SB82,341,17
8974.06 (title)
Postconviction
Collateral postconviction procedure. (1) 9After At any time after the time for
direct appeal
or postconviction remedy provided
10in s. 974.02 has expired, a prisoner
who is in custody under sentence of a court
or a
11person convicted and placed with a volunteers in probation program under s. 973.11
12claiming and who claims the right to be released upon the ground that the sentence
13was imposed in violation of the U.S. constitution or the constitution or laws of this
14state, that the court
was without lacked jurisdiction to impose
such the sentence, or
15that the sentence
was in excess of exceeded the maximum authorized by law or is
16otherwise subject to collateral
attack review, may move the court which imposed the
17sentence to vacate, set aside
, or correct the sentence.
SB82,341,20
18(2) A
copy of the motion
for such relief is a part of the original criminal action,
19is not a separate proceeding and may be made at any time under sub. (1) must be
20served on the district attorney.
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21(2m) A motion under sub. (1) is part of the original criminal action, is not a
22separate proceeding, and may be made at any time. The supreme court may
23prescribe the form of the motion.
SB82,342,3
1(3) (intro.) Unless the motion
under sub. (1) and the files and records of the
2action conclusively show that the
person prisoner is entitled to no relief, the court
3shall
do all of the following:
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(a)
Cause a copy of the notice to be served upon
Order the district attorney
who
5shall to file a written response within the time prescribed by the court.
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(b) If it appears that counsel is necessary and if the
defendant prisoner claims
7or appears to be indigent, refer the
person prisoner to the
appellate division of the 8state public defender for an indigency determination and appointment of counsel
9under ch. 977.
The court shall forward a copy of the motion and any response of the
10district attorney to the state public defender.
SB82,342,1811
(d) Determine the issues and make findings of fact and conclusions of law. If
12the court finds that
it rendered the judgment
was rendered without jurisdiction,
or 13that the sentence imposed was not authorized by law or is otherwise open to
14collateral
attack review, or that there has been such a denial or infringement of the
15constitutional rights of the
person prisoner as to render the judgment vulnerable to
16collateral
attack review, the court shall vacate and set
aside the judgment
aside and
17shall discharge the
person prisoner or resentence
him or her or the prisoner, grant
18the prisoner a new trial
, or correct the sentence as may appear appropriate.
SB82,1107
19Section
1107. 974.06 (4) of the statutes is amended to read:
SB82,343,220
974.06
(4) All grounds for relief available to a
person prisoner under this
21section must be raised in his or her original, supplemental
, or amended motion. Any
22ground finally adjudicated or not so raised, or knowingly, voluntarily
, and
23intelligently waived in the proceeding that resulted in the conviction or sentence or
24in any other proceeding the
person prisoner has taken to secure relief may not be the
25basis for a subsequent motion, unless the court finds a ground for relief asserted
1which that, for sufficient reason
, was not asserted or was inadequately raised in the
2original, supplemental
, or amended motion.
SB82,1108
3Section
1108. 974.06 (5), (6), (7) and (8) of the statutes are amended to read:
SB82,343,74
974.06
(5) A Subject to s. 974.08, a court may entertain and determine
such 5a motion
under sub. (1) without requiring the production of the prisoner at the
6hearing. The
court may hear the motion
may be heard by telephone or live
7audiovisual means under s. 807.13.
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8(6) Proceedings under this section shall be considered civil in nature, and the
9burden of proof shall be upon the
person prisoner.
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10(7) An A prisoner may appeal
may be taken from the an order entered on the
11motion
under sub. (1) as
from if the order were a final judgment.
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12(8) A
court may not entertain a petition for a writ of habeas corpus or an action
13seeking that remedy
in on behalf of a
person prisoner who is authorized to apply for
14relief by motion under
this section shall not be entertained sub. (1) if it appears that
15the
applicant prisoner has failed to
apply for relief, by file a motion
, to under sub. (1)
16with the court which sentenced the
person prisoner, or that the court has denied the
17person relief motion, unless it also appears that the remedy by motion is inadequate
18or ineffective to test the legality of
his or her
the prisoner's detention.
SB82,1109
19Section
1109. 974.07 (4) (b) of the statutes is amended to read:
SB82,344,220
974.07
(4) (b) Notwithstanding the limitation on the disclosure of mailing
21addresses from completed information cards submitted by victims under ss. 51.37
22(10) (dx), 301.046 (4) (d), 301.048 (4m) (d), 301.38 (4), 302.105 (4), 304.06 (1) (f),
23304.063 (4), 938.51 (2),
971.17 (6m) (d) 975.62 (5), and 980.11 (4), the department of
24corrections, the parole commission, and the department of health services shall,
25upon request, assist clerks of court in obtaining information regarding the mailing
1address of victims for the purpose of sending copies of motions and notices of hearings
2under par. (a).
