Amendment SSA1-AB497

LRBs0375/4

JEO&MGD:jlg:hmh

1999 - 2000 LEGISLATURE

SENATE SUBSTITUTE AMENDMENT 1, TO 1999 ASSEMBLY BILL 497

March 28, 2000 - Offered by Committee on Judiciary and Consumer Affairs.

AB497-SSA1,1,11 An Act to renumber and amend 757.54; to amend 165.81 (1), 301.45 (3) (a) 3r., 801.02 (7) (a) 2. c., 805.15 (3) (intro.), 808.075 (4) (h), 809.30 (1) (a), 809.30 (2) (L), 938.46, 939.74 (1), 939.74 (2) (c), 950.04 (1v) (s), 950.04 (1v) (xm), 968.20 (1) (intro.), 968.20 (2), 968.20 (4), 971.04 (3), 974.02 (1), 974.05 (1) (b), 977.07 (1) (b), 977.07 (1) (c) and 980.11 (2) (intro.); and to create 20.410 (1) (be), 165.77 (2m), 165.81 (3), 757.54 (2), 805.16 (5), 939.74 (2d), 950.04 (1v) (yd), 968.205, 974.07, 978.08 and 980.101 of the statutes; relating to: preservation and maintenance of certain evidence, time limits for prosecution of certain crimes of sexual assault, postconviction motions for testing of certain evidence and certain postcommitment motions in sexually violent person commitment proceedings.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB497-SSA1, s. 1 Section 1. 20.005 (3) (schedule) of the statutes: at the appropriate place, insert the following amounts for the purposes indicated: - See PDF for table

AB497-SSA1, s. 2 Section 2. 20.410 (1) (be) of the statutes is created to read:

AB497-SSA1,2,7 20.410 (1) (be) Postconviction evidence testing costs. The amounts in the schedule for the costs of performing forensic deoxyribonucleic acid testing for indigent persons under s. 974.07, pursuant to a court order issued under s. 974.07 (10).

AB497-SSA1, s. 3 Section 3. 165.77 (2m) of the statutes is created to read:

AB497-SSA1,2,12 165.77 (2m) (a) If the laboratories receive biological material pursuant to the order of a court issued under s. 974.07 (7), the laboratories shall analyze the deoxyribonucleic acid in the material and submit the results of the analysis to the court that ordered the analysis.

AB497-SSA1,3,2 (b) The laboratories may compare the data obtained from material received under par. (a) with data obtained from other specimens. The laboratories may make data obtained from any analysis and comparison available to law enforcement agencies in connection with criminal or delinquency investigations and, upon request, to any prosecutor, defense attorney or subject of the data. The data may be used in criminal and delinquency actions and proceedings. In this state, the use is subject to s. 972.11 (5). The laboratories shall not include data obtained from deoxyribonucleic acid analysis of material received under this paragraph in the data bank under sub. (3).

AB497-SSA1,3,4 (c) Paragraph (b) does not apply to specimens received under s. 51.20 (13) (cr), 165.76, 938.34 (15), 971.17 (1m) (a), 973.047 or 980.063.

AB497-SSA1, s. 4 Section 4. 165.81 (1) of the statutes is amended to read:

AB497-SSA1,3,16 165.81 (1) Whenever the department is informed by the submitting officer or agency that physical evidence in the possession of the laboratories is no longer needed the department may, except as provided in sub. (3) or unless otherwise provided by law, either destroy the same, retain it in the laboratories or turn it over to the University of Wisconsin upon the request of the head of any department. Whenever Except as provided in sub. (3), whenever the department receives information from which it appears probable that the evidence is no longer needed, the department may give written notice to the submitting agency and the appropriate district attorney, by registered mail, of the intention to dispose of the evidence. If no objection is received within 20 days after the notice was mailed, it may dispose of the evidence.

AB497-SSA1, s. 5 Section 5. 165.81 (3) of the statutes is created to read:

AB497-SSA1,3,18 165.81 (3) (a) In this subsection:

AB497-SSA1,3,19 1. "Custody" has the meaning given in s. 968.205 (1) (a).

AB497-SSA1,3,20 2. "Discharge date" has the meaning given in s. 968.205 (1) (b).

AB497-SSA1,3,25 (b) Except as provided in par. (c), if physical evidence that is in the possession of the laboratories 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-SSA1,4,2 (c) Subject to par. (e), the department may destroy biological material before the expiration of the time period specified in par. (b) if all of the following apply:

AB497-SSA1,4,6 1. The department 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-SSA1,4,8 2. No person who is notified under subd. 1. does either of the following within 90 days after the date on which the person received the notice:

AB497-SSA1,4,9 a. Files a motion for testing of the biological material under s. 974.07.

