SB82: Bill Text

SB82,326 Section 326. 967.01 of the statutes is amended to read:

SB82,107,19 967.01 Title and effective date. Chapters 967 to 979 may be referred to as the criminal procedure code and shall be interpreted as a unit. Chapters 967 to 979 shall govern all criminal proceedings and is effective on July 1, 1970. Chapters 967 to 979 apply in all prosecutions commenced on or after that date. Prosecutions commenced prior to July 1, 1970, shall be governed by the law existing prior thereto.

SB82,327 Section 327. 967.02 (title) of the statutes is repealed.

SB82,328 Section 328. 967.02 (intro.) of the statutes is renumbered 967.025 (intro.).

SB82,329 Section 329. 967.02 (1) of the statutes is renumbered 967.025 (4) and amended to read:

SB82,107,25 967.025 (4) "Clerk" means the clerk of circuit court of the county including and includes the clerk's deputies.

SB82,330 Section 330. 967.02 (2) of the statutes is renumbered 967.025 (9) and amended to read:

SB82,108,4 967.025 (9) "Department" means the department of corrections, except as provided in ss. 971.14 and 975.001 s. 975.20 (1) for purposes of ch. 975.

SB82,331 Section 331. 967.02 (3) and (4) of the statutes are repealed.

SB82,332 Section 332. 967.02 (5) of the statutes is renumbered 967.025 (13).

SB82,333 Section 333. 967.02 (6) of the statutes is renumbered 967.025 (12) and amended to read:

SB82,108,10 967.025 (12) "Judge" means judge of a the court of record and includes a court commissioner acting within the scope of authority conferred under s. 757.69.

SB82,334 Section 334. 967.02 (7) of the statutes is renumbered 967.025 (6) and amended to read:

SB82,108,15 967.025 (6) "Court" means the circuit court unless otherwise indicated and includes a court commissioner acting within the scope of authority conferred under s. 757.69.

SB82,335 Section 335. 967.02 (8) of the statutes is repealed.

SB82,336 Section 336. 967.025 (title) of the statutes is created to read:

SB82,108,18 967.025 (title) Definitions.

SB82,337 Section 337. 967.025 (2) of the statutes is created to read:

SB82,108,21 967.025 (2) "Bond" means a promise by a person in custody to appear in court as required and to comply with other conditions.

SB82,338 Section 338. 967.025 (3) of the statutes is created to read:

SB82,108,24 967.025 (3) "Citation" means a directive, issued by a law enforcement officer, that a person appear in court or the district attorney's office.

SB82,339 Section 339. 967.025 (5) of the statutes is created to read:

SB82,109,4 967.025 (5) "Complaint" or "criminal complaint" means the written statement of the essential facts constituting the crime charged that is issued by a district attorney. "Complaint" or "criminal complaint" includes a citation endorsed by a district attorney under s. 969.24 (5).

SB82,340 Section 340. 967.025 (7) of the statutes is created to read:

SB82,109,8 967.025 (7) "Crime" means conduct that is prohibited by state law and punishable by fine or imprisonment or both. Conduct punishable only by a forfeiture is not a crime.

SB82,341 Section 341. 967.025 (8) of the statutes is created to read:

SB82,109,11 967.025 (8) "Crime considered at sentencing" means any crime for which the defendant was convicted and any read-in crime.

SB82,342 Section 342. 967.025 (10) of the statutes is created to read:

SB82,109,16 967.025 (10) "District attorney" includes any duly qualified deputies and assistants and includes a special prosecutor under s. 978.045, a person assisting under s. 978.05 (8) (b), and the attorney general in cases in which he or she is authorized to investigate or prosecute.

SB82,343 Section 343. 967.025 (11) of the statutes is created to read:

SB82,109,22 967.025 (11) "Felony" means a crime punishable by imprisonment in the Wisconsin state prisons, but does not include a crime that is punishable by imprisonment in prison only as a result of the application of a penalty increase provision that does not specifically provide that application of the penalty increase makes the crime a felony.

SB82,344 Section 344. 967.025 (14) of the statutes is created to read:

SB82,109,24 967.025 (14) "Misdemeanor" means a crime other than a felony.

SB82,345 Section 345. 967.025 (15) of the statutes is created to read:

SB82,110,1 967.025 (15) "Motion" means an application for an order.

SB82,346 Section 346. 967.025 (16) of the statutes is created to read:

SB82,110,6 967.025 (16) "Read-in crime" means any crime that is uncharged or that is dismissed as part of a plea agreement, that the defendant agrees to have considered by the court at the time of sentencing, and that the court considers at the time of sentencing the defendant for the crime for which the defendant was convicted.

