SB82: Bill Text

SB82,336,10 (3) Before adjourning concluding the sentencing proceeding, the judge court shall direct the defendant and defendant's trial counsel to sign a form to be entered in the record, indicating that the lawyer trial counsel has counseled the defendant regarding the decision to seek pursue postconviction relief, and that the defendant understands that a notice of intent to pursue postconviction relief must be filed in the trial court within 20 days after sentencing for that the right to pursue postconviction relief to be preserved. The court shall give the defendant a copy of the form.

SB82,336,15 (4) The judge shall direct court shall make appropriate orders to allow the defendant's counsel defendant to confer with the defendant before signing the form, during the proceeding or as soon thereafter as practicable, and may make appropriate orders to allow the defendant to confer with counsel before being transferred to the state prison. The defendant shall be given a copy of the form.

SB82,1091 Section 1091. 973.18 (5) of the statutes is renumbered 973.25 (5).

SB82,1092 Section 1092. 973.19 (title) of the statutes is renumbered 974.03 (title).

SB82,1093 Section 1093. 973.19 (1) (a) of the statutes is renumbered 974.03 (1) (a) and amended to read:

SB82,336,24 974.03 (1) (a) A person defendant sentenced to imprisonment or the intensive sanctions program or ordered to pay a fine who has not requested the preparation of transcripts under s. 809.30 (2) may, within 90 days after the sentence or order or fine is entered imposed, move the circuit court to modify the sentence or the amount of the fine.

SB82,1094 Section 1094. 973.19 (1) (b) of the statutes is renumbered 974.03 (2) and amended to read:

SB82,337,4 974.03 (2) A person defendant who has requested transcripts under s. 809.30 (2) may move for modification of a sentence or fine under s. 809.30 (2) (h).

SB82,1095 Section 1095. 973.19 (2), (3), (4) and (5) of the statutes are renumbered 974.03 (1) (b), (c), (d) and (e) and amended to read:

SB82,337,9 974.03 (1) (b) Within 90 days after a motion under sub. (1) par. (a) is filed, the circuit court shall enter an order either determining the motion or, for cause, extending the time for doing so by not more than 90 days for cause.

SB82,337,12 (c) If an order determining a motion under sub. (1) par. (a) is not entered timely under sub. (2) par. (b), the motion shall be considered denied and the clerk of the court shall immediately enter an order denying the motion.

SB82,337,15 (d) An The rules governing civil appeals govern an appeal from an order determining a motion under sub. (1) par. (a) is governed by the procedure for civil appeals.

SB82,337,17 (e) By filing a motion under sub. (1) par. (a) the defendant waives his or her right to file an appeal or postconviction motion under s. 809.30 (2).

SB82,1096 Section 1096. 973.20 (1g) of the statutes is repealed.

SB82,1097 Section 1097. 973.20 (1r) of the statutes is amended to read:

SB82,338,15 973.20 (1r) When imposing sentence or ordering probation for any crime, other than a crime involving conduct that constitutes domestic abuse under s. 813.12 (1) (am) or 968.075 969.27 (1) (a), for which the defendant was convicted, the court, in addition to any other penalty authorized by law, shall order the defendant to make full or partial restitution under this section to any victim of a crime considered at sentencing or, if the victim is deceased, to his or her estate, unless the court finds substantial reason not to do so and states the reason on the record. When imposing sentence or ordering probation for a crime involving conduct that constitutes domestic abuse under s. 813.12 (1) (am) or 968.075 969.27 (1) (a) for which the defendant was convicted or that was considered at sentencing, the court, in addition to any other penalty authorized by law, shall order the defendant to make full or partial restitution under this section to any victim of a crime or, if the victim is deceased, to his or her estate, unless the court finds that imposing full or partial restitution will create an undue hardship on the defendant or victim and describes the undue hardship on the record. Restitution ordered under this section is a condition of probation, extended supervision, or parole served by the defendant for a crime for which the defendant was convicted. After the termination of probation, extended supervision, or parole, or if the defendant is not placed on probation, extended supervision, or parole, restitution ordered under this section is enforceable in the same manner as a judgment in a civil action by the victim named in the order to receive restitution or enforced under ch. 785.

