1995 Wisconsin Act 77

77,663 Section 663 . 968.255 (1) (a) 3. of the statutes is amended to read:

968.255 (1) (a) 3. Taken into custody under s. 48.19 938.19 and there are reasonable grounds to believe the child has committed an act which if committed by an adult would be covered under subd. 1. or 2.

77,664 Section 664 . 968.255 (7) (b) of the statutes is amended to read:

968.255 (7) (b) Is placed in or transferred to a secured correctional facility, as defined in s. 938.02 (15m), or a secured child caring institution, as defined in s. 938.02 (15g).

77,665 Section 665 . 969.01 (4) of the statutes is amended to read:

969.01 (4) Considerations in setting conditions of release. If bail is imposed, it shall be only in the amount found necessary to assure the appearance of the defendant. Conditions of release, other than monetary conditions, may be imposed for the purpose of protecting members of the community from serious bodily harm or preventing intimidation of witnesses. Proper considerations in determining whether to release the defendant without bail, fixing a reasonable amount of bail or imposing other reasonable conditions of release are: the ability of the arrested person to give bail, the nature, number and gravity of the offenses and the potential penalty the defendant faces, whether the alleged acts were violent in nature, the defendant's prior criminal record of criminal convictions and delinquency adjudications, if any, the character, health, residence and reputation of the defendant, the character and strength of the evidence which has been presented to the judge, whether the defendant is currently on probation or parole, whether the defendant is already on bail or subject to other release conditions in other pending cases, whether the defendant has been bound over for trial after a preliminary examination, whether the defendant has in the past forfeited bail or violated a condition of release or was a fugitive from justice at the time of arrest, and the policy against unnecessary detention of the defendant's pending trial.

77,666 Section 666 . 970.032 (title) and (1) of the statutes are amended to read:

970.032 (title) Preliminary examination; child accused of committing assault or battery in a secured correctional facility child under original adult court jurisdiction. (1) Notwithstanding s. 970.03, if a preliminary examination is held regarding a child who is accused of violating s. 940.20 (1) or 946.43 while placed in a secured correctional facility, as defined in s. 48.02 (15m) subject to the original jurisdiction of the court of criminal jurisdiction under s. 938.183 (1), the court shall first determine whether there is probable cause to believe that the child has committed a violation of s. 940.20 (1) or 946.43 while placed in a secured correctional facility, as defined in s. 48.02 (15m) the violation of which he or she is accused under the circumstances specified in s. 938.183 (1) (a), (am), (b) or (c), whichever is applicable. If the court does not make that finding, the court shall order that the child be discharged but proceedings may be brought regarding the child under ch. 48 938.

77,667 Section 667 . 970.032 (2) (intro.) of the statutes is amended to read:

970.032 (2) (intro.) If the court finds probable cause as specified in sub. (1), the court shall determine whether to retain jurisdiction or to transfer jurisdiction to the court assigned to exercise jurisdiction under ch. chs. 48 and 938. The court shall retain jurisdiction unless the court finds all of the following:

77,668 Section 668 . 970.032 (2) (b) of the statutes is amended to read:

970.032 (2) (b) That transferring jurisdiction to the court assigned to exercise jurisdiction under ch. chs. 48 and 938 would not depreciate the seriousness of the offense.

77,669 Section 669 . 970.032 (2) (c) of the statutes is amended to read:

970.032 (2) (c) That retaining jurisdiction is not necessary to deter the child or other children from committing violations of s. 940.20 (1) or 946.43 or other similar offenses while placed in a secured correctional facility, as defined in s. 48.02 (15m) the violation of which the child is accused under the circumstances specified in s. 938.183 (1) (a), (am), (b) or (c), whichever is applicable.

77,670 Section 670 . 970.035 of the statutes is amended to read:

970.035 Preliminary examination; child younger than 16 years old. Notwithstanding s. 970.03, if a preliminary examination under s. 970.03 is held regarding a child who was waived under s. 48.18 938.18 for a violation which is alleged to have occurred prior to his or her 16th 15th birthday, the court may bind the child over for trial only if there is probable cause to believe that a crime under s. 940.01 has been attempted or committed, that a crime under s. 161.41 (1), 940.02, 940.05 940.03, 940.06, 940.225 (1) or (2), 940.305, 940.31 or , 943.10 (2) or 943.32 (2) has been committed or that a crime that would constitute a felony under ch. 161 or under chs. 939 to 948 if committed by an adult has been committed at the request of or for the benefit of a criminal gang, as defined in s. 939.22 (9). If the court does not make any of those findings, the court shall order that the child be discharged but proceedings may be brought regarding the child under ch. 48 938.

