Amendment SSA1-AB497

AB497-SSA1,10,23 968.20 (1) (intro.) Any person claiming the right to possession of property seized pursuant to a search warrant or seized without a search warrant may apply for its return to the circuit court for the county in which the property was seized or where the search warrant was returned. The court shall order such notice as it deems adequate to be given the district attorney and all persons who have or may have an interest in the property and shall hold a hearing to hear all claims to its true ownership. If the right to possession is proved to the court's satisfaction, it shall order the property, other than contraband or property covered under sub. (1m) or (1r) or s. 173.12 or, 173.21 (4) (b) or 968.205, returned if:

AB497-SSA1, s. 23 Section 23. 968.20 (2) of the statutes, as affected by 1997 Wisconsin Act 192, is amended to read:

AB497-SSA1,11,4 968.20 (2) Property not required for evidence or use in further investigation, unless contraband or property covered under sub. (1m) or (1r) or s. 173.12 or 968.205, may be returned by the officer to the person from whom it was seized without the requirement of a hearing.

AB497-SSA1, s. 24 Section 24. 968.20 (4) of the statutes is amended to read:

AB497-SSA1,11,15 968.20 (4) Any property seized, other than property covered under s. 968.205, which poses a danger to life or other property in storage, transportation or use and which is not required for evidence or further investigation shall be safely disposed of upon command of the person in whose custody they are committed. The city, village, town or county shall by ordinance or resolution establish disposal procedures. Procedures may include provisions authorizing an attempt to return to the rightful owner substances which have a commercial value in normal business usage and do not pose an immediate threat to life or property. If enacted, any such provision shall include a presumption that if the substance appears to be or is reported stolen an attempt will be made to return the substance to the rightful owner.

AB497-SSA1, s. 25 Section 25. 968.205 of the statutes is created to read:

AB497-SSA1,11,17 968.205 Preservation of certain evidence. (1) In this section:

AB497-SSA1,11,25 (a) "Custody" means actual custody of a person under a sentence of imprisonment, custody of a probationer, parolee or person on extended supervision by the department of corrections, actual or constructive custody of a person pursuant to a dispositional order under ch. 938, supervision of a person, whether in institutional care or on conditional release, pursuant to a commitment order under s. 971.17 and supervision of a person under ch. 980, whether in detention before trial or while in institutional care or on supervised release pursuant to a commitment order.

AB497-SSA1,12,5 (b) "Discharge date" means the date on which a person is released or discharged from custody that resulted from a criminal action, a delinquency proceeding under ch. 938 or a commitment proceeding under s. 971.17 or ch. 980 or, if the person is serving consecutive sentences of imprisonment, the date on which the person is released or discharged from custody under all of the sentences.

AB497-SSA1,12,10 (2) Except as provided in sub. (3), if physical evidence that is in the possession of a law enforcement agency includes any biological material that was collected in connection with a criminal action or with a delinquency proceeding under ch. 938, the physical evidence shall be preserved until every person in custody as a result of the criminal action or delinquency proceeding has reached his or her discharge date.

AB497-SSA1,12,13 (3) Subject to sub. (5), a law enforcement agency may destroy biological material before the expiration of the time period specified in sub. (2) if all of the following apply:

AB497-SSA1,12,17 (a) The law enforcement agency sends a notice of its intent to destroy the biological material to all persons who remain in custody as a result of the criminal action or delinquency proceeding and to either the attorney of record for each person in custody or the state public defender.

AB497-SSA1,12,19 (b) No person who is notified under par. (a) does either of the following within 90 days after the date on which the person received the notice:

AB497-SSA1,12,20 1. Files a motion for testing of the biological material under s. 974.07.

AB497-SSA1,12,22 2. Submits a written request to preserve the evidence to the law enforcement agency or district attorney.

AB497-SSA1,12,24 (c) No other provision of federal or state law requires the law enforcement agency to preserve the biological material.

AB497-SSA1,13,5 (4) A notice provided under sub. (3) (a) shall clearly inform the recipient that the biological material will be destroyed unless, within 90 days after the date on which the person receives the notice, either a motion for testing of the material is filed under s. 974.07 or a written request to preserve the evidence is submitted to the law enforcement agency.

AB497-SSA1,13,10 (5) If, after providing notice under sub. (3) (a) of its intent to destroy biological material, a law enforcement agency receives a written request to preserve the evidence, the law enforcement agency shall preserve the evidence until the discharge date of the person who made the request or on whose behalf the request was made, subject to a court order issued under s. 974.07 (6m), (7) or (8).

