AB460: Bill Text

AB460,12 Section 12. 775.05 (3) and (4) of the statutes are amended to read:

AB460,9,22 775.05 (3) After hearing the evidence on the petition, the claims board Within 5 days after the claims board receives a petition under sub. (2) (a), the department of administration shall refer the petition to the division of hearings and appeals. No later than 30 days after the petition is filed, the department of administration or the office of the prosecutor who was responsible for prosecuting the petitioner may file a written request with the claims board for an evidentiary hearing on the petition. The department of administration shall refer the request to the division within 5 days after the claims board receives the request. If a timely request for a hearing is filed, or if the division concludes that it cannot determine the petitioner's eligibility for compensation without a hearing, the division shall hold a hearing on the petition no later than 60 days after the petition is filed. If no request for a hearing is filed within the time specified in this subsection, and the division is able to determine that the petitioner is eligible for compensation without a hearing, the division shall decide the matter without a hearing, except that the division shall not deny a petition for compensation without affording the petitioner an opportunity for a hearing. The division shall find either that the preponderance of evidence is clear and convincing demonstrates that the petitioner was innocent of the crime for which he or she suffered imprisonment, or that the preponderance of evidence is not clear and convincing does not demonstrate that he or she was innocent.

AB460,9,25 (4) If the claims board division of hearings and appeals finds that the preponderance of evidence demonstrates that the petitioner was innocent and that he or she did not by his or her act or failure to act contribute to bring about the conviction and imprisonment for which he or she seeks compensation, the claims board of the crime for which he or she was imprisoned, the division shall transmit its findings to the claims board. The claims board shall find the amount which will equitably compensate the petitioner, not to exceed $25,000 and at a rate of compensation not greater than $5,000 of $50,000, or the amount determined under sub. (4m) (a), whichever applies, per year or any portion thereof, for the imprisonment. Compensation awarded by the claims board In addition, the claims board shall include find any amount to which the board finds the petitioner is entitled for reasonable, actual attorney fees, together with all costs and disbursements incurred by the petitioner in his or her defense, post-conviction, and compensation proceedings and all fees, surcharges, and restitution paid by the petitioner as a result of his or her arrest and imprisonment. The claims board shall subtract any moneys received by the petitioner under s. 808.085. If the claims board finds that the amount it is able to award find is not an adequate compensation it shall submit a report specifying an amount which it considers adequate to the chief clerk of each house of the legislature, for distribution to the legislature under s. 13.172 (2). The claims board shall, subject to sub. (4g), award the compensation specified in the decision and order disbursement of the award to the petitioner or any other individual who is entitled to receive a payment from the appropriation under s. 20.505 (4) (d), except that the total amount of the award may not exceed $1,000,000.

AB460,13 Section 13. 775.05 (4g) of the statutes is created to read:

AB460,11,5 775.05 (4g) (a) As a condition of eligibility for compensation under sub. (4), a petitioner shall automatically assign to the claims board his or her right to any settlement, judgment, or award that may be obtained against any 3rd party in any federal or state action for damages related to wrongful imprisonment for the crime specified in sub. (2) (a). The petition shall, in itself, constitute an assignment by operation of law. The assignment shall be considered a statutory lien on any settlement, judgment, or award received by the petitioner from a 3rd party in an amount equal to the amount of the settlement, judgment, or award, or the amount of compensation awarded under sub. (4), whichever is less.

AB460,11,10 (b) If a petitioner obtains, before the claims board awards compensation under sub. (4), a final judgment, settlement, or award for damages in a federal or state action related to wrongful imprisonment for the crime specified in sub. (2) (a), the claims board shall subtract the amount of the judgment, settlement, or award from the compensation.

AB460,14 Section 14. 775.05 (4m) and (4r) of the statutes are created to read:

AB460,11,17 775.05 (4m) (a) On April 1 of each year, the claims board shall adjust the amount of yearly compensation specified in sub. (4) to reflect any changes in the U.S. consumer price index for all urban consumers, U.S. city average, as determined by the U.S. department of labor, for the 12-month period ending on the preceding December 31. The board shall publish the adjusted amount so determined in the Wisconsin administrative register.

AB460,11,20 (b) On January 1, 2022, and once every 5 years thereafter, the claims board shall make a recommendation to the legislature as to whether the dollar amount of the maximum award under sub. (4) should be changed.