77,671 Section 671 . 971.105 of the statutes is amended to read:

971.105 Child victims and witnesses; duty to expedite proceedings. In all criminal and delinquency cases, juvenile fact-finding hearings under s. 48.31 and juvenile dispositional hearings under s. 48.335 involving a child victim or witness, as defined in s. 950.02, the court and the district attorney shall take appropriate action to ensure a speedy trial in order to minimize the length of time the child must endure the stress of the child's involvement in the proceeding. In ruling on any motion or other request for a delay or continuance of proceedings, the court shall consider and give weight to any adverse impact the delay or continuance may have on the well-being of a child victim or witness.

77,672 Section 672 . 972.14 (3) of the statutes is amended to read:

972.14 (3) (a) Before pronouncing sentence in a felony case, the court shall also allow a victim or family member of a homicide victim to make a statement or submit a written statement to be read in court. The court may allow any other person to make or submit a statement under this paragraph. Any statement under this paragraph must be relevant to the sentence.

(b) After a conviction in a felony case, if the district attorney knows of a victim or family member of a homicide or felony murder victim, the district attorney shall attempt to contact that person to inform him or her of the right to make or provide a statement under par. (a). The district attorney may mail a letter or form to comply with this paragraph. Any failure to comply with this paragraph is not a ground for an appeal of a judgment of conviction or for any court to reverse or modify a judgment of conviction.

77,673 Section 673 . 976.08 of the statutes is amended to read:

976.08 Additional applicability. In this chapter, “prisoner" includes any person subject to an order under s. 48.366 or 938.183 who is confined to a Wisconsin state prison and any person subject to an order under s. 938.34 (4h) who is 17 years of age or older.

77,674 Section 674 . 977.02 (3) of the statutes is amended to read:

977.02 (3) Promulgate rules regarding the determination of indigency of persons entitled to be represented by counsel, other than children who are entitled to be represented by counsel under s. 48.23 or 938.23, including the time period in which the determination must be made and the criteria to be used to determine indigency and partial indigency.

77,675 Section 675 . 977.02 (4r) of the statutes, as created by 1995 Wisconsin Act 27, is amended 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, 938.275 (2), 973.06 (1) (e) or 977.076 (1).

77,676 Section 676 . 977.03 (2m) of the statutes, as created by 1995 Wisconsin Act 27, is amended to read:

977.03 (2m) The board may promulgate rules that establish procedures to collect payment ordered under s. 48.275 (2), 757.66, 938.275 (2), 973.06 (1) (e) or 977.076 (1) from a prisoner's prison financial account.

77,677 Section 677 . 977.05 (4) (gm) of the statutes is amended to read:

977.05 (4) (gm) In accordance with the standards under pars. (h) and (i), accept referrals from judges and courts for the provision of legal services without a determination of indigency of children who are entitled to be represented by counsel under s. 48.23 or 938.23, appoint counsel in accordance with contracts and policies of the board and inform the referring judge or court of the name and address of the specific attorney who has been assigned to the case.

77,678 Section 678 . 977.05 (4) (h) of the statutes is amended to read:

977.05 (4) (h) Accept requests for legal services from children who are entitled to be represented by counsel under s. 48.23 or 938.23 and from indigent persons who are entitled to be represented by counsel under s. 967.06 or who are otherwise so entitled under the constitution or laws of the United States or this state and provide such persons with legal services when, in the discretion of the state public defender, such provision of legal services is appropriate.

77,679 Section 679 . 977.05 (4) (i) 5. of the statutes is amended to read:

977.05 (4) (i) 5. Cases involving children who are entitled to counsel or are provided counsel at the discretion of the court under s. 48.23 or 938.23.

77,680 Section 680 . 977.05 (6) (cm) 2. of the statutes, as created by 1995 Wisconsin Act 27, is amended to read:

977.05 (6) (cm) 2. The child is not yet subject to a proceeding under ch. 48 or 938 for which counsel is required under s. 48.23 or 938.23 or for which counsel may be appointed under s. 48.23 or 938.23.

