AB383,335,2018
974.03
(1) (b) Within 90 days after a motion under
sub. (1) par. (a) is filed, the
19circuit court shall enter an order either determining the motion or
, for cause, 20extending the time for doing so by not more than 90 days
for cause.
AB383,335,2321
(c) If an order determining a motion under
sub. (1)
par. (a) is not entered timely
22under
sub. (2) par. (b), the motion shall be considered denied and the clerk
of the court 23shall immediately enter an order denying the motion.
AB383,336,3
1(d)
An The rules governing civil appeals govern an appeal from an order
2determining a motion under
sub. (1) par. (a)
is governed by the procedure for civil
3appeals.
AB383,336,54
(e) By filing a motion under
sub. (1) par. (a) the defendant waives his or her
5right to file an appeal or postconviction motion under s. 809.30 (2).
AB383,1095
6Section
1095. 973.195 (1r) (e) of the statutes is amended to read:
AB383,336,117
973.195
(1r) (e) Notwithstanding the confidentiality of victim address
8information obtained under s.
302.1135 (7) (c) 302.113 (9g) (g) 3., a district attorney
9who is required to send notice to a victim under par. (d) may obtain from the clerk
10of the circuit court victim address information that the victim provided to the clerk
11under s.
302.1135 (7) (c). 302.113 (9g) (g) 3.
AB383,1096
12Section
1096. 973.20 (1g) of the statutes is repealed.
AB383,1097
13Section
1097. 973.20 (1r) of the statutes is amended to read:
AB383,337,914
973.20
(1r) When imposing sentence or ordering probation for any crime, other
15than a crime involving conduct that constitutes domestic abuse under s. 813.12 (1)
16(am) or
968.075 969.27 (1) (a), for which the defendant was convicted, the court, in
17addition to any other penalty authorized by law, shall order the defendant to make
18full or partial restitution under this section to any victim of a crime considered at
19sentencing or, if the victim is deceased, to his or her estate, unless the court finds
20substantial reason not to do so and states the reason on the record. When imposing
21sentence or ordering probation for a crime involving conduct that constitutes
22domestic abuse under s. 813.12 (1) (am) or
968.075
969.27 (1) (a) for which the
23defendant was convicted or that was considered at sentencing, the court, in addition
24to any other penalty authorized by law, shall order the defendant to make full or
25partial restitution under this section to any victim of a crime or, if the victim is
1deceased, to his or her estate, unless the court finds that imposing full or partial
2restitution will create an undue hardship on the defendant or victim and describes
3the undue hardship on the record. Restitution ordered under this section is a
4condition of probation, extended supervision, or parole served by the defendant for
5a crime for which the defendant was convicted. After the termination of probation,
6extended supervision, or parole, or if the defendant is not placed on probation,
7extended supervision, or parole, restitution ordered under this section is enforceable
8in the same manner as a judgment in a civil action by the victim named in the order
9to receive restitution or enforced under ch. 785.
AB383,1098
10Section
1098. 973.20 (9m) of the statutes is amended to read:
AB383,337,2111
973.20
(9m) When restitution is ordered, the court shall inquire to see if
12recompense has been made under s.
969.13 (5) (a)
969.42. If recompense has been
13made and the restitution ordered is less than or equal to the recompense, the
14restitution shall be applied to the payment of costs and, if any restitution remains
15after the payment of costs, to the payment of the judgment. If recompense has been
16made and the restitution ordered is greater than the recompense, the victim shall
17receive an amount equal to the amount of restitution less the amount of recompense
18and the balance shall be applied to the payment of costs and, if any restitution
19remains after the payment of costs, to the payment of the judgment. This subsection
20applies without regard to whether the person who paid the recompense is the person
21who is convicted of the crime.
AB383,1099
22Section
1099. 973.20 (11) (a) of the statutes is amended to read:
AB383,338,723
973.20
(11) (a) Except as otherwise provided in this paragraph, the restitution
24order shall require the defendant to deliver the amount of money or property due as
25restitution to the department for transfer to the victim or other person to be
1compensated by a restitution order under this section. If the defendant is not placed
2on probation or sentenced to prison, the court may order that restitution be paid to
3the clerk
of court for transfer to the appropriate person. The court shall impose on
4the defendant a restitution surcharge under ch. 814 equal to 5% of the total amount
5of any restitution, costs, attorney fees, court fees, fines, and surcharges ordered
6under s. 973.05 (1) and imposed under ch. 814, which shall be paid to the department
7or the clerk
of court for administrative expenses under this section.