AB497-SSA1, s. 26 Section 26. 971.04 (3) of the statutes is amended to read:

AB497-SSA1,14,3 971.04 (3) If the defendant is present at the beginning of the trial and thereafter, during the progress of the trial or before the verdict of the jury has been returned into court, voluntarily absents himself or herself from the presence of the court without leave of the court, the trial or return of verdict of the jury in the case shall not thereby be postponed or delayed, but the trial or submission of said case to the jury for verdict and the return of verdict thereon, if required, shall proceed in all respects as though the defendant were present in court at all times. A defendant need not be present at the pronouncement or entry of an order granting or denying relief under s. 974.02 or, 974.06 or 974.07. If the defendant is not present, the time for appeal from any order under ss. 974.02 and, 974.06 and 974.07 shall commence after a copy has been served upon the attorney representing the defendant, or upon the defendant if he or she appeared without counsel. Service of such an order shall be complete upon mailing. 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, 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.

AB497-SSA1, s. 27 Section 27. 974.02 (1) of the statutes is amended to read:

AB497-SSA1,14,13 974.02 (1) A motion for postconviction relief other than under s. 974.06 or 974.07 by the defendant in a criminal case shall be made in the time and manner provided in ss. 809.30 and 809.40. An appeal by the defendant in a criminal case from a judgment of conviction or from an order denying a postconviction motion or from both shall be taken in the time and manner provided in ss. 808.04 (3), 809.30 and 809.40. An appeal of an order or judgment on habeas corpus remanding to custody a prisoner committed for trial under s. 970.03 shall be taken under ss. 808.03 (2) and 809.50, with notice to the attorney general and the district attorney and opportunity for them to be heard.

AB497-SSA1, s. 28 Section 28. 974.05 (1) (b) of the statutes is amended to read:

AB497-SSA1,14,16 974.05 (1) (b) Order granting postconviction relief under s. 974.02 or, 974.06 or 974.07.

AB497-SSA1, s. 29 Section 29. 974.07 of the statutes is created to read:

AB497-SSA1,14,21 974.07 Motion for postconviction deoxyribonucleic acid testing of certain evidence. (1) In this section, "government agency" means any department or agency of the federal government, of this state or of a city, village, town or county in this state.

AB497-SSA1,15,2 (2) At any time after being convicted of a crime, adjudicated delinquent or found not guilty by reason of mental disease or defect, a person may make a motion in the court in which he or she was convicted, adjudicated delinquent or found not guilty by reason of mental disease or defect for an order requiring forensic deoxyribonucleic acid testing of evidence to which all of the following apply:

AB497-SSA1,15,5 (a) The evidence is relevant to the investigation or prosecution that resulted in the conviction, adjudication or finding of not guilty by reason of mental disease or defect.

AB497-SSA1,15,7 (b) The evidence is in the actual or constructive possession of a government agency.

AB497-SSA1,15,12 (c) The evidence has not previously been subjected to forensic deoxyribonucleic acid testing or, if the evidence has previously been tested, it may now be subjected to another test using a scientific technique that was not available at the time of the previous testing and that provides a reasonable likelihood of more accurate and probative results.

AB497-SSA1,15,21 (3) A person who makes a motion under this section or, if applicable, his or her attorney shall serve a copy of the motion on the district attorney's office that prosecuted the case that resulted in the conviction, adjudication or finding of not guilty by reason of mental disease or defect. The court in which the motion is made shall also notify the appropriate district attorney's office that a motion has been made under this section and shall give the district attorney an opportunity to respond to the motion. Failure by a person making a motion under this section to serve a copy of the motion on the appropriate district attorney's office does not deprive the court of jurisdiction and is not grounds for dismissal of the motion.

AB497-SSA1,16,5 (4) (a) The clerk of the circuit court in which a motion made under this section shall send a copy of the motion and, if a hearing is scheduled, a notice of the hearing on the motion to the victim of the crime or delinquent act committed by the person who made the motion, if the clerk is able to determine an address for the victim. The clerk of the circuit court shall make a reasonable attempt to send the copy of the motion to the address of the victim within 7 days of the date on which the motion is filed and shall make a reasonable attempt to send a notice of hearing, if a hearing is scheduled, to the address of the victim, postmarked at least 10 days before the date of the hearing.

AB497-SSA1,16,12 (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), 302.115 (4), 304.06 (1) (f), 304.063 (4), 938.51 (2), 971.17 (6m) (d) and 980.11 (4), the department of corrections, the parole commission and the department of health and family 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).

AB497-SSA1,16,18 (5) Upon receiving under sub. (3) a copy of a motion made under this section or notice from a court that a motion has been made, whichever occurs first, the district attorney shall take all actions necessary to ensure that all biological material that was collected in connection with the investigation or prosecution of the case and that remains in the actual or constructive custody of a government agency is preserved pending completion of the proceedings under this section.

AB497-SSA1,16,20 (6) A court in which a motion under this section is filed shall order forensic deoxyribonucleic acid testing if all of the following apply:

AB497-SSA1,16,23 (a) The person making the motion claims that he or she is actually innocent of the offense for which he or she was convicted, found not guilty by reason of mental disease or defect or adjudicated delinquent.

AB497-SSA1,17,2 (b) The court determines either that the chain of custody of the evidence to be tested establishes that the evidence has not been tampered with, replaced or altered in any material respect or, if the chain of custody cannot establish the integrity of the evidence, that the testing itself can establish the integrity of the evidence.

AB497-SSA1,17,4 (c) The court determines that the testing may produce noncumulative evidence that is relevant to the person's assertion of actual innocence.

AB497-SSA1,17,9 (6m) If a court in which a motion under this section is filed does not order forensic deoxyribonucleic acid testing, the court shall determine the disposition of the evidence that the motion seeks to have tested and, if the evidence is to be preserved, by whom and for how long. The court shall issue appropriate orders concerning the disposition of the evidence based on its determinations.

AB497-SSA1,17,14 (7) The court may impose reasonable conditions on any testing ordered under this section in order to protect the integrity of the evidence and the testing process. If appropriate and if stipulated to by the person who made the motion under this section and the district attorney, the court may order the state crime laboratories to perform the testing as provided under s. 165.77 (2m).

AB497-SSA1,17,20 (8) (a) If the results of forensic deoxyribonucleic acid testing ordered under this section are unfavorable to the person who made the motion for testing, the court shall determine the disposition of any evidence that remains after the completion of the testing and, if the evidence is to be preserved, by whom and for how long. The court shall issue appropriate orders concerning the disposition of the evidence based on its determinations.

AB497-SSA1,18,2 (b) If the results of forensic deoxyribonucleic acid testing ordered under this section are favorable to the person who made the motion for testing, the court shall schedule a hearing to determine the appropriate relief to be granted to the person. After the hearing, and based on the results of the testing and any evidence or other matter presented at the hearing, the court shall enter any order that serves the interests of justice, including any of the following:

AB497-SSA1,18,5 1. An order setting aside or vacating the person's judgment of conviction, judgment of not guilty by reason of mental disease or defect or adjudication of delinquency.

AB497-SSA1,18,6 2. An order granting the person a new trial or fact-finding hearing.

AB497-SSA1,18,8 3. An order granting the person a new sentencing hearing, commitment hearing or dispositional hearing.

AB497-SSA1,18,10 4. An order discharging the person from custody, as defined in s. 968.205 (1) (a), if the person is in custody.

AB497-SSA1,18,13 5. An order specifying the disposition of any evidence that remains after the completion of the testing and, if the evidence is to be preserved, by whom and for how long.

AB497-SSA1,18,15 (c) A court may order a new trial under par. (b) without making the findings specified in s. 805.15 (3) (a) and (b).

AB497-SSA1,18,19 (9) A court considering a motion made under this section by a person who is not represented by counsel shall, if the person claims or appears to be indigent, refer the person to the state public defender for determination of indigency and appointment of counsel under s. 977.05 (4) (j).

AB497-SSA1,18,24 (10) (a) The court may order a person who makes a motion under this section to pay the costs of any testing ordered by the court under this section if the court determines that the person is not indigent. If the court determines that the person is indigent, the court shall order the costs of the testing to be paid for from the appropriation account under s. 20.410 (1) (be).

AB497-SSA1,18,25 (b) A person is indigent for purposes of par. (a) if any of the following apply:

AB497-SSA1,19,2 1. The person was referred to the state public defender under sub. (9) for a determination of indigency and was found to be indigent.

AB497-SSA1,19,6 2. The person was referred to the state public defender under sub. (9) for a determination of indigency but was found not to be indigent, and the court determines that the person does not possess the financial resources to pay the costs of testing.

AB497-SSA1,19,9 3. The person was not referred to the state public defender under sub. (9) for a determination of indigency and the court determines that the person does not possess the financial resources to pay the costs of testing.

AB497-SSA1,19,11 (11) An appeal may be taken from an order entered under this section as from a final judgment.

AB497-SSA1, s. 30 Section 30. 977.07 (1) (b) of the statutes is amended to read:

AB497-SSA1,19,19 977.07 (1) (b) For referrals not made under ss. 809.30 and, 974.06 and 974.07, a representative of the state public defender is responsible for making indigency determinations unless the county became responsible under s. 977.07 (1) (b) 2. or 3., 1983 stats., for these determinations. Subject to the provisions of par. (bn), those counties may continue to be responsible for making indigency determinations. Any such county may change the agencies or persons who are designated to make indigency determinations only upon the approval of the state public defender.