77,681 Section 681 . 977.06 (1m) of the statutes, as created by 1995 Wisconsin Act 27, is amended 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 or 938.23, 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.

77,682 Section 682 . 977.06 (2) (a) of the statutes, as affected by 1995 Wisconsin Act 27, is amended to read:

977.06 (2) (a) 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 or 938.23, shall sign a statement declaring that he or she has not disposed of any assets for the purpose of qualifying for that assignment of counsel. If the representative or authority making the indigency determination finds that any asset was disposed of for less than its fair market value for the purpose of obtaining that assignment of counsel, the asset shall be counted under s. 977.07 (2) at its fair market value at the time it was disposed of, minus the amount of compensation received for the asset.

77,683 Section 683 . 977.06 (2) (am) of the statutes, as created by 1995 Wisconsin Act 27, is amended 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 or 938.23, 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).

77,684 Section 684 . 977.06 (3) (c) of the statutes, as created by 1995 Wisconsin Act 27, is amended to read:

977.06 (3) (c) Except as provided in s. ss. 48.275 (2) (b) and 938.275 (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).

77,685 Section 685 . 977.07 (1) (a) of the statutes, as affected by 1995 Wisconsin Act 27, 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 or 938.23.

77,686 Section 686 . 977.07 (1) (c) of the statutes is amended to read:

977.07 (1) (c) For all referrals made under ss. 809.30 and 974.06 (3) (b), except a referral of a child who is entitled to be represented by counsel under s. 48.23 or 938.23, a representative of the state public defender shall determine indigency, and may, unless a request for redetermination has been filed under s. 809.30 (2) (d) or the defendant's request for representation states that his or her financial circumstances have materially improved, rely upon a determination of indigency made for purposes of trial representation under this section.

77,687 Section 687 . 977.07 (2m) of the statutes, as created by 1995 Wisconsin Act 27, is amended to read:

977.07 (2m) If the person is 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, 938.275 (2), 973.06 (1) (e) or 977.076 (1), 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. This subsection does not apply to persons who have paid under s. 977.075 (1).

77,688 Section 688 . 977.075 (1) (intro.), (3) and (4) of the statutes, as created by 1995 Wisconsin Act 27, are amended to read:

977.075 (1) (intro.) The board shall establish by rule fixed amounts as flat payments for the cost of representation that a person, other than a parent subject to s. 48.275 (2) (b) or 938.275 (2) (b), who is responsible for payment for legal representation, may elect to pay. The rule shall require all of the following:

(3) The board shall establish by rule a fee schedule that sets the amount that a person, other than a parent subject to s. 48.275 (2) (b) or 938.275 (2) (b), who is responsible for payment for legal representation shall pay for the cost of the legal representation. The schedule shall establish a fee for a given type of case, and the fee for a given type of case shall be based on the average cost, as determined by the board, for representation for that type of case.

(4) The board may establish by rule a procedure for collecting a nonrefundable partial payment within 60 days after the commencement of representation for legal services from persons who are responsible for payment for legal representation. This subsection does not apply to a parent who is subject to s. 48.275 (2) (b) or 938.275 (2) (b).

77,689 Section 689 . 977.076 of the statutes, as created by 1995 Wisconsin Act 27, is amended to read:

977.076 Collections. (1) If the state public defender notifies the court in which the underlying action was filed that a person who is required to reimburse the state public defender for legal representation has failed to make the required payment or to timely make periodic payments, the court may issue a judgment on behalf of the state for the unpaid balance and direct the clerk of circuit court to file and docket a transcript of the judgment, without fee. If the court issues a judgment for the unpaid balance, the court shall send a notice to the person at his or her last-known address that a civil judgment has been issued for the unpaid balance. The judgment has the same force and effect as judgments issued under s. 806.10. Except as provided in s. ss. 48.275 (2) (b) and 938.275 (2) (b), the judgment shall be based on the person's ability to pay and on the fee schedule established by the board under s. 977.075 (3).