AB383,1100
8Section
1100. 973.20 (12) (c) of the statutes is amended to read:
AB383,338,129
973.20
(12) (c) If a defendant is subject to more than one order under this
10section and the financial obligations under any order total $50 or less, the
11department or the clerk
of court, whichever is applicable under sub. (11) (a), may pay
12these obligations first.
AB383,1101
13Section
1101. 974.02 of the statutes is amended to read:
AB383,338,23
14974.02 Appeals and postconviction relief in criminal cases Direct
15appeals. (1) A motion for postconviction relief other than under s. 974.06 or 974.07
16(2) by the defendant in a criminal case shall be made in the time and manner
17provided in s. 809.30. An appeal by the The defendant
in a criminal case may appeal 18from a judgment of conviction or from an order denying a postconviction motion or
19from both
. A direct appeal from a judgment of conviction shall be taken in the time
20and manner provided in ss. 808.04 (3) and 809.30
. An appeal of an order or judgment
21on habeas corpus remanding to custody a prisoner committed for trial under s. 970.03
22shall be taken under ss. 808.03 (2) and 809.50, with notice to the attorney general
23and the district attorney and opportunity for them to be heard
to 809.32.
AB383,339,3
1(2) An appellant is not required to file a postconviction motion in the
trial 2circuit court prior to an appeal if the grounds are sufficiency of the evidence or issues
3previously raised.
AB383,1102
4Section
1102. 974.05 (1) (intro.) of the statutes is amended to read:
AB383,339,75
974.05
(1) (intro.) Within the time period specified by s. 808.04 (4) and in the
6manner provided for civil appeals under chs. 808 and 809,
an appeal may be taken
7by the state
from may appeal any
of the following:
AB383,1103
8Section
1103. 974.05 (1) (a), (b), (c) and (d) (intro.), 1. and 2. of the statutes are
9amended to read:
AB383,339,1210
974.05
(1) (a)
Final
A final order or judgment adverse to the state, whether
11following a trial or a plea of guilty or no contest, if the appeal would not be prohibited
12by constitutional protections against double jeopardy.
AB383,339,1413
(b)
Order An order granting postconviction relief under s. 974.02,
974.03, 14974.06, or 974.07.
AB383,339,1615
(c)
Judgment A judgment and sentence or order of probation not authorized by
16law.
AB383,339,1817
(d) (intro.)
Order An order or judgment the substantive effect of which results
18in
any of the following:
AB383,339,1919
1. Quashing an arrest warrant
;.
AB383,339,2020
2. Suppressing evidence
; or.
AB383,1104
21Section
1104. 974.05 (2) of the statutes is amended to read:
AB383,339,2422
974.05
(2) If the defendant appeals or prosecutes a writ of error, the state may
23move to review rulings of which it complains cross-appeal any order, judgment, or
24sentence described in sub. (1) (a) to (d), as provided
by in s. 809.10 (2) (b).
AB383,1105
25Section
1105. 974.05 (3) of the statutes is repealed.
AB383,1106
1Section
1106. 974.06 (title), (1), (2) and (3) (intro.), (a), (b) and (d) of the
2statutes are amended to read:
AB383,340,12
3974.06 (title)
Postconviction
Collateral postconviction procedure. (1) 4After At any time after the time for
direct appeal
or postconviction remedy provided
5in s. 974.02 has expired, a prisoner
who is in custody under sentence of a court
or a
6person convicted and placed with a volunteers in probation program under s. 973.11
7claiming and who claims the right to be released upon the ground that the sentence
8was imposed in violation of the U.S. constitution or the constitution or laws of this
9state, that the court
was without lacked jurisdiction to impose
such the sentence, or
10that the sentence
was in excess of exceeded the maximum authorized by law or is
11otherwise subject to collateral
attack review, may move the court which imposed the
12sentence to vacate, set aside
, or correct the sentence.
AB383,340,15
13(2) A
copy of the motion
for such relief is a part of the original criminal action,
14is not a separate proceeding and may be made at any time under sub. (1) must be
15served on the district attorney.
AB383,340,18
16(2m) A motion under sub. (1) is part of the original criminal action, is not a
17separate proceeding, and may be made at any time. The supreme court may
18prescribe the form of the motion.
AB383,340,21
19(3) (intro.) Unless the motion
under sub. (1) and the files and records of the
20action conclusively show that the
person prisoner is entitled to no relief, the court
21shall
do all of the following:
AB383,340,2322
(a)
Cause a copy of the notice to be served upon
Order the district attorney
who
23shall to file a written response within the time prescribed by the court.