SB82,347 Section 347. 967.025 (17) of the statutes is created to read:

SB82,110,9 967.025 (17) "Sentencing" means the imposition of a sentence, fine, or probation.

SB82,348 Section 348. 967.03 of the statutes is repealed.

SB82,349 Section 349. 967.04 (title), (1), (2), (3), (4), (5) and (6) of the statutes are renumbered 967.21 (title), (1), (2), (3), (4), (5) and (6), and 967.21 (title), (1) and (4) (a), as renumbered, are amended to read:

SB82,110,25 967.21 (title) Depositions in criminal proceedings generally. (1) Circumstance under which permitted. If it appears that a prospective witness may be unable to attend or prevented from attending a criminal trial or hearing, that the prospective witness's testimony is material and that it is necessary to take the prospective witness's deposition in order to prevent a failure of justice, the court at any time after the filing of an indictment or information may upon motion and notice to the parties order that the prospective witness's testimony be taken by deposition and that any designated books, papers, documents, or tangible objects, not privileged, be produced at the same time and place. If a witness is committed pursuant to s. 969.01 (3) 969.52, the court shall direct that the witness's deposition be taken upon notice to the parties. After the deposition has been subscribed, the court shall discharge the witness.

SB82,111,6 (4) (a) If the state or a witness procures such an order under sub. (1), the notice shall inform the defendant that the defendant is required to personally attend at the taking of the deposition and that the defendant's failure so to do is a waiver of the defendant's right to face the witness whose deposition is to be taken. Failure to attend shall constitute a waiver unless the defendant was physically unable to attend.

SB82,350 Section 350. 967.04 (7) (a) of the statutes is renumbered 967.22 (1) and amended to read:

SB82,111,14 967.22 (1) Circumstance under which permitted. In any criminal prosecution or any proceeding under ch. 48 or 938, any party may move the court to order that a deposition of a child who has been or is likely to be called as a witness be taken by audiovisual means. Upon notice and hearing, the court may issue an order for such a deposition if the trial or hearing in which the child may be called will commence before one of the following:

SB82,111,15 (a) Prior to the The child's 12th birthday; or.

SB82,111,18 (b) Prior to the The child's 16th birthday and if the court finds under sub. (2) that the interests of justice warrant that the child's testimony be prerecorded for use at the trial or hearing under par. (b).

SB82,351 Section 351. 967.04 (7) (b) of the statutes is renumbered 967.22 (2), and 967.22 (2) (intro.), (a), (c), (f) and (g), as renumbered, are amended to read:

SB82,111,23 967.22 (2) Determining interests of justice. (intro.) Among the factors which that the court may consider in determining the interests of justice are any of the following:

SB82,112,3 (a) The child's chronological age, level of development and capacity to comprehend the significance of the events about which the child will testify and to verbalize about them.

SB82,112,8 (c) Whether the events about which the child will testify constituted criminal or antisocial conduct against the child or a person with whom the child had a close emotional relationship and, if the conduct constituted a battery or a sexual assault, its duration and the extent of physical or emotional injury thereby caused by the battery or sexual assault.

SB82,112,10 (f) The child's behavior at or reaction to previous interviews concerning the events involved about which the child will testify.

SB82,112,16 (g) Whether the child blames himself or herself for the events involved about which the child will testify or has ever been told by any person not to disclose them; whether the child's prior reports to associates or authorities of the events have been disbelieved or not acted upon; and the child's subjective belief regarding what consequences to himself or herself, or persons with whom the child has a close emotional relationship, will ensue from providing testimony.

SB82,352 Section 352. 967.04 (8) of the statutes is renumbered 967.22 (3), and 967.22 (3) (a) and (b) (intro.) and 4., as renumbered, are amended to read:

SB82,113,2 967.22 (3) Procedures. (a) If the court orders a deposition under sub. (7) (1), the judge shall preside at the taking of the deposition and enforce compliance with the applicable provisions of ss. 885.44 to 885.47. Notwithstanding s. 885.44 (5), counsel may make objections and the judge shall make rulings thereon as at trial. The clerk of court shall keep the certified original recording of a deposition taken under sub. (7) (1) in a secure place. No person may inspect or copy the deposition except by order of the court upon a showing that inspection or copying is required for editing under s. 885.44 (12) or for the investigation, prosecution, or defense of the action in which it was authorized or the provision of services to the child.