(2) The department of administration may collect unpaid reimbursement payments to the state public defender ordered by a court under sub. (1) or s. 48.275 (1) (a), 757.66, 938.275 (1) (a) or 973.06 (1) (e). The department may contract with a private collection agency to collect these payments. Section 16.705 does not apply to a contract under this subsection.

77,690 Section 690 . 977.08 (2) (e) of the statutes is amended to read:

977.08 (2) (e) Cases involving children who are entitled to counsel or are provided counsel at the discretion of the court under s. 48.23 or 938.23.

77,691 Section 691 . 977.085 (3) of the statutes, as affected by 1995 Wisconsin Act 27, is amended to read:

977.085 (3) The board shall provide quarterly reports to the joint committee on finance on the status of reimbursement for or recoupment of payments under ss. 48.275, 757.66, 938.275, 977.06, 977.07 (2), 977.075 and 977.076, including the amount of revenue generated by reimbursement and recoupment. The quarterly reports shall include any alternative means suggested by the board to improve reimbursement and recoupment procedures and to increase the amount of revenue generated. The department of justice, district attorneys, circuit courts and applicable county agencies shall cooperate by providing any necessary information to the state public defender.

77,692 Section 692 . 978.05 (6) (a) of the statutes is amended to read:

978.05 (6) (a) Institute, commence or appear in all civil actions or special proceedings under and perform the duties set forth for the district attorney under ss. 17.14, 30.03 (2), 48.09 (1), (2) and (5), 48.18, 48.355 (6) (b) and (6g) (a), 59.073, 59.77, 70.36, 103.50 (8), 103.92 (4), 109.09, 161.55 (5), 343.305 (9) (a), 453.08, 806.05, 938.09, 938.18, 938.355 (6) (b) and (6g) (a), 946.86, 946.87, 971.14 and 973.075 to 973.077, perform any duties in connection with court proceedings in a court assigned to exercise jurisdiction under ch. chs. 48 and 938 as the judge may request and perform all appropriate duties and appear if the district attorney is designated in specific statutes, including matters within chs. 782, 976 and 979 and ss. 51.81 to 51.85. Nothing in this paragraph limits the authority of the county board to designate, under s. 48.09 (2) or (5), that the corporation counsel provide representation as specified in s. 48.09 (2) or (5) or to designate, under s. 48.09 (6) or 938.09 (6), the district attorney as an appropriate person to represent the interests of the public under s. 48.14 or 938.14.

77,693 Section 693 . 980.015 (2) (b) of the statutes is amended to read:

980.015 (2) (b) The anticipated release from a secured correctional facility, as defined in s. 48.02 938.02 (15m), or a secured child caring institution, as defined in s. 938.02 (15g), of a person adjudicated delinquent under s. 48.34 938.34 on the basis of a sexually violent offense.

77,694 Section 694 . 980.02 (1) (b) 2. of the statutes is amended to read:

980.02 (1) (b) 2. The county in which the person will reside or be placed upon his or her discharge from a sentence, release on parole, release from imprisonment, from a secured correctional facility, as defined in s. 48.02 938.02 (15m), or a secured child caring institution, as defined in s. 938.02 (15g), or from a commitment order.

77,695 Section 695 . 980.02 (2) (ag) of the statutes is amended to read:

980.02 (2) (ag) The person is within 90 days of discharge or release, on parole or otherwise, from a sentence that was imposed for a conviction for a sexually violent offense from a secured correctional facility, as defined in s. 48.02 938.02 (15m), or a secured child caring institution, as defined in s. 938.02 (15g), if the person was placed in the facility for being adjudicated delinquent under s. 48.34 938.34 on the basis of a sexually violent offense or from a commitment order that was entered as a result of a sexually violent offense.

77,696 Section 696 . 980.02 (4) (am) of the statutes is amended to read:

980.02 (4) (am) The circuit court for the county in which the person will reside or be placed upon his or her discharge from a sentence, release on parole, release from imprisonment, from a secured correctional facility, as defined in s. 48.02 938.02 (15m), or a secured child caring institution, as defined in s. 938.02 (15g), or from a commitment order.

77,697 Section 697 . 980.02 (4) (b) of the statutes is amended to read:

980.02 (4) (b) The circuit court for the county in which the person is in custody under a sentence, a placement to a secured correctional facility, as defined in s. 48.02 938.02 (15m), or a secured child caring institution, as defined in s. 938.02 (15g), or a commitment order.

