Ch. 782 Note
NOTE: See Ch. 781 for alternative remedy.
782.01
782.01
Habeas corpus, who to have; definitions. 782.01(1)(1) Every person restrained of personal liberty may prosecute a writ of habeas corpus to obtain relief from such restraint subject to
ss. 782.02 and
974.06.
782.01(2)
(2) Any person confined in any hospital or institution as mentally ill or committed for treatment of alcoholism under
s. 51.45 (13) may prosecute such writ, and the question of mental illness or need for treatment shall be determined by the court or judge issuing the same. If such court or judge decides that the person is mentally ill or in need of treatment such decision shall not bar the prosecution of such writ a 2nd time if it is claimed that such person has been restored to reason or is no longer in need of treatment.
782.01(3)
(3) In this chapter, unless the context requires otherwise, judge includes the supreme court, the court of appeals and circuit courts and each justice and judge thereof and circuit and supplemental court commissioners; and prisoner includes every person restrained of personal liberty; and imprisoned includes every such restraint, and respondent means the person on whom the writ is to be served.
782.01 Annotation
Habeas corpus is a proper remedy with which to challenge the personal jurisdiction of a trial court over a criminal defendant and to challenge a ruling on a motion to suppress evidence when constitutional issues are involved. State ex rel. Warrender v. Kenosha County Ct.
67 Wis. 2d 333,
227 N.W.2d 450 (1975).
782.01 Annotation
A prevailing plaintiff in a habeas corpus proceeding may not be awarded costs. State ex rel. Korne v. Wolke,
79 Wis. 2d 22,
255 N.W.2d 446 (1977).
782.01 Annotation
A defendant released after making a deposit was not "restrained" under sub. (1). State ex rel. Kelley v. Posner,
91 Wis. 2d 301,
282 N.W.2d 633 (Ct. App. 1979).
782.01 Annotation
Habeas corpus is available to persons released on personal recognizance bonds. State ex rel. Wohlfahrt v. Bodette,
95 Wis. 2d 130,
289 N.W.2d 366 (Ct. App. 1980).
782.01 Annotation
A court had no jurisdiction under s. 974.06, relating to post-conviction procedure, to hear a challenge of the computation of a prisoner's good time. Habeas corpus is the proper avenue of relief. State v. Johnson,
101 Wis. 2d 698,
305 N.W.2d 188 (Ct. App. 1981).
782.01 Annotation
The procedure for a writ of habeas corpus is discussed. State ex rel. LeFebre v. Abrahamson,
103 Wis. 2d 197,
307 N.W.2d 186 (1981).
782.01 Annotation
Comity between circuit courts was not a sufficient reason to refuse to issue a writ but, under the facts of the case, the penalty for refusing to issue the writ under s. 782.09 was inappropriate. J.V. v. Barron,
112 Wis. 2d 256,
332 N.W.2d 796 (1983).
782.01 Annotation
Habeas corpus is available to a petitioner to challenge a criminal complaint and to test the sufficiency of evidence for bindover. State ex rel. McCaffrey v. Shanks,
124 Wis. 2d 216,
369 N.W.2d 743 (Ct. App. 1985). See also State ex rel. Cornellier v. Black,
144 Wis. 2d 745,
425 N.W.2d 21 (Ct. App. 1988).
782.01 Annotation
A question of statutory interpretation may be considered on a writ of habeas corpus only if noncompliance with the statute at issue resulted in the restraint of the petitioner's liberty in violation of the constitution or the court's jurisdiction. State ex rel. Hager v. Marten,
226 Wis. 2d 687,
594 N.W.2d 791 (1999),
97-3841.
782.01 Annotation
Because it is an extraordinary writ, habeas corpus relief is available only when the petitioner demonstrates: 1) restraint of his or her liberty, 2) the restraint was imposed contrary to constitutional protections or by a body lacking jurisdiction, and 3) no other adequate remedy available at law. A petition for a writ of habeas corpus will not be granted if the petitioner asserts a claim that could have been raised during a prior appeal if the petitioner offers no valid reason to excuse the failure. State v. Pozo,
2002 WI App 279,
258 Wis. 2d 796,
654 N.W.2d 12,
02-0127.