AB497-SSA1,4,10 b. Submits a written request to preserve the evidence to the department.

AB497-SSA1,4,12 3. No other provision of federal or state law requires the department to preserve the biological material.

AB497-SSA1,4,17 (d) A notice provided under par. (c) 1. 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 department.

AB497-SSA1,4,22 (e) If, after providing notice under par. (c) 1. of its intent to destroy biological material, the department receives a written request to preserve the evidence, the department 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. 6 Section 6. 301.45 (3) (a) 3r. of the statutes, as affected by 1999 Wisconsin Act 9, is amended to read:

AB497-SSA1,5,4 301.45 (3) (a) 3r. If the person has been committed under ch. 980, he or she is subject to this subsection upon being placed on supervised release under s. 980.06 (2), 1997 stats., or s. 980.08 or, if he or she was not placed on supervised release, before being discharged under s. 980.09 or, 980.10 or 980.101 (2) (a).

AB497-SSA1, s. 7 Section 7. 757.54 of the statutes is renumbered 757.54 (1) and amended to read:

AB497-SSA1,5,10 757.54 (1) The Except as provided in sub. (2), the retention and disposal of all court records and exhibits in any civil or criminal action or proceeding or probate proceeding of any nature in a court of record shall be determined by the supreme court by rule.

AB497-SSA1, s. 8 Section 8. 757.54 (2) of the statutes is created to read:

AB497-SSA1,5,12 757.54 (2) (a) In this subsection:

AB497-SSA1,5,13 1. "Custody" has the meaning given in s. 968.205 (1) (a).

AB497-SSA1,5,14 2. "Discharge date" has the meaning given in s. 968.205 (1) (b).

AB497-SSA1,5,19 (b) Except as provided in par. (c), if an exhibit in a criminal action or a delinquency proceeding under ch. 938 includes any biological material that was collected in connection with the action or proceeding , the exhibit 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-SSA1,5,21 (c) Subject to par. (e), the court may destroy biological material before the expiration of the time period specified in par. (b) if all of the following apply:

AB497-SSA1,5,25 1. The court 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-SSA1,6,2 2. No person who is notified under subd. 1. does either of the following within 90 days after the date on which the person received the notice:

AB497-SSA1,6,3 a. Files a motion for testing of the biological material under s. 974.07.

AB497-SSA1,6,4 b. Submits a written request to preserve the evidence to the court.

AB497-SSA1,6,6 3. No other provision of federal or state law requires the court to preserve the biological material.

AB497-SSA1,6,11 (d) A notice provided under par. (c) 1. 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 court.

AB497-SSA1,6,16 (e) If, after providing notice under par. (c) 1. of its intent to destroy biological material, a court receives a written request to preserve the evidence, the court 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. 9 Section 9. 801.02 (7) (a) 2. c. of the statutes is amended to read:

AB497-SSA1,6,21 801.02 (7) (a) 2. c. A person bringing an action seeking relief from a judgment of conviction or a sentence of a court, including an action for an extraordinary writ or a supervisory writ seeking relief from a judgment of conviction or a sentence of a court or an action under s. 809.30, 809.40, 973.19 or , 974.06 or 974.07.

AB497-SSA1, s. 10 Section 10. 805.15 (3) (intro.) of the statutes is amended to read:

AB497-SSA1,6,25 805.15 (3) (intro.) A Except as provided in ss. 974.07 (8) (c) and 980.101 (2) (b), a new trial shall be ordered on the grounds of newly-discovered evidence if the court finds that:

AB497-SSA1, s. 11 Section 11. 805.16 (5) of the statutes is created to read:

AB497-SSA1,7,3 805.16 (5) The time limits in this section for filing motions do not apply to motions made under s. 974.07 or 980.101.

AB497-SSA1, s. 12 Section 12. 808.075 (4) (h) of the statutes is amended to read:

AB497-SSA1,7,7 808.075 (4) (h) Commitment, supervised release, recommitment and discharge and postcommitment relief under ss. 980.06, 980.08, 980.09 and, 980.10 and 980.101 of a person found to be a sexually violent person under ch. 980.

AB497-SSA1, s. 13 Section 13. 809.30 (1) (a) of the statutes is amended to read:

AB497-SSA1,7,15 809.30 (1) (a) "Postconviction relief" means, in a felony or misdemeanor case, an appeal or a motion for postconviction relief other than a motion under s. 973.19 or, 974.06 or 974.07. In a ch. 48, 51, 55 or 938 case, other than a termination of parental rights case under s. 48.43, it means an appeal or a motion for reconsideration by the trial court of its final judgment or order; in such cases a notice of intent to pursue such relief or a motion for such relief need not be styled as seeking "postconviction" relief.