AB497-SSA1, s. 31 Section 31. 977.07 (1) (c) of the statutes is amended to read:

AB497-SSA1,20,5 977.07 (1) (c) For all referrals made under ss. 809.30 and, 974.06 (3) (b) and 974.07 (9), 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. For 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, the representative of the state public defender 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.

AB497-SSA1, s. 32 Section 32. 978.08 of the statutes is created to read:

AB497-SSA1,20,7 978.08 Preservation of certain evidence. (1) In this section:

AB497-SSA1,20,8 (a) "Custody" has the meaning given in s. 968.205 (1) (a).

AB497-SSA1,20,9 (b) "Discharge date" has the meaning given in s. 968.205 (1) (b).

AB497-SSA1,20,14 (2) Except as provided in sub. (3), if physical evidence that is in the possession of a district attorney includes any biological material that was collected in connection with a criminal action or with a delinquency proceeding under ch. 938, the physical evidence shall be preserved until every person in custody as a result of the criminal action or delinquency proceeding has reached his or her discharge date.

AB497-SSA1,20,16 (3) Subject to sub. (5), a district attorney may destroy biological material before the expiration of the time period specified in sub. (2) if all of the following apply:

AB497-SSA1,20,20 (a) The district attorney sends a notice of its intent to destroy the biological material to all persons who remain in custody as a result of the criminal action or delinquency proceeding and to either the attorney of record for each person in custody or the state public defender.

AB497-SSA1,20,22 (b) No person who is notified under par. (a) does either of the following within 90 days after the date on which the person received the notice:

AB497-SSA1,20,23 1. Files a motion for testing of the biological material under s. 974.07.

AB497-SSA1,20,24 2. Submits a written request to preserve the evidence to the district attorney.

AB497-SSA1,21,2 (c) No other provision of federal or state law requires the district attorney to preserve the biological material.

AB497-SSA1,21,7 (4) A notice provided under sub. (3) (a) shall clearly inform the recipient that the biological material will be destroyed unless, within 90 days after the date on which the person receives the notice, either a motion for testing of the material is filed under s. 974.07 or a written request to preserve the evidence is submitted to the district attorney.

AB497-SSA1,21,12 (5) If, after providing notice under sub. (3) (a) of its intent to destroy biological material, a district attorney receives a written request to preserve the evidence, the district attorney shall preserve the evidence until the discharge date of the person who made the request or on whose behalf the request was made, subject to a court order issued under s. 974.07 (6m), (7) or (8).

AB497-SSA1, s. 33 Section 33. 980.101 of the statutes is created to read:

AB497-SSA1,21,19 980.101 Reversal, vacation or setting aside of judgment relating to a sexually violent offense; effect. (1) In this section, "judgment relating to a sexually violent offense" means a judgment of conviction for a sexually violent offense, an adjudication of delinquency on the basis of a sexually violent offense or a judgment of not guilty of a sexually violent offense by reason of mental disease or defect.

AB497-SSA1,21,25 (2) If, at any time after a person is committed under s. 980.06, a judgment relating to a sexually violent offense committed by the person is reversed, set aside or vacated and that sexually violent offense was a basis for the allegation made in the petition under s. 980.02 (2) (a), the person may bring a motion for postcommitment relief in the court the committed the person. The court shall proceed as follows on the motion for postcommitment relief:

AB497-SSA1,22,4 (a) If the sexually violent offense was the sole basis for the allegation under s. 980.02 (2) (a) and there are no other judgments relating to a sexually violent offense committed by the person, the court shall vacate the commitment order and discharge the person from the custody or supervision of the department.

AB497-SSA1,22,11 (b) If the sexually violent offense was the sole basis for the allegation under s. 980.02 (2) (a) but there are other judgments relating to a sexually violent offense committed by the person that have not been reversed, set aside or vacated, or if the sexually violent offense was not the sole basis for the allegation under s. 980.02 (2) (a), the court shall determine whether to grant the person a new trial under s. 980.05 because the reversal, setting aside or vacating of the judgement for the sexually violent offense would probably change the result of the trial.

AB497-SSA1,22,13 (3) An appeal may be taken from an an order entered under sub. (2) as from a final judgment.

AB497-SSA1, s. 34 Section 34. 980.11 (2) (intro.) of the statutes, as affected by 1999 Wisconsin Act 9, is amended to read:

AB497-SSA1,22,18 980.11 (2) (intro.) If the court places a person on supervised release under s. 980.08 or discharges a person under s. 980.09 or, 980.10 or 980.101 (2) (a), the department shall do all of the following:

AB497-SSA1, s. 35 Section 35. Initial applicability.

AB497-SSA1,22,22 (1) The treatment of section 939.74 (1), (2) (c) and (2d) of the statutes first applies to offenses not barred from prosecution on the effective date of this subsection.

AB497-SSA1,22,23 (End)