SB82,1098 Section 1098. 973.20 (9m) of the statutes is amended to read:

SB82,339,2 973.20 (9m) When restitution is ordered, the court shall inquire to see if recompense has been made under s. 969.13 (5) (a) 969.42. If recompense has been made and the restitution ordered is less than or equal to the recompense, the restitution shall be applied to the payment of costs and, if any restitution remains after the payment of costs, to the payment of the judgment. If recompense has been made and the restitution ordered is greater than the recompense, the victim shall receive an amount equal to the amount of restitution less the amount of recompense and the balance shall be applied to the payment of costs and, if any restitution remains after the payment of costs, to the payment of the judgment. This subsection applies without regard to whether the person who paid the recompense is the person who is convicted of the crime.

SB82,1099 Section 1099. 973.20 (11) (a) of the statutes is amended to read:

SB82,339,13 973.20 (11) (a) Except as otherwise provided in this paragraph, the restitution order shall require the defendant to deliver the amount of money or property due as restitution to the department for transfer to the victim or other person to be compensated by a restitution order under this section. If the defendant is not placed on probation or sentenced to prison, the court may order that restitution be paid to the clerk of court for transfer to the appropriate person. The court shall impose on the defendant a restitution surcharge under ch. 814 equal to 5% of the total amount of any restitution, costs, attorney fees, court fees, fines, and surcharges ordered under s. 973.05 (1) and imposed under ch. 814, which shall be paid to the department or the clerk of court for administrative expenses under this section.

SB82,1100 Section 1100. 973.20 (12) (c) of the statutes is amended to read:

SB82,339,18 973.20 (12) (c) If a defendant is subject to more than one order under this section and the financial obligations under any order total $50 or less, the department or the clerk of court, whichever is applicable under sub. (11) (a), may pay these obligations first.

SB82,1101 Section 1101. 974.02 of the statutes is amended to read:

SB82,340,5 974.02 Appeals and postconviction relief in criminal cases Direct appeals. (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 s. 809.30. An appeal by the The defendant in a criminal case may appeal from a judgment of conviction or from an order denying a postconviction motion or from both. A direct appeal from a judgment of conviction shall be taken in the time and manner provided in ss. 808.04 (3) and 809.30 to 809.32. An appeal of an order or judgment on habeas corpus remanding to custody a prisoner committed for trial under s. 970.03 971.042 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.

SB82,340,8 (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.

SB82,1102 Section 1102. 974.05 (1) (intro.) of the statutes is amended to read:

SB82,340,12 974.05 (1) (intro.) Within the time period specified by s. 808.04 (4) and in the manner provided for civil appeals under chs. 808 and 809, an appeal may be taken by the state from may appeal any of the following:

SB82,1103 Section 1103. 974.05 (1) (a), (b), (c) and (d) (intro.), 1. and 2. of the statutes are amended to read:

SB82,340,17 974.05 (1) (a) Final A final order or judgment adverse to the state, whether following a trial or a plea of guilty or no contest, if the appeal would not be prohibited by constitutional protections against double jeopardy.

SB82,340,19 (b) Order An order granting postconviction relief under s. 974.02, 974.03, 974.06, or 974.07.

SB82,340,21 (c) Judgment A judgment and sentence or order of probation not authorized by law.

SB82,340,23 (d) (intro.) Order An order or judgment the substantive effect of which results in any of the following:

SB82,340,24 1. Quashing an arrest warrant;.

SB82,340,25 2. Suppressing evidence; or.

SB82,1104 Section 1104. 974.05 (2) of the statutes is amended to read:

SB82,341,4 974.05 (2) If the defendant appeals or prosecutes a writ of error, the state may move to review rulings of which it complains cross-appeal any order, judgment, or sentence described in sub. (1) (a) to (d), as provided by in s. 809.10 (2) (b).

SB82,1105 Section 1105. 974.05 (3) of the statutes is repealed.