AB497-SSA1, s. 14 Section 14. 809.30 (2) (L) of the statutes is amended to read:

AB497-SSA1,7,18 809.30 (2) (L) An appeal under s. 974.06 or 974.07 is governed by the procedures for civil appeals.

AB497-SSA1, s. 15 Section 15. 938.46 of the statutes is amended to read:

AB497-SSA1,8,2 938.46 New evidence. A juvenile whose status is adjudicated by the court under this chapter, or the juvenile's parent, guardian or legal custodian, may at any time within one year after the entering of the court's order petition the court for a rehearing on the ground that new evidence has been discovered affecting the advisability of the court's original adjudication. Upon a showing that such evidence does exist, the court shall order a new hearing. This section does not apply to motions made under s. 974.07.

AB497-SSA1, s. 16 Section 16. 939.74 (1) of the statutes is amended to read:

AB497-SSA1,8,8 939.74 (1) Except as provided in sub. subs. (2), and (2d) and s. 946.88 (1), prosecution for a felony must be commenced within 6 years and prosecution for a misdemeanor or for adultery within 3 years after the commission thereof. Within the meaning of this section, a prosecution has commenced when a warrant or summons is issued, an indictment is found, or an information is filed.

AB497-SSA1, s. 17 Section 17. 939.74 (2) (c) of the statutes is amended to read:

AB497-SSA1,8,13 939.74 (2) (c) A prosecution for violation of s. 948.02, 948.025, 948.03 (2) (a), 948.05, 948.06, 948.07 (1), (2), (3) or (4), 948.08 or 948.095 shall be commenced before the victim reaches the age of 31 years or be barred, except as provided in sub. (2d) (d).

AB497-SSA1, s. 18 Section 18. 939.74 (2d) of the statutes is created to read:

AB497-SSA1,8,17 939.74 (2d) (a) In this subsection, "deoxyribonucleic acid profile" means any analysis of deoxyribonucleic acid that results in the identification of an individual's patterned chemical structure of genetic information.

AB497-SSA1,9,5 (b) In a case in which the state has evidence of a deoxyribonucleic acid profile of a person and the state believes the evidence may identify a person who committed a violation of s. 940.225 (1) or (2), 948.02 (1) or (2) or 948.025 but comparisons of the evidence to deoxyribonucleic acid profiles of known persons have not resulted in a probable identification of the person, the state may, before the expiration of the time limit under sub. (1) or (2) (c), whichever is applicable, request the circuit court in the county in which the violation is believed to have been committed to determine whether there is probable cause to believe that the evidence of the deoxyribonucleic acid profile is evidence of the identification of a person who committed the violation. A request under this paragraph shall be made and heard ex parte. The court shall make a written record of the proceeding that shall remain secret unless a prosecution for the violation is commenced, in which case the record shall be made available to both the state and any defendant in that prosecution.

AB497-SSA1,9,12 (c) Notwithstanding that the time limitation under sub. (1) has expired, if the state has evidence of a deoxyribonucleic acid profile of a person and a court found under par. (b) that there is probable cause to believe that the evidence of the deoxyribonucleic acid profile is evidence of the identification of a person who committed a violation of s. 940.225 (1) or (2), a prosecution for the violation may be commenced within one year after a comparison of the deoxyribonucleic acid profile evidence relating to the violation results in a probable identification of the person.

AB497-SSA1,9,20 (d) Notwithstanding that the time limitation under sub. (2) (c) has expired, if the state has evidence of a deoxyribonucleic acid profile of a person and a court found under par. (b) that there is probable cause to believe that the evidence of the deoxyribonucleic acid profile is evidence of the identification of a person who committed a violation of s. 948.02 (1) or (2) or 948.025, a prosecution for the violation may be commenced within one year after a comparison of the deoxyribonucleic acid profile evidence relating to the violation results in a probable identification of the person.

AB497-SSA1, s. 19 Section 19. 950.04 (1v) (s) of the statutes is amended to read:

AB497-SSA1,9,25 950.04 (1v) (s) To have any stolen or other personal property expeditiously returned by law enforcement agencies when no longer needed as evidence , subject to s. 968.205. If feasible, all such property, except weapons, currency, contraband, property subject to evidentiary analysis, property subject to preservation under s. 968.205 and property the ownership of which is disputed, shall be returned to the person within 10 days of being taken.

AB497-SSA1, s. 20 Section 20. 950.04 (1v) (xm) of the statutes, as affected by 1999 Wisconsin Act 9, is amended to read:

AB497-SSA1,10,7 950.04 (1v) (xm) To have the department of health and family services make a reasonable attempt to notify the victim under s. 980.11 regarding supervised release under s. 980.08 and discharge under s. 980.09 or , 980.10 or 980.101 (2) (a).