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).
AB383,346,4
4(4) "Psychologist" means a person holding a valid license under s. 455.04.
AB383,1133
5Section
1133. Subchapter II (title) of chapter 975 [precedes 975.30] of the
6statutes is created to read:
AB383,346,88
Subchapter II
AB383,1134
10Section
1134. 975.31 (title) of the statutes is created to read:
AB383,346,11
11975.31 (title)
Raising the issue of competency.
AB383,1135
12Section
1135. 975.31 (2) of the statutes is created to read:
AB383,346,1513
975.31
(2) (a) If reason to doubt a defendant's competency to proceed arises
14before judgment, the court shall not order an examination into competency until it
15has found that it is probable that the defendant committed the offense charged.
AB383,346,2316
(b) The finding under par. (a) may be based upon the complaint and material
17providing the factual basis for the complaint, or, if the defendant submits an affidavit
18alleging with particularity that the averments of the complaint are materially false,
19upon the complaint and the evidence presented at a hearing ordered by the court.
20The defendant may call and cross-examine witnesses at a probable cause hearing
21under this section. If the court finds that it is probable that the defendant committed
22the offense charged, the court shall order an examination of the defendant under s.
23975.32.
AB383,347,3
1(c) If the court does not find that it is probable that the defendant committed
2the offense charged, the court shall dismiss the charge without prejudice and release
3the defendant.
AB383,1136
4Section
1136. 975.32 (title) of the statutes is created to read:
AB383,347,5
5975.32 (title)
Competency examination.
AB383,1137
6Section
1137. 975.32 (2) of the statutes is created to read:
AB383,347,107
975.32
(2) Notwithstanding sub. (1), if the parties agree that a previously
8conducted mental examination provides a sufficient basis for the court to make the
9determination under s. 975.34 and the court concurs, a new examination need not
10be ordered.
AB383,1138
11Section
1138. 975.32 (4) of the statutes is created to read:
AB383,347,1312
975.32
(4) If the defendant is in custody, the court may order an inpatient or
13outpatient examination and all of the following apply:
AB383,347,1514
(a) Any outpatient examination for a defendant in custody shall be conducted
15in a jail or locked unit of a facility.
AB383,347,1916
(b) If an inpatient examination is determined by the court to be necessary for
17a defendant in custody, the defendant may be committed to a suitable mental health
18facility. If the examination is to be conducted by the department under par. (c), the
19court shall order the individual to the facility designated by the department.
AB383,348,420
(c) If the court orders a defendant in custody to be examined by the department
21or a department facility, the department shall determine where the examination will
22be conducted, who will conduct the examination, and whether the examination will
23be conducted on an inpatient or outpatient basis. If an outpatient examination is
24begun by or through the department, and the department later determines that
25inpatient examination is necessary, the sheriff shall transport the defendant to the
1inpatient facility designated by the department. In any case under this paragraph
2in which the department determines that an inpatient examination is necessary, the
315-day period under sub. (6) (a) begins upon the arrival of the defendant at the
4inpatient facility.
AB383,1139
5Section
1139. 975.32 (7) of the statutes is created to read:
AB383,348,86
975.32
(7) Days spent in a mental health facility for an inpatient competency
7examination ordered under this section count as days spent in custody under s.
8973.155.
AB383,1140
9Section
1140. 975.32 (10) of the statutes is created to read:
AB383,348,1110
975.32
(10) The court may order additional experts to examine the defendant
11at any stage of the proceedings to determine the defendant's competency to proceed.
AB383,1141
12Section
1141. 975.33 (title) of the statutes is created to read:
AB383,348,13
13975.33 (title)
Examination report.
AB383,1142
14Section
1142. 975.33 (1) (f) of the statutes is created to read:
AB383,348,1915
975.33
(1) (f) If the examiner reports that the defendant is not competent to
16proceed and that the defendant is not likely to become competent within the
17maximum period of commitment, as defined in s. 975.34 (6) (a), the examiner's
18opinion on whether the defendant meets the criteria for commitment under ch. 51
19or 55.
AB383,1143
20Section
1143. 975.34 of the statutes is created to read:
AB383,348,24
21975.34 Competency determination. (1)
Hearing. As soon as practicable
22after receiving the examiner's report under s. 975.33, the court shall hold a hearing
23on the defendant's competency to proceed and, if at issue, on the defendant's
24competency to refuse medication or treatment.
AB383,349,5
1(2) Waiver of hearing. Notwithstanding sub. (1), if the parties agree that a
2hearing is not necessary and the court concurs, the court may make a determination
3on the defendant's competency to proceed and, if relevant, the defendant's
4competency to refuse medication or treatment based on the court-ordered report and
5other information adduced.
AB383,349,7
6(3) Burden of going forward. If a hearing is held under this section, the
7district attorney has the burden of going forward with the evidence.
AB383,349,11
8(4) Burden of persuasion. Regardless of who raised the issue of competency,
9the court may find the defendant competent to proceed only if, after hearing evidence
10or reviewing the reports submitted under s. 975.33, or both, the court finds by the
11greater weight of the evidence that the defendant is competent to proceed.
AB383,349,14
12(5) Resuming proceedings. If the court finds the defendant competent to
13proceed, the court shall enter its finding on the record and shall resume the criminal
14proceedings.
AB383,349,19
15(6) Suspending proceedings; commitment for treatment. (a) In this
16subsection, "maximum period of commitment" means the greatest maximum
17sentence length for any crime for which the defendant is charged, including
18imprisonment authorized by any applicable penalty enhancement statutes, or 12
19months, whichever is less.
AB383,349,2320
(b) If the court does not find by the greater weight of the evidence that the
21defendant is competent to proceed, the court shall find that the defendant is not
22competent, shall enter its finding on the record, shall suspend the criminal
23proceedings, and shall do one of the following:
AB383,350,3
11. If the court finds by the greater weight of the evidence that the defendant
2is not likely to become competent within the maximum period of commitment, the
3court shall order that the defendant be released, except as provided in s. 975.38.
AB383,350,104
2. If the court finds by the greater weight of the evidence that the defendant
5is likely to become competent within the maximum period of commitment without
6inpatient treatment, the court shall order that the defendant be released. The court
7may require the defendant to participate in outpatient treatment, undergo periodic
8reexaminations to determine whether the defendant has become competent to
9proceed, or both, for a period that does not exceed the maximum period of
10commitment.
AB383,350,1311
3. If the court finds by clear and convincing evidence that the defendant is likely
12to become competent within the maximum period of commitment if provided
13appropriate inpatient treatment, proceed under sub. (7).