782.02
782.02
Who not entitled to. No person shall be entitled to prosecute such writ who shall have been committed or detained by virtue of the final judgment or order of any competent tribunal of civil or criminal jurisdiction or by virtue of any execution issued upon such order or judgment; but no order of commitment for any alleged contempt or upon proceedings as for contempt to enforce the rights or remedies of any party shall be deemed a judgment or order within the meaning of this section; nor shall any attachment or other process issued upon any such order be deemed an execution within the meaning of this section.
782.02 History
History: 1979 c. 32 s.
59; Stats. 1979 s. 782.02.
782.03
782.03
Petition for writ. Application for the writ shall be by petition, signed either by the prisoner or by some person in his or her behalf, and may be made to the supreme court, the court of appeals or the circuit court of the county, or to any justice or judge of the supreme court, court of appeals or circuit court or to any circuit or supplemental court commissioner, within the county where the prisoner is detained; or if there is no judge within the county, or for any cause he or she is incapable of acting, or has refused to grant the writ, then to some judge residing in an adjoining county; but every application, made by or on behalf of a person sentenced to the state prisons, must contain a copy of any motion made under
s. 974.06 and shall indicate the disposition of the motion and the court in which the disposition was made. If no motion was made, the petition shall so state.
782.03 History
History: 1977 c. 187,
449;
1979 c. 32 s.
59; Stats. 1979 s. 782.03;
2001 a. 61.
782.03 Annotation
A defendant's prejudicial deprivation of appellate counsel, be it the fault of the attorney or the appellate court, is properly remedied by a petition for habeas corpus in the supreme court. State ex rel. Fuentes v. Court of Appeals,
225 Wis. 2d 446,
593 N.W.2d 48 (1999),
98-1534.
782.04
782.04
Petition; contents. Such petition must be verified and must state in substance:
782.04(1)
(1) That the person in whose behalf the writ is applied for is restrained of personal liberty, the person by whom imprisoned and the place where, naming both parties, if their names are known, or describing them if they are not.
782.04(2)
(2) That such person is not imprisoned by virtue of any judgment, order or execution specified in
s. 782.02.
782.04(3)
(3) The cause or pretense of such imprisonment according to the best of petitioner's knowledge and belief.
782.04(4)
(4) If the imprisonment is by virtue of any order or process a copy thereof must be annexed, or it must be averred that, by reason of such prisoner being removed or concealed a demand of such copy could not be made or that such demand was made and a fee of $1 therefor tendered to the person having such prisoner in custody, and that such copy was refused.
782.04(5)
(5) In what the illegality of the imprisonment consists.
782.04 History
History: 1979 c. 32 ss.
59,
92 (11);
1979 c. 176; Stats. 1979 s. 782.04.
782.05
782.05
Application to officer in another county. Whenever application for any such writ is made to any officer not residing within the county where the prisoner is detained the officer shall require proof, by oath of the party appearing or by other sufficient evidence, that there is no officer in such county authorized to grant the writ or if there is one that the officer is absent or has refused to grant such writ, or for some cause, to be specifically set forth, is incapable of acting; and if such proof is not produced the application shall be denied.
782.05 History
History: 1979 c. 32 s.
59;
1979 c. 176; Stats. 1979 s. 782.05.
782.06
782.06
Writ granted without delay. The court or judge to whom such petition shall be properly presented shall grant the same without delay unless it shall appear from the petition or from the documents annexed that the party applying therefor is prohibited from prosecuting the same.
782.06 History
History: 1979 c. 32 s.
59; Stats. 1979 s. 782.06.
782.07(1)(1) Such writ shall be substantially in the following form:
The state of Wisconsin: To the sheriff, etc. (or A. B.):
You are hereby commanded to have C. D., by you imprisoned and detained, as it is said, together with the time and cause of such imprisonment, (by whatever name the said C. D. shall be called or charged), before [here name the court or judge], at, etc., on, etc. (or immediately after the receipt of the writ), to do and receive what shall then and there be considered concerning the said C. D.
Witness, etc.
782.07(2)
(2) Every such writ shall be made returnable forthwith or at a day certain, as the case may require; when not issued by the court shall be endorsed with a certificate that the same has been allowed, with the date of such allowance, signed by the judge allowing the same.
782.07 History
History: 1979 c. 32 s.
59; Stats. 1979 s. 782.07.