SB82,1110
3Section
1110. 974.07 (7) (b) 1. of the statutes is amended to read:
SB82,344,114
974.07
(7) (b) 1. It is reasonably probable that the outcome of the proceedings
5that resulted in the conviction, the finding of not guilty by reason of mental disease
6or defect, or the delinquency adjudication for the offense at issue in the motion under
7sub. (2), or the terms of the sentence, the commitment under
s. 971.17 subch. III of
8ch. 975, or the disposition under ch. 938, would have been more favorable to the
9movant if the results of deoxyribonucleic acid testing had been available before he
10or she was prosecuted, convicted, found not guilty by reason of mental disease or
11defect, or adjudicated delinquent for the offense.
SB82,1111
12Section
1111. 974.07 (9) (a) of the statutes is amended to read:
SB82,344,2013
974.07
(9) (a) If a person other than the movant is in custody, as defined in s.
14968.205 968.645 (1) (a), the evidence is relevant to the criminal, delinquency, or
15commitment proceeding that resulted in the person being in custody, the person has
16not been denied deoxyribonucleic acid testing or postconviction relief under this
17section, and the person has not waived his or her right to preserve the evidence under
18s. 165.81 (3), 757.54 (2),
968.205 968.645, or 978.08, the court shall order the evidence
19preserved until all persons entitled to have the evidence preserved are released from
20custody, and the court shall designate who shall preserve the evidence.
SB82,1112
21Section
1112. 974.07 (10) (a) 4. of the statutes is amended to read:
SB82,344,2322
974.07
(10) (a) 4. An order discharging the movant from custody, as defined in
23s.
968.205 968.645 (1) (a), if the movant is in custody.
SB82,1113
24Section
1113. 974.08 (title) of the statutes is created to read:
SB82,344,25
25974.08 (title)
Defendant's presence at postconviction proceedings.
SB82,1114
1Section
1114. 974.08 (1) of the statutes is created to read:
SB82,345,52
974.08
(1) A defendant has the right to be present at a postconviction
3proceeding when the hearing will address substantial issues of fact as to events in
4which the defendant participated and those issues are supported by more than mere
5allegations.
SB82,1115
6Section
1115. 974.08 (2) and (3) of the statutes are created to read:
SB82,345,127
974.08
(2) A defendant need not be present at the pronouncement or entry of
8an order granting or denying relief under s. 974.02, 974.03, 974.06, or 974.07. If the
9defendant is not present, the time for appealing the order shall commence after a
10copy has been served upon the defendant's counsel or, if he or she appeared without
11counsel, upon the defendant, except as provided in sub. (3). Service of such an order
12shall be complete upon mailing.
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13(3) A defendant appearing without counsel shall supply the court with his or
14her current mailing address. If the defendant fails to supply the court with a current
15and accurate mailing address, the defendant's failure to receive a copy of the order
16granting or denying relief shall not be a ground for tolling the time in which an appeal
17must be taken.
SB82,1116
18Section
1116. 974.09 (title) of the statutes is created to read:
SB82,345,19
19974.09 (title)
Release pending appeal.
SB82,1117
20Section
1117. Chapter 975 (title) of the statutes is repealed and recreated to
21read:
SB82,345,2222
chapter 975
SB82,345,2523
mental issues in criminal
24
proceedings: competency and
25
responsibility
SB82,1118
1Section
1118. 975.001 of the statutes is repealed.
SB82,1119
2Section
1119. 975.01 of the statutes is repealed.
SB82,1120
3Section
1120. 975.06 of the statutes is repealed.
SB82,1121
4Section
1121. 975.07 of the statutes is repealed.
SB82,1122
5Section
1122. 975.08 of the statutes is repealed.
SB82,1123
6Section
1123. 975.09 of the statutes is repealed.
SB82,1124
7Section
1124. 975.10 of the statutes is repealed.
SB82,1125
8Section
1125. 975.11 of the statutes is repealed.
SB82,1126
9Section
1126. 975.12 of the statutes is repealed.
SB82,1127
10Section
1127. 975.15 of the statutes is repealed.
SB82,1128
11Section
1128. 975.16 of the statutes is repealed.
SB82,1129
12Section
1129. 975.17 of the statutes is repealed.
SB82,1130
13Section
1130. 975.18 of the statutes is repealed.
SB82,1131
14Section
1131. Subchapter I (title) of chapter 975 [precedes 975.20] of the
15statutes is created to read:
SB82,346,1616
chapter 975
SB82,346,1717
Subchapter I
SB82,346,1818
General provisions
SB82,1132
19Section
1132. 975.20 of the statutes is created to read:
SB82,346,20
20975.20 Definitions. In this chapter:
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21(1) "Department" means the department of health services, except as otherwise
22expressly provided.
