Amendment SSA1-AB497

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)