SB82: Bill Text

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SB82,1105 Section 1105. 974.05 (3) of the statutes is repealed.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

SB82,1132 Section 1132. 975.20 of the statutes is created to read:

SB82,346,20 975.20 Definitions. In this chapter:

SB82,346,22 (1) "Department" means the department of health services, except as otherwise expressly provided.

SB82,347,2 (2) "Not competent to refuse medication or treatment" means that because of mental illness, developmental disability, alcoholism, or drug dependency, and after the advantages and disadvantages of and alternatives to accepting a particular medication or treatment have been explained to a person, one of the following is true:

SB82,347,4 (a) The person is incapable of expressing an understanding of the advantages, disadvantages, and alternatives.

SB82,347,8 (b) The person is substantially incapable of applying an understanding of the advantages, disadvantages, and alternatives to his or her mental illness, developmental disability, alcoholism, or drug dependence in order to make an informed choice as to whether to accept or refuse medication or treatment.

SB82,347,9 (3) "Physician" has the meaning given in s. 448.01 (5).

SB82,347,10 (4) "Psychologist" means a person holding a valid license under s. 455.04.

SB82,1133 Section 1133. Subchapter II (title) of chapter 975 [precedes 975.30] of the statutes is created to read:

SB82,347,13 chapter 975

SB82,347,14 Subchapter II

SB82,347,15 competency

SB82,1134 Section 1134. 975.31 (title) of the statutes is created to read:

SB82,347,17 975.31 (title) Raising the issue of competency.

SB82,1135 Section 1135. 975.31 (4) of the statutes is created to read:

SB82,347,20 975.31 (4) If competency is raised, the court may order that a guardian ad litem be appointed.

SB82,1136 Section 1136. 975.32 (title) of the statutes is created to read:

SB82,347,22 975.32 (title) Competency examination.

SB82,1137 Section 1137. 975.32 (2) of the statutes is created to read:

SB82,348,2 975.32 (2) Notwithstanding sub. (1), if the parties agree that a previously conducted mental examination provides a sufficient basis for the court to make the determination under s. 975.34 and the court concurs, a new examination need not be ordered.

SB82,1138 Section 1138. 975.32 (4) of the statutes is created to read:

SB82,348,5 975.32 (4) If the defendant is in custody, the court may order an inpatient or outpatient examination and all of the following apply:

SB82,348,7 (a) Any outpatient examination for a defendant in custody shall be conducted in a jail or locked unit of a facility.

SB82,348,11 (b) If an inpatient examination is determined by the court to be necessary for a defendant in custody, the defendant may be committed to a suitable mental health facility. If the examination is to be conducted by the department under par. (c), the court shall order the individual to the facility designated by the department.

SB82,348,21 (c) If the court orders a defendant in custody to be examined by the department or a department facility, the department shall determine where the examination will be conducted, who will conduct the examination, and whether the examination will be conducted on an inpatient or outpatient basis. If an outpatient examination is begun by or through the department, and the department later determines that inpatient examination is necessary, the sheriff shall transport the defendant to the inpatient facility designated by the department. In any case under this paragraph in which the department determines that an inpatient examination is necessary, the 15-day period under sub. (6) (a) begins upon the arrival of the defendant at the inpatient facility.

SB82,1139 Section 1139. 975.32 (7) of the statutes is created to read:

SB82,348,25 975.32 (7) Days spent in a mental health facility for an inpatient competency examination ordered under this section count as days spent in custody under s. 973.155.

SB82,1140 Section 1140. 975.32 (10) of the statutes is created to read:

SB82,349,3 975.32 (10) The court may order additional experts to examine the defendant at any stage of the proceedings to determine the defendant's competency to proceed.

SB82,1141 Section 1141. 975.33 (title) of the statutes is created to read:

SB82,349,5 975.33 (title) Examination report.

SB82,1142 Section 1142. 975.33 (1) (f) and (3) of the statutes are created to read:

SB82,349,11 975.33 (1) (f) If the examiner reports that the defendant is not competent to proceed and that the defendant is not likely to become competent within the maximum period of commitment, as defined in s. 975.34 (6) (a), the examiner's opinion on whether the defendant meets the criteria for commitment under ch. 51 or 55.

SB82,349,13 (3) If competency is raised, the court may order that a guardian ad litem be appointed.

SB82,1143 Section 1143. 975.34 of the statutes is created to read: