Amendment CA1-SSA1-SB55

SB55-SSA1-CA1,991,18 1. The movant claims that he or she is innocent of the offense at issue in the motion under sub. (2).

SB55-SSA1-CA1,991,23 2. It is reasonably probable that the movant would not have been prosecuted, convicted, found not guilty by reason of mental disease or defect, or adjudicated delinquent for the offense at issue in the motion under sub. (2), if exculpatory deoxyribonucleic acid testing results had been available before the prosecution, conviction, finding of not guilty, or adjudication for the offense.

SB55-SSA1-CA1,991,24 3. The evidence to be tested meets the conditions under sub. (2) (a) to (c).

SB55-SSA1-CA1,992,4 4. 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 does not establish the integrity of the evidence, the testing itself can establish the integrity of the evidence.

SB55-SSA1-CA1,992,6 (b) A court in which a motion under sub. (2) is filed may order forensic deoxyribonucleic acid testing if all of the following apply:

SB55-SSA1-CA1,992,14 1. It is reasonably probable that the outcome of the proceedings that resulted in the conviction, the finding of not guilty by reason of mental disease or defect, or the delinquency adjudication for the offense at issue in the motion under sub. (2), or the terms of the sentence, the commitment under s. 971.17, or the disposition under ch. 938, would have been more favorable to the movant if the results of deoxyribonucleic acid testing had been available before he or she was prosecuted, convicted, found not guilty by reason of mental disease or defect, or adjudicated delinquent for the offense.

SB55-SSA1-CA1,992,15 2. The evidence to be tested meets the conditions under sub. (2) (a) to (c).

SB55-SSA1-CA1,992,19 3. 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 does not establish the integrity of the evidence, the testing itself can establish the integrity of the evidence.

SB55-SSA1-CA1,992,24 (8) 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 movant and the district attorney, the court may order the state crime laboratories to perform the testing as provided under s. 165.77 (2m).

SB55-SSA1-CA1,993,5 (9) If a court in which a motion under sub. (2) is filed does not order forensic deoxyribonucleic acid testing, or if the results of forensic deoxyribonucleic acid testing ordered under this section are not supportive of the movant's claim, the court shall determine the disposition of the evidence specified in the motion subject to the following:

SB55-SSA1-CA1,993,16 (a) If a person other than the movant is in custody, as defined in s. 968.205 (1) (a), the evidence is relevant to the criminal, delinquency, or commitment proceeding that resulted in the person being in custody, the person has not been denied deoxyribonucleic acid testing or postconviction relief under this section, and the person has not waived his or her right to preserve the evidence under s. 165.81 (3), 757.54 (2), 968.205, or 978.08, the court shall order the evidence preserved until all persons entitled to have the evidence preserved are released from custody, and the court shall designate who shall preserve the evidence. The court may not issue an order under this paragraph requiring that an agency transfer evidence to a crime laboratory specified under s. 165.75 for the purpose of preservation of the evidence by the crime laboratory, unless the crime laboratory consents to the transfer.

SB55-SSA1-CA1,993,23 (b) If the conditions in par. (a) are not present, the court shall determine the disposition of the evidence, 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. The court may not issue an order under this paragraph requiring that an agency transfer evidence to a crime laboratory specified under s. 165.75 for the purpose of preservation of the evidence by the crime laboratory, unless the crime laboratory consents to the transfer.

SB55-SSA1-CA1,994,4 (10) (a) If the results of forensic deoxyribonucleic acid testing ordered under this section support the movant's claim, the court shall schedule a hearing to determine the appropriate relief to be granted to the movant. 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:

SB55-SSA1-CA1,994,7 1. An order setting aside or vacating the movant's judgment of conviction, judgment of not guilty by reason of mental disease or defect, or adjudication of delinquency.

SB55-SSA1-CA1,994,8 2. An order granting the movant a new trial or fact-finding hearing.

SB55-SSA1-CA1,994,10 3. An order granting the movant a new sentencing hearing, commitment hearing, or dispositional hearing.

SB55-SSA1-CA1,994,12 4. An order discharging the movant from custody, as defined in s. 968.205 (1) (a), if the movant is in custody.

SB55-SSA1-CA1,994,14 5. An order specifying the disposition of any evidence that remains after the completion of the testing, subject to sub. (9) (a) and (b).

SB55-SSA1-CA1,994,16 (b) A court may order a new trial under par. (a) without making the findings specified in s. 805.15 (3) (a) and (b).

SB55-SSA1-CA1,994,20 (11) A court considering a motion made under sub. (2) by a movant who is not represented by counsel shall, if the movant claims or appears to be indigent, refer the movant to the state public defender for determination of indigency and appointment of counsel under s. 977.05 (4) (j).

SB55-SSA1-CA1,994,25 (12) (a) The court may order a movant to pay the costs of any testing ordered by the court under this section if the court determines that the movant is not indigent. If the court determines that the movant 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).

SB55-SSA1-CA1,995,1 (b) A movant is indigent for purposes of par. (a) if any of the following apply:

SB55-SSA1-CA1,995,3 1. The movant was referred to the state public defender under sub. (11) for a determination of indigency and was found to be indigent.

SB55-SSA1-CA1,995,7 2. The movant was referred to the state public defender under sub. (11) for a determination of indigency but was found not to be indigent, and the court determines that the movant does not possess the financial resources to pay the costs of testing.

SB55-SSA1-CA1,995,10 3. The movant was not referred to the state public defender under sub. (11) for a determination of indigency and the court determines that the movant does not possess the financial resources to pay the costs of testing.

SB55-SSA1-CA1,995,12 (13) An appeal may be taken from an order entered under this section as from a final judgment.".

SB55-SSA1-CA1,995,13 1554. Page 1271, line 7: delete lines 7 to 11.

SB55-SSA1-CA1,995,14 1555. Page 1271, line 13: after that line insert:

SB55-SSA1-CA1,995,15 " Section 4031j. 978.03 (3) of the statutes is amended to read:

SB55-SSA1-CA1,995,21 978.03 (3) Any assistant district attorney under sub. (1), (1m) or (2) must be an attorney admitted to practice law in this state and, except as provided in s. ss. 978.043 and 978.044, may perform any duty required by law to be performed by the district attorney. The district attorney of the prosecutorial unit under sub. (1), (1m), or (2) may appoint such temporary counsel as may be authorized by the department of administration.

SB55-SSA1-CA1, s. 4031p Section 4031p. 978.044 of the statutes is created to read:

SB55-SSA1-CA1,995,24 978.044 Assistants to perform restorative justice services. (1) Definitions. In this section:

SB55-SSA1-CA1,996,1 (a) "Crime" has the meaning given in s. 950.02 (1m).

SB55-SSA1-CA1,996,4 (b) "Offender" means an individual who is, or could be, charged with committing a crime or who is, or could be, the subject of a petition under ch. 938 alleging that he or she has committed a crime.

SB55-SSA1-CA1,996,5 (c) "Victim" has the meaning given in s. 950.02 (4).

SB55-SSA1-CA1,996,10 (2) Duties. The district attorneys of Milwaukee county and the county selected under sub. (4) shall each assign one assistant district attorney in his or her prosecutorial unit to be a restorative justice coordinator. An assistant district attorney assigned under this subsection to be a restorative justice coordinator shall do all the following:

SB55-SSA1-CA1,996,14 (a) Establish restorative justice programs that provide support to the victim, help reintegrate the victim into community life, and provide a forum where an offender may meet with the victim or engage in other activities to do all of the following:

SB55-SSA1-CA1,996,15 1. Discuss the impact of the offender's crime on the victim or on the community.

SB55-SSA1-CA1,996,16 2. Explore potential restorative responses by the offender.

SB55-SSA1-CA1,996,17 3. Provide methods for reintegrating the offender into community life.

SB55-SSA1-CA1,996,19 (b) Provide assistance to the district attorney in other counties relating to the establishment of restorative justice programs, as described in par. (a).

SB55-SSA1-CA1,996,20 (c) Maintain a record of all of the following:

SB55-SSA1-CA1,996,22 1. The amount of time spent implementing the requirements of pars. (a) and (b).

SB55-SSA1-CA1,996,24 2. The number of victims and offenders served by programs established under par. (a).

SB55-SSA1-CA1,996,25 3. The types of offenses addressed by programs established under par. (a).