SB82,1106 Section 1106. 974.06 (title), (1), (2) and (3) (intro.), (a), (b) and (d) of the statutes are amended to read:

SB82,341,17 974.06 (title) Postconviction Collateral postconviction procedure. (1) After At any time after the time for direct appeal or postconviction remedy provided in s. 974.02 has expired, a prisoner who is in custody under sentence of a court or a person convicted and placed with a volunteers in probation program under s. 973.11 claiming and who claims the right to be released upon the ground that the sentence was imposed in violation of the U.S. constitution or the constitution or laws of this state, that the court was without lacked jurisdiction to impose such the sentence, or that the sentence was in excess of exceeded the maximum authorized by law or is otherwise subject to collateral attack review, may move the court which imposed the sentence to vacate, set aside, or correct the sentence.

SB82,341,20 (2) A copy of the motion for such relief is a part of the original criminal action, is not a separate proceeding and may be made at any time under sub. (1) must be served on the district attorney.

SB82,341,23 (2m) A motion under sub. (1) is part of the original criminal action, is not a separate proceeding, and may be made at any time. The supreme court may prescribe the form of the motion.

SB82,342,3 (3) (intro.) Unless the motion under sub. (1) and the files and records of the action conclusively show that the person prisoner is entitled to no relief, the court shall do all of the following:

SB82,342,5 (a) Cause a copy of the notice to be served upon Order the district attorney who shall to file a written response within the time prescribed by the court.

SB82,342,10 (b) If it appears that counsel is necessary and if the defendant prisoner claims or appears to be indigent, refer the person prisoner to the appellate division of the state public defender for an indigency determination and appointment of counsel under ch. 977. The court shall forward a copy of the motion and any response of the district attorney to the state public defender.

SB82,342,18 (d) Determine the issues and make findings of fact and conclusions of law. If the court finds that it rendered the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or is otherwise open to collateral attack review, or that there has been such a denial or infringement of the constitutional rights of the person prisoner as to render the judgment vulnerable to collateral attack review, the court shall vacate and set aside the judgment aside and shall discharge the person prisoner or resentence him or her or the prisoner, grant the prisoner a new trial, or correct the sentence as may appear appropriate.

SB82,1107 Section 1107. 974.06 (4) of the statutes is amended to read:

SB82,343,2 974.06 (4) All grounds for relief available to a person prisoner under this section must be raised in his or her original, supplemental, or amended motion. Any ground finally adjudicated or not so raised, or knowingly, voluntarily , and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the person prisoner has taken to secure relief may not be the basis for a subsequent motion, unless the court finds a ground for relief asserted which that, for sufficient reason, was not asserted or was inadequately raised in the original, supplemental, or amended motion.

SB82,1108 Section 1108. 974.06 (5), (6), (7) and (8) of the statutes are amended to read:

SB82,343,7 974.06 (5) A Subject to s. 974.08, a court may entertain and determine such a motion under sub. (1) without requiring the production of the prisoner at the hearing. The court may hear the motion may be heard by telephone or live audiovisual means under s. 807.13.

SB82,343,9 (6) Proceedings under this section shall be considered civil in nature, and the burden of proof shall be upon the person prisoner.

SB82,343,11 (7) An A prisoner may appeal may be taken from the an order entered on the motion under sub. (1) as from if the order were a final judgment.

SB82,343,18 (8) A court may not entertain a petition for a writ of habeas corpus or an action seeking that remedy in on behalf of a person prisoner who is authorized to apply for relief by motion under this section shall not be entertained sub. (1) if it appears that the applicant prisoner has failed to apply for relief, by file a motion , to under sub. (1) with the court which sentenced the person prisoner, or that the court has denied the person relief motion, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his or her the prisoner's detention.

SB82,1109 Section 1109. 974.07 (4) (b) of the statutes is amended to read:

SB82,344,2 974.07 (4) (b) Notwithstanding the limitation on the disclosure of mailing addresses from completed information cards submitted by victims under ss. 51.37 (10) (dx), 301.046 (4) (d), 301.048 (4m) (d), 301.38 (4), 302.105 (4), 304.06 (1) (f), 304.063 (4), 938.51 (2), 971.17 (6m) (d) 975.62 (5), and 980.11 (4), the department of corrections, the parole commission, and the department of health services shall, upon request, assist clerks of court in obtaining information regarding the mailing address of victims for the purpose of sending copies of motions and notices of hearings under par. (a).