77,698 Section 698 . 980.04 (1) of the statutes is amended to read:

980.04 (1) Upon the filing of a petition under s. 980.02, the court shall review the petition to determine whether to issue an order for detention of the person who is the subject of the petition. The person shall be detained only if there is cause to believe that the person is eligible for commitment under s. 980.05 (5). A person detained under this subsection shall be held in a facility approved by the department. If the person is serving a sentence of imprisonment, is in a secured correctional facility, as defined in s. 48.02 938.02 (15m), or a secured child caring institution, as defined in s. 938.02 (15g), or is committed to institutional care, and the court orders detention under this subsection, the court shall order that the person be transferred to a detention facility approved by the department. A detention order under this subsection remains in effect until the person is discharged after a trial under s. 980.05 or until the effective date of a commitment order under s. 980.06, whichever is applicable.

77,699 Section 699 . 990.01 (3) of the statutes, as affected by 1995 Wisconsin Act 27, is amended to read:

990.01 (3) Adult. “Adult" means a person who has attained the age of 18 years, except that for purposes of prosecuting a person who is alleged to have violated any state or federal criminal law or any civil law or municipal ordinance, “adult" means a person who has attained the age of 17 years.

77,700 Section 700 . 990.01 (20) of the statutes, as affected by 1995 Wisconsin Act 27, is amended to read:

990.01 (20) Minor. “Minor" means a person who has not attained the age of 18 years, except that for purposes of prosecuting a person who is alleged to have violated a state or federal criminal law or any civil law or municipal ordinance, “minor" does not include a person who has attained the age of 17 years.

77,701 Section 701 . 1995 Wisconsin Act 27, section 9126 (23) (f) 5. is amended to read:

[1995 Wisconsin Act 27] Section 9126 (23) (f) 5. On the effective date of this subdivision, 6.1 FTE GPR positions in the division of management services in the department of health and social services funded from the appropriation under section 20.435 (8) (a) of the statutes, as affected by the acts of 1995, and the incumbent employes holding those positions are transferred to the department of corrections, and the positions become 3.0 6.1 FTE GPR positions to be funded from the appropriation under section 20.410 (1) (a) of the statutes, as affected by the acts of 1995.

77,9112 Section 9112. Nonstatutory provisions; corrections.

(1g)  Juvenile correctional institution rates. No later than January 15, 1996, the secretary of corrections shall submit to the secretary of administration and to the cochairpersons of the joint committee on finance proposed rates under section 301.26 (4) (d) 3m. of the statutes, as created by 1995 Wisconsin Act 27, and section 301.26 (4) (d) 4. of the statutes, as created by 1995 Wisconsin Act 27, for maintaining a child in a secured child caring institution, as defined in section 938.02 (15g) of the statutes, as created by this act. The rates may not vary according to the secured child caring institution in which a child is placed. The rates shall reflect the average daily cost associated with maintaining a child in a secured child caring institution. The secretary of administration shall evaluate the rates and, if the secretary of administration approves of the rates, the secretary of administration shall, no later than March 1, 1996, submit a report to the cochairpersons of the joint committee on finance containing proposed legislation providing for those rates effective on July 1, 1996. The department of health and social services shall assist the department of corrections in proposing those rates.

77,9300 Section 9300. Initial applicability; general statement.

(1g) Except as otherwise provided in Section 9310 of this act, this act first applies to violations committed on the effective date of this subsection.

77,9310 Section 9310. Initial applicability; circuit courts.

(1) Adult court jurisdiction over children. The treatment of sections 938.18 (1) (a) 3., 938.183 (1) (b) and (c), 948.60 (2) (d) and 948.61 (4) of the statutes first applies to acts committed on the effective date of this subsection, but does not preclude the counting of a conviction or a waiver of jurisdiction under section 48.18 of the statutes obtained, or a criminal proceeding commenced, before the effective date of this subsection for the purpose of conferring jurisdiction over a child on a court of criminal jurisdiction under section 938.183 (1) (b) or (c) of the statutes, as created by this act.

(2) Firearm possession penalties. The treatment of section 941.29 (2) of the statutes first applies to offenses committed on the effective date of this subsection, but does not preclude the counting of other offenses as prior offenses for purposes of sentencing a person.