SB55-SSA1-CA1,997,3 4. The rate of recidivism among offenders served by programs established under par. (a) compared to the rate of recidivism by offenders not served by such programs.

SB55-SSA1-CA1,997,9 (3) Report to department of administration. Annually, on a date specified by the department of administration, the district attorneys of Milwaukee county and the county selected under sub. (4) shall each submit to the department of administration a report summarizing the records under sub. (2) (c) covering the preceding 12-month period. The department of administration shall maintain the information submitted under this subsection by the district attorney.

SB55-SSA1-CA1,997,12 (4) Selection of 2nd county. The attorney general, in consultation with the department of corrections, shall select a county other than Milwaukee county in which restorative justice services are to be provided under sub. (2).

SB55-SSA1-CA1,997,13 (5) Expiration. This section does not apply after June 30, 2005.

SB55-SSA1-CA1, s. 4031r Section 4031r. 978.05 (8) (b) of the statutes is amended to read:

SB55-SSA1-CA1,997,24 978.05 (8) (b) Hire, employ, and supervise his or her staff and, subject to s. ss. 978.043 and 978.044, make appropriate assignments of the staff throughout the prosecutorial unit. The district attorney may request the assistance of district attorneys, deputy district attorneys, or assistant district attorneys from other prosecutorial units or assistant attorneys general who then may appear and assist in the investigation and prosecution of any matter for which a district attorney is responsible under this chapter in like manner as assistants in the prosecutorial unit and with the same authority as the district attorney in the unit in which the action is brought. Nothing in this paragraph limits the authority of counties to regulate the hiring, employment, and supervision of county employees.".

SB55-SSA1-CA1,998,1 1556. Page 1271, line 13: after that line insert:

SB55-SSA1-CA1,998,2 " Section 4031c. 977.07 (1) (b) of the statutes is amended to read:

SB55-SSA1-CA1,998,9 977.07 (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.

SB55-SSA1-CA1, s. 4031e Section 4031e. 977.07 (1) (c) of the statutes is amended to read:

SB55-SSA1-CA1,998,20 977.07 (1) (c) For all referrals made under ss. 809.30 and, 974.06 (3) (b) and 974.07 (11), 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.

SB55-SSA1-CA1, s. 4031s Section 4031s. 978.08 of the statutes is created to read:

SB55-SSA1-CA1,998,22 978.08 Preservation of certain evidence. (1) In this section:

SB55-SSA1-CA1,998,23 (a) "Custody" has the meaning given in s. 968.205 (1) (a).

SB55-SSA1-CA1,998,24 (b) "Discharge date" has the meaning given in s. 968.205 (1) (b).

SB55-SSA1-CA1,999,6 (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 investigation that resulted in a criminal conviction, delinquency adjudication, or commitment under s. 971.17 or 980.06, the district attorney shall preserve the physical evidence until every person in custody as a result of the conviction, adjudication, or commitment has reached his or her discharge date.

SB55-SSA1-CA1,999,8 (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:

SB55-SSA1-CA1,999,12 (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 conviction, delinquency adjudication, or commitment and to either the attorney of record for each person in custody or the state public defender.

SB55-SSA1-CA1,999,14 (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:

SB55-SSA1-CA1,999,15 1. Files a motion for testing of the biological material under s. 974.07 (2).

SB55-SSA1-CA1,999,17 2. Submits a written request to preserve the biological material to the district attorney.

SB55-SSA1-CA1,999,19 (c) No other provision of federal or state law requires the district attorney to preserve the biological material.

SB55-SSA1-CA1,999,24 (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 (2) or a written request to preserve the material is submitted to the district attorney.

SB55-SSA1-CA1,1000,6 (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 material, the district attorney shall preserve the material 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 (7), (9) (a), or (10) (a) 5., unless the court orders destruction or transfer of the biological material under s. 974.07 (9) (b) or (10) (a) 5.".

SB55-SSA1-CA1,1000,7 1557. Page 1280, line 9: after that line insert:

SB55-SSA1-CA1,1000,8 " Section 4034yd. 980.065 (1r) of the statutes is created to read:

SB55-SSA1-CA1,1000,12 980.065 (1r) Notwithstanding sub. (1m), the department may place a female person committed under s. 980.06 at Mendota Mental Health Institute, Winnebago Mental Health Institute, or a privately operated residential facility under contract with the department of health and family services.