AB460,11,23 (4r) At any hearing conducted under this section, the petitioner may be represented by counsel of his or her own choosing. The department of administration shall represent the interests of the state.

AB460,15 Section 15. 775.05 (5) of the statutes is amended to read:

AB460,12,4 775.05 (5) The claims board shall keep a complete record of its the proceedings in each case petition under this section and of all the evidence related to the petition. The findings and decision of the division of hearings and appeals and the award of the claims board shall be subject to review as provided in ch. 227.

AB460,16 Section 16. 808.085 of the statutes is created to read:

AB460,12,8 808.085 Wrongful imprisonment; relief. (1) If a court acts under s. 808.08 to release a person from confinement in a prison, the person may petition the court for any or all of the following:

AB460,12,10 (a) A court order directing the department of corrections to create a transition to release plan.

AB460,12,13 (b) A financial assistance award not to exceed 133 percent of the federal poverty level for up to 14 months, or while proceedings under s. 775.05 are pending, whichever is shorter.

AB460,12,16 (c) Sealing of all records related to the case. Records sealed under this section shall be accessible to the person but may not be available for public inspection or through the consolidated court automation program case management system.

AB460,12,20 (2) The court shall, within 10 days after it receives the petition under sub. (1), grant the relief sought if the person's criminal conviction was reversed, set aside, or vacated for reasons not inconsistent with the person's innocence of the crime for which he or she was convicted.

AB460,12,24 (3) If a person who is granted relief under this section is subsequently convicted of the same charges for which he or she was granted relief, or if his or her conviction is reinstated, the person shall repay any financial assistance award granted under this section and all records related to the case shall be unsealed.

AB460,13,6 (4) To the extent it is not contrary to or inconsistent with federal law, financial assistance a person receives pursuant to this section may not be included as income for the purpose of determining whether the person is indigent under rules promulgated under ch. 977 or for the purpose of determining the person's eligibility for any program for which the department of health services or the department of children and families provides services, benefits, or other assistance under ch. 49.

AB460,17 Section 17. 977.05 (4) (jr) of the statutes is created to read:

AB460,13,10 977.05 (4) (jr) At the request of a person determined by the state public defender to be indigent or upon referral of any court, represent the person in proceedings under s. 775.05.

AB460,18 Section 18. 977.05 (4) (jw) of the statutes is created to read:

AB460,13,14 977.05 (4) (jw) At the request of an inmate determined by the state public defender to be indigent or upon referral of any court, represent the person in proceedings under s. 808.085.

AB460,19 Section 19. Nonstatutory provisions.

AB460,14,2 (1) Medical Assistance for wrongfully imprisoned persons. Notwithstanding the eligibility criteria under section 49.471 (4) (a) of the statutes, any individual who receives compensation under section 775.05 of the statutes after the effective date of this subsection is eligible for the Medical Assistance program under section 49.471 of the statutes during the period before January 1, 2017. The department of health services shall request any approval from the federal department of health and human services that is necessary to provide Medical Assistance benefits to those individuals. If federal approval is not necessary or if federal approval is received, the department of health services shall provide benefits under section 49.471 of the statutes to those individuals. If federal approval is not received, the department of health services is not required to provide Medical Assistance benefits to those individuals.

AB460,20 Section 20. Initial applicability.

AB460,14,13 (1) Except as provided in subsections (2) and (3), this act first applies with respect to petitions filed by persons who are released on or after January 1, 1990, from imprisonment for crimes of which they claim to be innocent. If a person was released from imprisonment on or after January 1, 1990, and accepted compensation from this state for wrongful imprisonment prior to the effective date of this subsection, the person may petition for additional compensation. The claims board may, at its discretion, consider the petition and may award compensation to the extent payable under section 775.05 of the statutes notwithstanding any release signed by the claimant as a condition precedent to receiving an initial compensation award.

AB460,14,18 (2) The treatment of section 71.05 (6) (b) 52. of the statutes first applies to taxable years beginning on January 1 of the year in which this subsection takes effect, except that if this subsection takes effect after July 31, section 71.05 (6) (b) 52. of the statutes first applies to taxable years beginning on January 1 of the year following the year in which this subsection takes effect.

AB460,14,20 (3) The treatment of section 775.05 (4g) (a) of the statutes first applies to petitions filed on or after the effective date of this subsection.

AB460,14,21 (End)