SB82,113,4 (b) (intro.) If the court orders that a deposition be taken by audiovisual means under sub. (7) (1), the court shall do all of the following:

SB82,113,9 4. Determine that the child understands that it is wrong to tell a lie and will testify truthfully if   If the child's developmental level or verbal skills are such that administration of an oath or affirmation in the usual form would be inappropriate, determine that the child understands that it is wrong to tell a lie and will testify truthfully.

SB82,353 Section 353. 967.04 (9) of the statutes is renumbered 967.22 (4) and amended to read:

SB82,113,20 967.22 (4) Use at trial, hearing, or other proceeding.   In any criminal prosecution or juvenile fact-finding hearing under s. 48.31 or 938.31, the court may admit into evidence a recorded deposition taken under subs. (7) and (8) this section without an additional hearing under s. 908.08. In any proceeding under s. 302.113 (9) (am), 302.114 (9) (am), 304.06 (3), or 973.10 (2), the hearing examiner may order that a deposition be taken by audiovisual means and preside at the taking of the deposition using the procedure provided in subs. (7) and (8) this section and may admit the recorded deposition into evidence without an additional hearing under s. 908.08.

SB82,354 Section 354. 967.04 (10) of the statutes is renumbered 967.22 (5) and amended to read:

SB82,114,5 967.22 (5) Subsequent testimony. If a court or hearing examiner admits a recorded deposition into evidence under sub. (9) (4), the child may not be called as a witness at the proceeding in which it was admitted unless the court or hearing examiner so orders upon a showing that additional testimony by the child is required in the interest of fairness for reasons neither known nor with reasonable diligence discoverable at the time of the deposition by the party seeking to call the child. The testimony of a child who is required to testify under this subsection may be taken in accordance with s. 972.11 (2m) 972.20, if applicable.

SB82,355 Section 355. 967.05 (title) of the statutes is renumbered 970.06 (title) and amended to read:

SB82,114,8 970.06 (title) Methods of commencing prosecution.

SB82,356 Section 356. 967.05 (1) (intro.) and (a) of the statutes are consolidated, renumbered 970.06 (1) and amended to read:

SB82,114,12 970.06 (1) A prosecution may be is commenced by the filing of: (a) A a complaint;.

SB82,357 Section 357. 967.05 (1) (b) and (c) of the statutes are repealed.

SB82,358 Section 358. 967.05 (2) and (3) of the statutes are repealed.

SB82,359 Section 359. 967.055 of the statutes is renumbered 970.25, and 970.25 (2) (a) and (b), as renumbered, are amended to read:

SB82,115,11 970.25 (2) (a) Notwithstanding s. 971.29 970.09, if the prosecutor seeks to dismiss or amend a charge under s. 346.63 (1) or (5) or a local ordinance in conformity therewith, or s. 346.63 (2) or (6) or 940.25, or s. 940.09 where the offense involved the use of a vehicle or an improper refusal under s. 343.305, the prosecutor shall apply to the court. The application shall state the reasons for the proposed amendment or dismissal. The court may approve the application only if the court finds that the proposed amendment or dismissal is consistent with the public's interest in deterring the operation of motor vehicles by persons who are under the influence of an intoxicant, a controlled substance, a controlled substance analog or any combination of an intoxicant, controlled substance and controlled substance analog, under the influence of any other drug to a degree which renders him or her incapable of safely driving, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of safely driving, in deterring the operation of motor vehicles by persons with a detectable amount of a restricted controlled substance in his or her blood, or in deterring the operation of commercial motor vehicles by persons with an alcohol concentration of 0.04 or more. The court may not approve an application to amend the vehicle classification from a commercial motor vehicle to a noncommercial motor vehicle unless there is evidence in the record that the motor vehicle being operated by the defendant at the time of his or her arrest was not a commercial motor vehicle.

SB82,116,2 (b) Notwithstanding s. 971.29 970.09, if the prosecutor seeks to dismiss or amend a charge under s. 30.681 (1) or a local ordinance in conformity therewith, a charge under s. 30.681 (2), a charge under s. 30.684 (5) or a local ordinance in conformity therewith or a charge under s. 940.09 or 940.25 if the offense involved the use of a motorboat, except a sailboat operating under sail alone, the prosecutor shall apply to the court. The application shall state the reasons for the proposed amendment or dismissal. The court may approve the application only if the court finds that the proposed amendment or dismissal is consistent with the public's interest in deterring the operation of motorboats by persons who are under the influence of an intoxicant, a controlled substance, a controlled substance analog or any combination of an intoxicant, controlled substance and controlled substance analog, under the influence of any other drug to a degree which renders him or her incapable of operating a motorboat safely, or under the combined influence of an intoxicant and any other drug to a degree which renders him or her incapable of operating a motorboat safely.

SB82,360 Section 360. 967.057 of the statutes is renumbered 970.15 (6).

SB82,361 Section 361. 967.06 (title) of the statutes is repealed.

SB82,362 Section 362. 967.06 (1) and (2) (a) of the statutes are consolidated, renumbered 971.013 and amended to read:

SB82,116,20 971.013 Determination of indigency; appointment of counsel. As soon as practicable after a person has been detained or arrested in connection with any offense that is punishable by incarceration, or in connection with any civil commitment proceeding, or in any other situation in which a person is entitled to counsel regardless of ability to pay under the constitution or laws of the United States or this state, the person shall be informed of his or her right to counsel. (2) (a) Except as provided in par. (b), a A person entitled to counsel under sub. (1) who indicates at any time that he or she wants to be represented by a lawyer, and who claims that he or she is not able to pay in full for a lawyer's services, shall immediately be permitted to contact the authority for indigency determinations specified under s. 977.07 (1). The authority for indigency determination in each county shall have daily telephone access to the county jail in order to identify all persons who are being held in the jail. The jail personnel shall provide by phone information requested by the authority.

SB82,363 Section 363. 967.06 (2) (b) of the statutes is repealed.

SB82,364 Section 364. 967.06 (3) of the statutes is renumbered 977.072 and amended to read:

SB82,117,5 977.072 Transcript or court record; costs. In any case in which the state public defender provides representation to an indigent person, the public defender may request that the applicable court reporter or clerk of circuit court prepare and transmit any transcript or court record. The request shall be complied with. The state public defender shall, from the appropriation under s. 20.550 (1) (f), compensate the court reporter or clerk of circuit court for the cost of preparing, handling, duplicating, and mailing the documents.

SB82,365 Section 365. 967.07 of the statutes is repealed.

SB82,366 Section 366. 967.08 (title) of the statutes is renumbered 967.14 (title).

SB82,367 Section 367. 967.08 (1) of the statutes is renumbered 967.14 (1) (intro.) and amended to read:

SB82,117,14 967.14 (1) Proceedings covered. (intro.) Unless good cause to the contrary is shown, the court may permit any of the following proceedings referred to in this section may to be conducted by telephone or live audiovisual means, if available. If the proceeding is required to be reported under SCR 71.01 (2), the on the request of either party:

SB82,118,3 (5) Procedures. A proceeding conducted under this section shall be reported recorded by a court reporter who is in simultaneous voice communication with all parties to the proceeding. Regardless of the physical location of any party to the call, any plea, waiver, stipulation, motion, objection, decision, order or other action taken by the court or any party shall have the same effect as if made in open court. With the exceptions of scheduling conferences, pretrial conferences, and, during hours the court is not in session, setting, review, modification of bail and other conditions of release under ch. 969, the if it is required to be reported under SCR 71.01 (2). The proceeding shall be conducted in a courtroom or other place reasonably accessible to the public, with the exception of scheduling conferences, pretrial conferences, and, when the court is not in session, the setting, review, or modification of the conditions of release. Simultaneous access to the proceeding shall be provided to persons entitled to attend by means of a loudspeaker or, upon request to the court, by making a person party to the telephone call without charge.

SB82,368 Section 368. 967.08 (2) (intro.) of the statutes is renumbered 967.14 (3) and amended to read:

SB82,118,11 967.14 (3) Requests and objections. The court may permit the following proceedings to be conducted under sub. (1) on the request of either party. The request and the opposing party's showing of good cause for not conducting the proceeding A party may make a request under sub. (1) may be made by telephone. The opposing party may show good cause by telephone for not conducting the proceeding under this section.

SB82,369 Section 369. 967.08 (2) (a) to (d) of the statutes are renumbered 967.14 (1) (a) to (d) and amended to read:

SB82,118,15 967.14 (1) (a) Initial appearance under s. 970.01 subch. I of ch. 971 or pretrial conference.

SB82,118,16 (b) Waiver of preliminary examination under s. 970.03, 971.042.

SB82,118,17 (e) Waiver of a competency hearing under s. 971.14 (4) or 975.34.

SB82,118,18 (f) Waiver of a jury trial under s. 972.02 972.005 (1).