AB383,341,324
(b) If it appears that counsel is necessary and if the
defendant prisoner claims
25or appears to be indigent, refer the
person prisoner to the
appellate division of the
1state public defender for an indigency determination and appointment of counsel
2under ch. 977.
The court shall forward a copy of the motion and any response of the
3district attorney to the state public defender.
AB383,341,114
(d) Determine the issues and make findings of fact and conclusions of law. If
5the court finds that
it rendered the judgment
was rendered without jurisdiction,
or 6that the sentence imposed was not authorized by law or is otherwise open to
7collateral
attack review, or that there has been such a denial or infringement of the
8constitutional rights of the
person prisoner as to render the judgment vulnerable to
9collateral
attack review, the court shall vacate and set
aside the judgment
aside and
10shall discharge the
person prisoner or resentence
him or her or the prisoner, grant
11the prisoner a new trial
, or correct the sentence as may appear appropriate.
AB383,1107
12Section
1107. 974.06 (4) of the statutes is amended to read:
AB383,341,2013
974.06
(4) All grounds for relief available to a
person prisoner under this
14section must be raised in his or her original, supplemental
, or amended motion. Any
15ground finally adjudicated or not so raised, or knowingly, voluntarily
, and
16intelligently waived in the proceeding that resulted in the conviction or sentence or
17in any other proceeding the
person prisoner has taken to secure relief may not be the
18basis for a subsequent motion, unless the court finds a ground for relief asserted
19which that, for sufficient reason
, was not asserted or was inadequately raised in the
20original, supplemental
, or amended motion.
AB383,1108
21Section
1108. 974.06 (5), (6), (7) and (8) of the statutes are amended to read:
AB383,341,2522
974.06
(5) A Subject to s. 974.08, a court may entertain and determine
such 23a motion
under sub. (1) without requiring the production of the prisoner at the
24hearing. The
court may hear the motion
may be heard by telephone or live
25audiovisual means under s. 807.13.
AB383,342,2
1(6) Proceedings under this section shall be considered civil in nature, and the
2burden of proof shall be upon the
person prisoner.
AB383,342,4
3(7) An A prisoner may appeal
may be taken from the an order entered on the
4motion
under sub. (1) as
from if the order were a final judgment.
AB383,342,11
5(8) A
court may not entertain a petition for a writ of habeas corpus or an action
6seeking that remedy
in on behalf of a
person prisoner who is authorized to apply for
7relief by motion under
this section shall not be entertained sub. (1) if it appears that
8the
applicant prisoner has failed to
apply for relief, by file a motion
, to under sub. (1)
9with the court which sentenced the
person prisoner, or that the court has denied the
10person relief motion, unless it also appears that the remedy by motion is inadequate
11or ineffective to test the legality of
his or her
the prisoner's detention.
AB383,1109
12Section
1109. 974.07 (4) (b) of the statutes is amended to read:
AB383,342,2013
974.07
(4) (b) Notwithstanding the limitation on the disclosure of mailing
14addresses from completed information cards submitted by victims under ss. 51.37
15(10) (dx), 301.046 (4) (d), 301.048 (4m) (d), 301.38 (4), 302.105 (4), 304.06 (1) (f),
16304.063 (4), 938.51 (2),
971.17 (6m) (d) 975.62 (4), and 980.11 (4), the department of
17corrections, the parole commission, and the department of health services shall,
18upon request, assist clerks of court in obtaining information regarding the mailing
19address of victims for the purpose of sending copies of motions and notices of hearings
20under par. (a).
AB383,1110
21Section
1110. 974.07 (7) (b) 1. of the statutes is amended to read:
AB383,343,422
974.07
(7) (b) 1. It is reasonably probable that the outcome of the proceedings
23that resulted in the conviction, the finding of not guilty by reason of mental disease
24or defect, or the delinquency adjudication for the offense at issue in the motion under
25sub. (2), or the terms of the sentence, the commitment under
s. 971.17 subch. III of
1ch. 975, or the disposition under ch. 938, would have been more favorable to the
2movant if the results of deoxyribonucleic acid testing had been available before he
3or she was prosecuted, convicted, found not guilty by reason of mental disease or
4defect, or adjudicated delinquent for the offense.
AB383,1111
5Section
1111. 974.07 (9) (a) of the statutes is amended to read:
AB383,343,136
974.07
(9) (a) If a person other than the movant is in custody, as defined in s.
