.30 or 809.40 (1) 809.32 may not be enlarged.

SB490, s. 56 Section 56. 938.297 (8) of the statutes is created to read:

SB490,23,2 938.297 (8) An order denying a motion to suppress evidence or a motion challenging the admissibility of a statement of a juvenile may be reviewed upon appeal from a final judgment or order notwithstanding the fact that such final judgment or order was entered upon an admission or a plea of no contest to the allegations in the petition.

SB490, s. 57 Section 57. 971.17 (7m) of the statutes is created to read:

SB490,23,12 971.17 (7m) Motion for postdisposition relief and appeal. (a) Appeal by respondent. A motion for postdisposition relief by a person committed under this section shall be made in the time and manner provided in ss. 809.30 to 809.32. An appeal by a person who has been committed under this section from a final order under this section or from an order denying a motion for postdisposition relief shall be taken in the time and manner provided in ss. 808.04 (3) and 809.30 to 809.32. The person shall file a motion for postdisposition relief in the circuit court before a notice of appeal is filed unless the grounds for seeking relief are sufficiency of the evidence or issues previously raised.

SB490,23,15 (b) Appeal by state. An appeal by the state from a final judgment or order under this section may be taken to the court of appeals within the time specified in s. 808.04 (4) and in the manner provided for civil appeals under chs. 808 and 809.

SB490, s. 58 Section 58. 974.02 (1) of the statutes, as affected by 2001 Wisconsin Act 16, is amended to read:

SB490,24,2 974.02 (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 to 809.32. 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), and 809.30 and 809.40 to 809.32. 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.

SB490, s. 59 Section 59. 974.02 (2) of the statutes is amended to read:

SB490,24,6 974.02 (2) An appellant is not required to file a postconviction motion in the trial circuit court prior to an appeal if the grounds are sufficiency of the evidence or issues previously raised.

SB490, s. 60 Section 60. 980.061 of the statutes is created to read:

SB490,24,16 980.061 Motion for postdisposition relief and appeal. (1) Appeal by respondent. A motion for postdisposition relief from a final order or judgment by a person committed under this chapter shall be made in the time and manner provided in ss. 809.30 to 809.32. An appeal from a final order or judgment entered under this chapter or from an order denying a motion for postdisposition relief by a person committed under this chapter shall be taken in the time and manner provided in ss. 808.04 (3) and 809.30 to 809.32. The person shall file a motion for postdisposition relief in circuit court before a notice of appeal is filed unless the grounds for seeking relief are sufficiency of the evidence or issues previously raised.

SB490,24,19 (2) Appeal by state. An appeal by the state from a final judgment or order under this chapter may be taken to the court of appeals within the time specified in s. 808.04 (4) and in the manner provided for civil appeals under chs. 808 and 809.

SB490, s. 61 Section 61. Effective date.

SB490,24,22 (1) This act takes effect on the first day of the 4th month beginning after publication.

SB490,24,23 (End)