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23(2) "Not competent to refuse medication or treatment" means that because of
24mental illness, developmental disability, alcoholism, or drug dependency, and after
1the advantages and disadvantages of and alternatives to accepting a particular
2medication or treatment have been explained to a person, one of the following is true:
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(a) The person is incapable of expressing an understanding of the advantages,
4disadvantages, and alternatives.
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(b) The person is substantially incapable of applying an understanding of the
6advantages, disadvantages, and alternatives to his or her mental illness,
7developmental disability, alcoholism, or drug dependence in order to make an
8informed choice as to whether to accept or refuse medication or treatment.
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9(3) "Physician" has the meaning given in s. 448.01 (5).
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10(4) "Psychologist" means a person holding a valid license under s. 455.04.
SB82,1133
11Section
1133. Subchapter II (title) of chapter 975 [precedes 975.30] of the
12statutes is created to read:
SB82,347,1313
chapter 975
SB82,347,1414
Subchapter II
SB82,1134
16Section
1134. 975.31 (title) of the statutes is created to read:
SB82,347,17
17975.31 (title)
Raising the issue of competency.
SB82,1135
18Section
1135. 975.31 (4) of the statutes is created to read:
SB82,347,2019
975.31
(4) If competency is raised, the court may order that a guardian ad litem
20be appointed.
SB82,1136
21Section
1136. 975.32 (title) of the statutes is created to read:
SB82,347,22
22975.32 (title)
Competency examination.
SB82,1137
23Section
1137. 975.32 (2) of the statutes is created to read:
SB82,348,224
975.32
(2) Notwithstanding sub. (1), if the parties agree that a previously
25conducted mental examination provides a sufficient basis for the court to make the
1determination under s. 975.34 and the court concurs, a new examination need not
2be ordered.
SB82,1138
3Section
1138. 975.32 (4) of the statutes is created to read:
SB82,348,54
975.32
(4) If the defendant is in custody, the court may order an inpatient or
5outpatient examination and all of the following apply:
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(a) Any outpatient examination for a defendant in custody shall be conducted
7in a jail or locked unit of a facility.
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(b) If an inpatient examination is determined by the court to be necessary for
9a defendant in custody, the defendant may be committed to a suitable mental health
10facility. If the examination is to be conducted by the department under par. (c), the
11court shall order the individual to the facility designated by the department.
SB82,348,2112
(c) If the court orders a defendant in custody to be examined by the department
13or a department facility, the department shall determine where the examination will
14be conducted, who will conduct the examination, and whether the examination will
15be conducted on an inpatient or outpatient basis. If an outpatient examination is
16begun by or through the department, and the department later determines that
17inpatient examination is necessary, the sheriff shall transport the defendant to the
18inpatient facility designated by the department. In any case under this paragraph
19in which the department determines that an inpatient examination is necessary, the
2015-day period under sub. (6) (a) begins upon the arrival of the defendant at the
21inpatient facility.
SB82,1139
22Section
1139. 975.32 (7) of the statutes is created to read:
SB82,348,2523
975.32
(7) Days spent in a mental health facility for an inpatient competency
24examination ordered under this section count as days spent in custody under s.
25973.155.
SB82,1140
1Section
1140. 975.32 (10) of the statutes is created to read:
SB82,349,32
975.32
(10) The court may order additional experts to examine the defendant
3at any stage of the proceedings to determine the defendant's competency to proceed.
SB82,1141
4Section
1141. 975.33 (title) of the statutes is created to read:
SB82,349,5
5975.33 (title)
Examination report.
SB82,1142
6Section
1142. 975.33 (1) (f) and (3) of the statutes are created to read:
SB82,349,117
975.33
(1) (f) If the examiner reports that the defendant is not competent to
8proceed and that the defendant is not likely to become competent within the
9maximum period of commitment, as defined in s. 975.34 (6) (a), the examiner's
10opinion on whether the defendant meets the criteria for commitment under ch. 51
11or 55.
SB82,349,13
12(3) If competency is raised, the court may order that a guardian ad litem be
13appointed.
SB82,1143
14Section
1143. 975.34 of the statutes is created to read:
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15975.34 Competency determination. (1) Hearing. As soon as practicable
16after receiving the examiner's report under s. 975.33, the court shall hold a hearing
17on the defendant's competency to proceed and, if at issue, on the defendant's
18competency to refuse medication or treatment.
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19(2) Waiver of hearing. Notwithstanding sub. (1), if the parties agree that a
20hearing is not necessary and the court concurs, the court may make a determination
21on the defendant's competency to proceed and, if relevant, the defendant's
22competency to refuse medication or treatment based on the court-ordered report and
23other information adduced.
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24(3) Burden of going forward. If a hearing is held under this section, the
25district attorney has the burden of going forward with the evidence.