7968.205 968.645 (1) (a), the evidence is relevant to the criminal, delinquency, or
8commitment proceeding that resulted in the person being in custody, the person has
9not been denied deoxyribonucleic acid testing or postconviction relief under this
10section, and the person has not waived his or her right to preserve the evidence under
11s. 165.81 (3), 757.54 (2),
968.205 968.645, or 978.08, the court shall order the evidence
12preserved until all persons entitled to have the evidence preserved are released from
13custody, and the court shall designate who shall preserve the evidence.
AB383,1112
14Section
1112. 974.07 (10) (a) 4. of the statutes is amended to read:
AB383,343,1615
974.07
(10) (a) 4. An order discharging the movant from custody, as defined in
16s.
968.205 968.645 (1) (a), if the movant is in custody.
AB383,1113
17Section
1113. 974.08 (title) of the statutes is created to read:
AB383,343,18
18974.08 (title)
Defendant's presence at postconviction proceedings.
AB383,1114
19Section
1114. 974.08 (1) of the statutes is created to read:
AB383,343,2320
974.08
(1) A defendant has the right to be present at a postconviction
21proceeding when the hearing will address substantial issues of fact as to events in
22which the defendant participated and those issues are supported by more than mere
23allegations.
AB383,1115
24Section
1115. 974.08 (2) and (3) of the statutes are created to read:
AB383,344,6
1974.08
(2) A defendant need not be present at the pronouncement or entry of
2an order granting or denying relief under s. 974.02, 974.03, 974.06, or 974.07. If the
3defendant is not present, the time for appealing the order shall commence after a
4copy has been served upon the defendant's counsel or, if he or she appeared without
5counsel, upon the defendant, except as provided in sub. (3). Service of such an order
6shall be complete upon mailing.
AB383,344,11
7(3) A defendant appearing without counsel shall supply the court with his or
8her current mailing address. If the defendant fails to supply the court with a current
9and accurate mailing address, the defendant's failure to receive a copy of the order
10granting or denying relief shall not be a ground for tolling the time in which an appeal
11must be taken.
AB383,1116
12Section
1116. 974.09 (title) of the statutes is created to read:
AB383,344,13
13974.09 (title)
Release pending appeal.
AB383,1117
14Section
1117. Chapter 975 (title) of the statutes is repealed and recreated to
15read:
AB383,344,1616
chapter 975
AB383,344,1917
mental issues in criminal
18
proceedings: competency and
19
responsibility
AB383,1118
20Section
1118. 975.001 of the statutes is repealed.
AB383,1119
21Section
1119. 975.01 of the statutes is repealed.
AB383,1120
22Section
1120. 975.06 of the statutes is repealed.
AB383,1121
23Section
1121. 975.07 of the statutes is repealed.
AB383,1122
24Section
1122. 975.08 of the statutes is repealed.
AB383,1123
25Section
1123. 975.09 of the statutes is repealed.
AB383,1124
1Section
1124. 975.10 of the statutes is repealed.
AB383,1125
2Section
1125. 975.11 of the statutes is repealed.
AB383,1126
3Section
1126. 975.12 of the statutes is repealed.
AB383,1127
4Section
1127. 975.15 of the statutes is repealed.
AB383,1128
5Section
1128. 975.16 of the statutes is repealed.
AB383,1129
6Section
1129. 975.17 of the statutes is repealed.
AB383,1130
7Section
1130. 975.18 of the statutes is repealed.
AB383,1131
8Section
1131. Subchapter I (title) of chapter 975 [precedes 975.20] of the
9statutes is created to read:
AB383,345,1010
chapter 975
AB383,345,1111
Subchapter I
AB383,345,1212
General provisions
AB383,1132
13Section
1132. 975.20 of the statutes is created to read:
AB383,345,14
14975.20 Definitions. In this chapter:
AB383,345,16
15(1) "Department" means the department of health services, except as otherwise
16expressly provided.
AB383,345,20
17(2) "Not competent to refuse medication or treatment" means that because of
18mental illness, developmental disability, alcoholism, or drug dependency, and after
19the advantages and disadvantages of and alternatives to accepting a particular
20medication or treatment have been explained to a person, one of the following is true:
AB383,345,2221
(a) The person is incapable of expressing an understanding of the advantages,
22disadvantages, and alternatives.
AB383,346,223
(b) The person is substantially incapable of applying an understanding of the
24advantages, disadvantages, and alternatives to his or her mental illness,
1developmental disability, alcoholism, or drug dependence in order to make an
2informed choice as to whether to accept or refuse medication or treatment.
AB383,346,3
3(3) "Physician" has the meaning given in s. 448.01 (5).