SB55-SSA1-CA1, s. 4034ye Section 4034ye. 980.067 of the statutes is created to read:

SB55-SSA1-CA1,1000,17 980.067 Activities off grounds. The superintendent of the facility at which a person is placed under s. 980.065 may allow the person to leave the grounds of the facility under escort. The department of health and family services shall promulgate rules for the administration of this section.".

SB55-SSA1-CA1,1000,18 1558. Page 1280, line 10: delete lines 10 to 22 and substitute:

SB55-SSA1-CA1,1000,19 " Section 4034yg. 980.08 (5) of the statutes is amended to read:

SB55-SSA1-CA1,1002,4 980.08 (5) If the court finds that the person is appropriate for supervised release, the court shall notify the department. The department shall make its best effort to arrange for placement of the person in a residential facility or dwelling that is in the person's county of residence, as determined by the department under s. 980.105. The department and the county department under s. 51.42 in the county of residence of the person, as determined under s. 980.105, shall prepare a plan that identifies the treatment and services, if any, that the person will receive in the community. The plan shall address the person's need, if any, for supervision, counseling, medication, community support services, residential services, vocational services, and alcohol or other drug abuse treatment. In developing a plan for where the person may reside while on supervised release, the department shall consider the proximity of any potential placement to the residence of other persons on supervised release and to the residence of persons who are in the custody of the department of corrections and regarding whom a sex offender notification bulletin has been issued to law enforcement agencies under s. 301.46 (2m) (a) or (am). If the person is a serious child sex offender, the plan shall address the person's need for pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen. The department may contract with a county department, under s. 51.42 (3) (aw) 1. d., with another public agency or with a private agency to provide the treatment and services identified in the plan. The plan shall specify who will be responsible for providing the treatment and services identified in the plan. The plan shall be presented to the court for its approval within 60 days after the court finding that the person is appropriate for supervised release, unless the department, county department and person to be released request additional time to develop the plan. If the county department of the person's county of residence declines to prepare a plan, the department may arrange for another county to prepare the plan if that county agrees to prepare the plan and if the person will be living in that county. If the department is unable to arrange for another county to prepare a plan, the court shall designate a county department to prepare the plan, order the county department to prepare the plan and place the person on supervised release in that county, except that the court may not so designate the county department in any county where there is a facility in which persons committed to institutional care under this chapter are placed unless that county is also the person's county of residence.

SB55-SSA1-CA1, s. 4034yi Section 4034yi. 980.105 of the statutes is amended to read:

SB55-SSA1-CA1,1002,8 980.105 Determination of county of residence. The court department shall determine a person's county of residence for the purposes of this chapter by doing all of the following:

SB55-SSA1-CA1,1002,11 (1) The court department shall consider residence as the voluntary concurrence of physical presence with intent to remain in a place of fixed habitation and shall consider physical presence as prima facie evidence of intent to remain.

SB55-SSA1-CA1,1002,16 (2) The court department shall apply the criteria for consideration of residence and physical presence under sub. (1) to the facts that existed on the date that the person committed the sexually violent offense that resulted in the sentence, placement or commitment that was in effect when the petition was filed under s. 980.02.".

SB55-SSA1-CA1,1002,17 1559. Page 1280, line 23: before that line insert:

SB55-SSA1-CA1,1002,18 " Section 4034ys. 980.101 of the statutes is created to read:

SB55-SSA1-CA1,1002,24 980.101 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.

SB55-SSA1-CA1,1003,6 (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 that committed the person. The court shall proceed as follows on the motion for postcommitment relief:

SB55-SSA1-CA1,1003,12 (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 reverse, set aside, or vacate the judgment under s. 980.05 (5) that the person is a sexually violent person, vacate the commitment order, and discharge the person from the custody or supervision of the department.

SB55-SSA1-CA1,1003,19 (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 judgment for the sexually violent offense would probably change the result of the trial.

SB55-SSA1-CA1,1003,21 (3) An appeal may be taken from an an order entered under sub. (2) as from a final judgment.".

SB55-SSA1-CA1,1003,22 1560. Page 1280, line 23: before that line insert: