1995 Wisconsin Act 27

973.20 (13) (c) 1. Order restitution of amounts not in dispute as part of the sentence or probation or community supervision order imposed and direct the appropriate agency to file a proposed restitution order with the court within 90 days thereafter, and mail or deliver copies of the proposed order to the victim, district attorney, defendant and defense counsel.

27,7263bi Section 7263bi. 973.20 (13) (c) 3. of the statutes is amended to read:

973.20 (13) (c) 3. With the consent of the defendant, refer the disputed restitution issues to an arbitrator acceptable to all parties, whose determination of the amount of restitution shall be filed with the court within 60 days after the date of referral and incorporated into the court's sentence or probation or community supervision order.

27,7263bj Section 7263bj. 973.20 (13) (c) 4. of the statutes is amended to read:

973.20 (13) (c) 4. Refer the disputed restitution issues to a court commissioner or other appropriate referee, who shall conduct a hearing on the matter and submit the record thereof, together with proposed findings of fact and conclusions of law, to the court within 60 days of the date of referral. Within 30 days after the referee's report is filed, the court shall determine the amount of restitution on the basis of the record submitted by the referee and incorporate it into the sentence or probation or community supervision order imposed. The judge may direct that hearings under this subdivision be recorded either by audio recorder or by a court reporter. A transcript is not required unless ordered by the judge.

27,7263bk Section 7263bk. 974.05 (1) (c) of the statutes is amended to read:

974.05 (1) (c) Judgment and sentence or order of probation or community supervision not authorized by law.

27,7263bL Section 7263bL. 974.06 (1) of the statutes is amended to read:

974.06 (1) After the time for appeal or postconviction remedy provided in s. 974.02 has expired, a prisoner in custody under sentence of a court or a person convicted and placed on community supervision under s. 973.095 or placed with a volunteers in probation program under s. 973.11 claiming 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 jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

27,7263e Section 7263e. 977.02 (4m) of the statutes is created to read:

977.02 (4m) Promulgate rules for payments to the state public defender under s. 977.075.

27,7263f Section 7263f. 977.02 (4r) of the statutes is created to read:

977.02 (4r) Promulgate rules that establish procedures to provide the department of administration with any information concerning the collection of payment ordered under s. 48.275 (2), 757.66, 973.06 (1) (e) or 977.076 (1).

27,7263g Section 7263g. 977.02 (7r) (a) (intro.) of the statutes is amended to read:

977.02 (7r) (a) (intro.) Promulgate rules to allow the reduction of payment rates for cases assigned by the state public defender under s. 977.08 (4m) for any of the following:

27,7263i Section 7263i. 977.02 (7r) (am) of the statutes is created to read:

977.02 (7r) (am) For any reduction under par. (a), the board shall submit the reduction to the joint committee on finance for review under the procedures specified in s. 13.10 and shall obtain approval from the joint committee on finance for the reduction.

27,7263k Section 7263k. 977.03 (2m) of the statutes is created to read:

977.03 (2m) The board may promulgate rules that establish procedures to collect payment ordered under s. 48.275 (2), 757.66, 973.06 (1) (e) or 977.076 (1) from a prisoner's prison financial account.

27,7263m Section 7263m. 977.03 (3) of the statutes is created to read:

977.03 (3) The state public defender may establish procedures by rule under which the state public defender may appoint attorneys without regard to s. 977.08 (3) (c) and (d) based on the state public defender's evaluation of the attorneys' performance.

27,7263p Section 7263p. 977.05 (4) (i) 3. of the statutes is amended to read:

977.05 (4) (i) 3. Cases involving persons charged with a misdemeanor that is punishable by imprisonment but is not specified under subd. 1 and to which s. 939.615 (1) does not apply.

27,7264m Section 7264m. 977.05 (4) (i) 7. of the statutes is amended to read:

977.05 (4) (i) 7. Cases involving paternity determinations, as specified under ch. 767 s. 767.52, in which the state is the petitioner under s. 767.45 (1) (g) or in which the action is commenced on behalf of the child by an attorney appointed under s. 767.045 (1) (c).

27,7265 Section 7265 . 977.05 (4) (j) of the statutes is amended to read:

977.05 (4) (j) At Subject to sub. (6) (e) and (f), at the request of any person determined by the state public defender to be indigent or upon referral of any court, prosecute a writ of error, appeal, action or proceeding for habeas corpus or other postconviction or post-commitment remedy or attack the conditions of confinement on behalf of the person before any court, if the state public defender determines the case should be pursued. The state public defender must pursue the case of any indigent person entitled to counsel under s. 971.17 (7) (b) 1. or 980.03 (2) (a).

27,7266 Section 7266 . 977.05 (6) (title) of the statutes is amended to read:

977.05 (6) (title) Restriction Restrictions.

27,7267 Section 7267 . 977.05 (6) of the statutes is renumbered 977.05 (6) (a) and amended to read:

977.05 (6) (a) The state public defender shall may not provide legal services or assign counsel for cases involving a person subject to contempt of court proceedings involving the alleged failure of the person to pay a forfeiture to a county or municipality.

27,7268 Section 7268. 977.05 (6) (b) of the statutes is created to read:

977.05 (6) (b) The state public defender may not provide legal services or assign counsel for a person subject to contempt of court proceedings under s. 767.30 or 767.305 for failure to pay child or family support, if any of the following applies:

1. The action is not brought by the state, its delegate under s. 59.458 (1) or an attorney appointed under s. 767.045 (1) (c).

2. The judge or family court commissioner before whom the proceedings shall be held certifies to the state public defender that the person will not be incarcerated if he or she is found in contempt of court.

27,7268b Section 7268b. 977.05 (6) (c) of the statutes is created to read:

977.05 (6) (c) The state public defender may not provide legal services or assign counsel for an adult in a criminal case if all of the following apply:

1. The adult is not in custody.

2. The adult has not yet been charged with a crime.

27,7268c Section 7268c. 977.05 (6) (cm) of the statutes is created to read:

977.05 (6) (cm) The state public defender may not provide legal services or assign counsel for a child in a juvenile case if all of the following apply:

1. The child is not in custody.

2. The child is not yet subject to a proceeding under ch. 48 for which counsel is required under s. 48.23 or for which counsel may be appointed under s. 48.23.

27,7268k Section 7268k. 977.05 (6) (e) of the statutes is created to read:

977.05 (6) (e) The state public defender may not provide legal services or assign counsel for a person who files a motion to modify sentence under s. 973.19 (1) (a), or for a person who appeals, under s. 973.19 (4), the denial of a motion to modify sentence filed under s. 973.19 (1) (a), unless the person does one of the following:

1. Files the notice of intent to pursue postconviction relief within the time limit specified in s. 809.30 (2) (b) or, if the time limit specified in s. 809.30 (2) (b) is enlarged under s. 809.82 (2), within the time limit specified in the order enlarging time.

2. Files the motion to modify sentence under s. 973.19 (1) (a) within 20 days after the sentence or order is entered.

27,7268p Section 7268p. 977.05 (6) (f) of the statutes is created to read:

977.05 (6) (f) The state public defender may not provide legal services or assign counsel in cases involving an appeal or postconviction motion under s. 809.30 (2) if the notice of intent to pursue postconviction relief is not filed within the time limit specified in s. 809.30 (2) (b) or, if the time limit specified in s. 809.30 (2) (b) is enlarged under s. 809.82 (2), within the time limit specified in the order enlarging time.

27,7268s Section 7268s. 977.05 (6) (g) of the statutes is created to read:

977.05 (6) (g) The state public defender may not provide legal services or assign counsel in a proceeding under s. 973.09 (3) to modify the conditions of a probationer's probation unless all of the following apply:

1. The probationer is contesting the modification of the conditions of probation.

2. The state or the court seeks to modify the conditions of probation to include a period of confinement under s. 973.09 (4).

27,7268w Section 7268w. 977.05 (6) (h) of the statutes is created to read:

977.05 (6) (h) The state public defender may not provide legal services or assign counsel in parole revocation proceedings unless all of the following apply:

1. The parolee is contesting the revocation of parole.

2. The department of corrections seeks to have the parolee imprisoned upon the revocation of parole.

27,7268y Section 7268y. 977.05 (6) (i) of the statutes is created to read:

977.05 (6) (i) The state public defender may not provide legal services or assign counsel in probation revocation proceedings unless all of the following apply:

1. The probationer is contesting the revocation of probation.

2. The department of corrections seeks to have the probationer imprisoned upon the revocation of probation or a stayed sentence of imprisonment will be imposed on the probationer upon the revocation of probation.

27,7269 Section 7269 . 977.06 (title) and (1) of the statutes are created to read:

977.06 (title) Indigency determinations; redeterminations; verification; collection. (1) Duties. The state public defender shall determine whether persons are indigent and shall establish a system to do all of the following:

(a) Verify the information necessary to determine indigency under s. 977.07 (2). The information provided by a person seeking assigned counsel that is subject to verification shall include any social security numbers provided on an application under sub. (1m), income records, value of assets, eligibility for public assistance, as defined in s. 16.20 (1) (fm), and claims of expenses.

(b) Redetermine indigency during the course of representation of persons receiving representation.

(c) Record the amount of time spent on each case by the attorney appointed under s. 977.08.

(d) Collect for the cost of representation from persons who are indigent in part or who have been otherwise determined to be able to reimburse the state public defender for the cost of providing counsel.

27,7269m Section 7269m. 977.06 (1) (a) of the statutes, as created by 1995 Wisconsin Act .... (this act), is amended to read:

977.06 (1) (a) Verify the information necessary to determine indigency under s. 977.07 (2). The information provided by a person seeking assigned counsel that is subject to verification shall include any social security numbers provided on an application under sub. (1m), income records, value of assets, eligibility for public assistance, as defined in s. 16.20 106.215 (1) (fm), and claims of expenses.

27,7269p Section 7269p. 977.06 (1m) of the statutes is created to read:

977.06 (1m) Application for representation. The state public defender shall request each person seeking to have counsel assigned for him or her under s. 977.08, other than a child who is entitled to be represented by counsel under s. 48.23, to provide the state public defender with his or her social security number and the social security numbers of his or her spouse and dependent children, if any.

27,7270 Section 7270 . 977.06 (2) (title) of the statutes is created to read:

977.06 (2) (title) Verifications.

27,7270m Section 7270m. 977.06 (2) (am) of the statutes is created to read:

977.06 (2) (am) A person seeking to have counsel assigned for him or her under s. 977.08, other than a child who is entitled to be represented by counsel under s. 48.23, shall sign a statement declaring that the information that he or she has given to determine eligibility for assignment of counsel he or she believes to be true and that he or she is informed that he or she is subject to the penalty under par. (b).

27,7271 Section 7271 . 977.06 (3) (title) of the statutes is created to read:

977.06 (3) (title) Redeterminations.

27,7271g Section 7271g. 977.06 (3) (b) of the statutes is created to read:

977.06 (3) (b) The state public defender may petition a court that ordered payment under s. 757.66, 973.06 (1) (e) or 977.076 (1) to modify an order or judgment to adjust the amount of payment or the scheduled amounts at any time.

27,7271m Section 7271m. 977.06 (3) (c) of the statutes is created to read:

977.06 (3) (c) Except as provided in s. 48.275 (2) (b), an adjustment under this subsection shall be based on the person's ability to pay and on the fee schedule established by the board under s. 977.075 (3).

27,7272 Section 7272 . 977.06 (4) (title) of the statutes is created to read:

977.06 (4) (title) Oversight.

27,7272m Section 7272m. 977.07 (1) (a) of the statutes is amended to read:

977.07 (1) (a) Determination of indigency for persons entitled to counsel shall be made as soon as possible and shall be in accordance with the rules promulgated by the board under s. 977.02 (3) and the system established under s. 977.06. No determination of indigency is required for a child who is entitled to be represented by counsel under s. 48.23.

27,7273 Section 7273 . 977.07 (2) (a) of the statutes is renumbered 977.07 (2) and amended to read:

977.07 (2) The representative of the state public defender or the authority for indigency determinations specified under sub. (1) making a determination of indigency shall ascertain the assets of the person which exceed the amount needed for the payment of reasonable and necessary expenses incurred, or which must be incurred to support the person and the person's immediate family. The assets shall include disposable income, cash in hand, stocks and bonds, bank accounts and other property which can be converted to cash within a reasonable period of time and is not needed to hold a job, or to shelter, clothe and care for the person and the person's immediate family. Assets which cannot be converted to cash within a reasonable period of time, such as a person's home, car, household furnishings, clothing and other property which has been declared exempt from attachment or execution by law, shall be calculated to be assets equivalent in dollars to the amount of the loan which could be, in fact, raised by using these assets as collateral. Assets also include any money expended by the person to post bond to obtain release regarding the current alleged offense. If the person's assets, less reasonable and necessary living expenses, are not sufficient to cover the anticipated cost of effective representation when the length and complexity of the anticipated proceedings are taken fully into account, the person shall be determined to be indigent in full or in part. The determination of the ability of the person to contribute to the cost of legal services shall be based upon specific written standards relating to income, assets and the anticipated cost of representation. If found to be indigent in full or in part, the person shall be promptly informed of the state's right to payment or recoupment under s. 48.275 (2), 757.66 or 973.06 (1) (e), and the possibility that the payment of attorney fees may be made a condition of probation, should the person be placed on probation. Furthermore, if found to be indigent in part, the person shall be promptly informed of the extent to which he or she will be expected to pay for counsel, and whether the payment shall be in the form of a lump sum payment or periodic payments. The person shall be informed that the payment amount may be adjusted if his or her financial circumstances change by the time of sentencing. The payment and payment schedule shall be set forth in writing. Payments for services of the state public defender or other counsel provided under this chapter made pursuant to this subsection shall be paid to the state public defender for deposit in the state treasury and credited to the appropriation under s. 20.550 (1) (ja). Under this subsection, reasonable and necessary living expenses equal the applicable payment amount under s. 49.19 (11) (a) 1. plus other specified, emergency or essential costs. The representative or authority making the determination of indigency shall consider any assets of the spouse of the person claiming to be indigent as if they were assets of the person, unless the spouse was the victim of a crime allegedly committed by the person.

27,7274m Section 7274m. 977.07 (2) (b) of the statutes is renumbered 977.06 (3) (a) and amended to read:

977.06 (3) (a) Unless the court has made an adjustment under s. 973.06 (1) (e), upon determination at the conclusion of a case that a person's financial circumstances are changed, the state public defender may adjust the amount of payment for counsel under par. (a) in accordance with par. (a) and sub. (1) (a).