782.08
782.08
Writ, when sufficient. Such writ shall not be disobeyed for any defect in form. It shall be sufficient:
782.08(1)
(1) If the person having the custody of the prisoner is designated, either by name of office, if any, or by the person's name, or if both names are unknown or uncertain the person may be described by an assumed name or title. Anyone who is served with the writ is considered the person to whom it is directed, although it is directed to the person by a wrong name or description or to any other person.
782.08(2)
(2) If the person who is directed to be produced be designated by name, or if the person's name be uncertain or unknown, he or she may be described in any other way so as to designate the person intended.
782.08 History
History: 1979 c. 32 s.
59;
1979 c. 176; Stats. 1979 s. 782.08;
1993 a. 486;
1997 a. 254.
782.09
782.09
Refusal of writ. Any judge who refuses to grant a writ of habeas corpus, when legally applied for, is liable to the prisoner in the sum of $1,000.
782.09 History
History: 1979 c. 32 s.
59;
1979 c. 176,
355; Stats. 1979 s. 782.09.
782.09 Annotation
Comity between circuit courts was not a sufficient reason to refuse to issue a writ but, under the facts of the case, the penalty under this section was inappropriate. J.V. v. Barron,
112 Wis. 2d 256,
332 N.W.2d 796 (1983).
782.09 Annotation
The filing of a petition for a writ with the clerk of courts is a prerequisite to an action against a judge under this section. Maier v. Byrnes,
121 Wis. 2d 258,
358 N.W.2d 833 (Ct. App. 1984).
782.10
782.10
Writ, who may serve. Such writ can only be served by an elector of the state and shall be served as follows:
782.10(1)
(1) By delivering a copy of the same to the person to whom it is directed.
782.10(2)
(2) If such person cannot be found, by being left at the jail or other place in which the prisoner may be confined, with any underofficer or other person of proper age having charge of such prisoner.
782.10(3)
(3) If the person on whom the writ ought to be served hides or refuses admittance to the party attempting to serve the writ, by affixing the copy, in some conspicuous place on the outside of the house or other place where the prisoner is confined.
782.10(4)
(4) The person serving the writ shall make due and prompt return thereof with proof of service.
782.10 History
History: 1979 c. 32 s.
59;
1979 c. 176; Stats. 1979 s. 782.10.
782.11
782.11
Petitioner, when to pay charges. When such writ is directed to any person other than an officer, it may require as a duty to be performed, in order to render the service thereof effectual, that the charges of bringing up such prisoner shall be paid by the petitioner, and in such case the writ shall specify the amount of such charges so to be paid, which shall not exceed the fees allowed by law to sheriffs for similar services.
782.11 History
History: 1979 c. 32 s.
59; Stats. 1979 s. 782.11.
782.12
782.12
Service of writ, when complete. Except where service is made under
s. 782.10 (3), the service of a writ of habeas corpus is not complete until the party serving the writ tenders to the custodian of the prisoner, if an officer, the fees allowed for bringing up the prisoner, nor unless, when required by the officer, the party shall also give the officer a bond in double the sum for which the prisoner is detained, if detained for a specific sum of money, and if not, then in the sum of $1,000, conditioned that the obligor will pay the charges of carrying back the prisoner if remanded and that the prisoner will not escape, either going to or returning from the place to which taken, and if the prisoner is not in the custody of an officer, and the writ requires that the charges of bringing up the prisoner shall be paid by the petitioner, then until the charges have been tendered to the respondent.
782.12 History
History: 1979 c. 32 ss.
59,
92 (11);
1979 c. 176; Stats. 1979 s. 782.12.
782.13
782.13
Return to writ. Whenever a complete service of such writ shall have been made, the person upon whom it was served, having the custody of the prisoner, whether such writ be directed to the person or not, shall obey and make return to such writ and such prisoner shall be produced at the time and place specified therein.
782.13 History
History: 1979 c. 32 s.
59;
1979 c. 176; Stats. 1979 s. 782.13.
782.14
782.14
Return, what to state. The respondent shall state in the return:
782.14(1)
(1) Whether the prisoner is in the respondent's custody or power.
782.14(2)
(2) If the prisoner is in the respondent's custody or power the authority and true cause of such imprisonment, setting forth the same at large.
782.14(3)
(3) If the prisoner be detained by virtue of any written authority a copy thereof shall be annexed to the return and the original shall be produced to the court or judge before whom the same is returnable.