SB82,1110 Section 1110. 974.07 (7) (b) 1. of the statutes is amended to read:

SB82,344,11 974.07 (7) (b) 1. It is reasonably probable that the outcome of the proceedings that resulted in the conviction, the finding of not guilty by reason of mental disease or defect, or the delinquency adjudication for the offense at issue in the motion under sub. (2), or the terms of the sentence, the commitment under s. 971.17 subch. III of ch. 975, or the disposition under ch. 938, would have been more favorable to the movant if the results of deoxyribonucleic acid testing had been available before he or she was prosecuted, convicted, found not guilty by reason of mental disease or defect, or adjudicated delinquent for the offense.

SB82,1111 Section 1111. 974.07 (9) (a) of the statutes is amended to read:

SB82,344,20 974.07 (9) (a) If a person other than the movant is in custody, as defined in s. 968.205 968.645 (1) (a), the evidence is relevant to the criminal, delinquency, or commitment proceeding that resulted in the person being in custody, the person has not been denied deoxyribonucleic acid testing or postconviction relief under this section, and the person has not waived his or her right to preserve the evidence under s. 165.81 (3), 757.54 (2), 968.205 968.645, or 978.08, the court shall order the evidence preserved until all persons entitled to have the evidence preserved are released from custody, and the court shall designate who shall preserve the evidence.

SB82,1112 Section 1112. 974.07 (10) (a) 4. of the statutes is amended to read:

SB82,344,23 974.07 (10) (a) 4. An order discharging the movant from custody, as defined in s. 968.205 968.645 (1) (a), if the movant is in custody.

SB82,1113 Section 1113. 974.08 (title) of the statutes is created to read:

SB82,344,25 974.08 (title) Defendant's presence at postconviction proceedings.

SB82,1114 Section 1114. 974.08 (1) of the statutes is created to read:

SB82,345,5 974.08 (1) A defendant has the right to be present at a postconviction proceeding when the hearing will address substantial issues of fact as to events in which the defendant participated and those issues are supported by more than mere allegations.

SB82,1115 Section 1115. 974.08 (2) and (3) of the statutes are created to read:

SB82,345,12 974.08 (2) A defendant need not be present at the pronouncement or entry of an order granting or denying relief under s. 974.02, 974.03, 974.06, or 974.07. If the defendant is not present, the time for appealing the order shall commence after a copy has been served upon the defendant's counsel or, if he or she appeared without counsel, upon the defendant, except as provided in sub. (3). Service of such an order shall be complete upon mailing.

SB82,345,17 (3) A defendant appearing without counsel shall supply the court with his or her current mailing address. If the defendant fails to supply the court with a current and accurate mailing address, the defendant's failure to receive a copy of the order granting or denying relief shall not be a ground for tolling the time in which an appeal must be taken.

SB82,1116 Section 1116. 974.09 (title) of the statutes is created to read:

SB82,345,19 974.09 (title) Release pending appeal.

SB82,1117 Section 1117. Chapter 975 (title) of the statutes is repealed and recreated to read:

SB82,345,22 chapter 975

SB82,345,25 mental issues in criminal proceedings: competency and responsibility

SB82,1118 Section 1118. 975.001 of the statutes is repealed.

SB82,1119 Section 1119. 975.01 of the statutes is repealed.

SB82,1120 Section 1120. 975.06 of the statutes is repealed.

SB82,1121 Section 1121. 975.07 of the statutes is repealed.

SB82,1122 Section 1122. 975.08 of the statutes is repealed.

SB82,1123 Section 1123. 975.09 of the statutes is repealed.

SB82,1124 Section 1124. 975.10 of the statutes is repealed.

SB82,1125 Section 1125. 975.11 of the statutes is repealed.

SB82,1126 Section 1126. 975.12 of the statutes is repealed.

SB82,1127 Section 1127. 975.15 of the statutes is repealed.

SB82,1128 Section 1128. 975.16 of the statutes is repealed.

SB82,1129 Section 1129. 975.17 of the statutes is repealed.

SB82,1130 Section 1130. 975.18 of the statutes is repealed.

SB82,1131 Section 1131. Subchapter I (title) of chapter 975 [precedes 975.20] of the statutes is created to read:

SB82,346,16 chapter 975

SB82,346,17 Subchapter I

SB82,346,18 General provisions