782.14(4)
(4) If the respondent shall have had the prisoner in the respondent's power or custody at any time, but has transferred such custody to another, the return shall state particularly to whom, at what time, for what cause and by what authority such transfer took place. The return must be signed by the person making it and shall be verified by oath.
782.14 History
History: 1979 c. 32 s.
59;
1979 c. 176; Stats. 1979 s. 782.14.
782.15
782.15
Prisoner produced, exception. The respondent shall bring the prisoner, according to the command of such writ, except in the case of sickness as provided in
s. 782.29.
782.15 History
History: 1979 c. 32 ss.
59,
92 (11); Stats. 1979 s. 782.15.
782.16
782.16
Obedience to writ compelled. If any person upon whom such writ shall have been duly served shall refuse or neglect to obey the same, within the time required, and no sufficient excuse shall be shown for such refusal or neglect the court or judge before whom such writ is returnable shall, upon proof of such service, forthwith issue an attachment against such person, directed to the sheriff of any county, commanding the sheriff forthwith to apprehend such person and to bring the person before such court or judge. The person so brought shall be committed to the county jail until making return to such writ and comply with any order that may be made in relation to the prisoner.
782.16 History
History: 1979 c. 32 s.
59;
1979 c. 176; Stats. 1979 s. 782.16.
782.17
782.17
Attachment of sheriff. If a sheriff neglects to make return to such writ the attachment may be directed to any coroner or other person to be designated therein, who shall execute the same; and such sheriff may be committed to the jail of any county other than the sheriff's own.
782.17 History
History: 1979 c. 32 s.
59;
1979 c. 176; Stats. 1979 s. 782.17.
782.18
782.18
Attachment may issue. In case of attachment an order may be issued to the officer or other person to whom such attachment is directed, commanding the officer or person to bring, forthwith, before the court or judge, the party for whose benefit such writ was allowed, who shall thereafter remain in the custody of such officer or other person, until discharged, bailed or remanded. In the execution of such attachment or order, the person executing it may call to the person's aid the power of the county.
782.18 History
History: 1979 c. 32 s.
59;
1979 c. 176; Stats. 1979 s. 782.18.
782.19
782.19
Return may be traversed. The prisoner may move to strike the return or may deny any of the material facts set forth in the return to the writ or allege any fact to show either that the imprisonment is unlawful or that the prisoner is entitled to a discharge, which allegations and denials shall be verified by oath; and the court or judge shall proceed in a summary way to examine into the facts contained in the return and to hear the allegations and proofs of the parties in support of such imprisonment or against the same.
782.19 History
History: Sup. Ct. Order, 67 Wis. 2d 585, 762 (1975);
1975 c. 218;
1979 c. 32 s.
59; Stats. 1979 s. 782.19.
782.20
782.20
When party discharged. If no legal cause be shown for such imprisonment or restraint or for the continuance thereof the court or judge shall make a final order discharging such party from the custody or restraint.
782.20 History
History: 1979 c. 32 s.
59;
1979 c. 176; Stats. 1979 s. 782.20.
782.21
782.21
When remanded. The court or judge must make a final order to remand the prisoner if it shall appear that the prisoner is detained in custody either:
782.21(1)
(1) By virtue of process issued by any court or judge of the United States, in a case where such court or judge has exclusive jurisdiction; or
782.21(2)
(2) By virtue of the final judgment or order of any competent court of civil or criminal jurisdiction or of any execution issued upon such judgment or order; or
782.21(3)
(3) For any contempt, specially and plainly charged in the commitment by some court, officer or body having authority to commit for the contempt so charged; and
782.21(4)
(4) That the time during which such party may be legally detained has not expired.
782.21 History
History: 1979 c. 32 s.
59;
1979 c. 176; Stats. 1979 s. 782.21.
782.22
782.22
Discharge if in custody under process. 782.22(1)
(1) If it appear that the prisoner is in custody by virtue of civil process of any court or issued by any officer in the course of judicial proceedings before the officer such prisoner can be discharged in the following cases only:
782.22(1)(a)
(a) Where the jurisdiction of such court or officer has been exceeded, either as to matter, place, law or person.
782.22(1)(b)
(b) Where, although the original imprisonment was lawful, yet by some act, omission or event which has taken place afterward the prisoner is entitled to be discharged.
