Amendment SA2-SSA1-SB55

SB55-SSA1-SA2,642,8 (5) Upon receiving under sub. (3) a copy of a motion made under sub. (2) 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.

SB55-SSA1-SA2,642,11 (6) (a) Upon demand the district attorney shall disclose to the movant or his or her attorney whether biological material has been tested and shall make available to the movant or his or her attorney the following material:

SB55-SSA1-SA2,642,12 1. Findings based on testing of biological materials.

SB55-SSA1-SA2,642,15 2. Physical evidence that is in the actual or constructive possession of a government agency and that contains biological material or on which there is biological material.

SB55-SSA1-SA2,642,18 (b) Upon demand the movant or his or her attorney shall disclose to the district attorney whether biological material has been tested and shall make available to the district attorney the following material:

SB55-SSA1-SA2,642,19 1. Findings based on testing of biological materials.

SB55-SSA1-SA2,642,20 2. The movant's biological specimen.

SB55-SSA1-SA2,642,23 (c) Upon motion of the district attorney or the movant, the court may impose reasonable conditions on availability of material requested under pars. (a) 2. and (b) 2. in order to protect the integrity of the evidence.

SB55-SSA1-SA2,643,3 (d) This subsection does not apply unless the information being disclosed or the material being made available is relevant to the movant's claim of innocence at issue in the motion made under sub. (2).

SB55-SSA1-SA2,643,5 (7) (a) A court in which a motion under sub. (2) is filed shall order forensic deoxyribonucleic acid testing if all of the following apply:

SB55-SSA1-SA2,643,10 1. 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-SA2,643,12 2. The evidence is in the actual or constructive possession of a government agency.

SB55-SSA1-SA2,643,16 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-SA2,643,21 4. 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 or was not utilized at the time of the previous testing and that provides a reasonable likelihood of more accurate and probative results.

SB55-SSA1-SA2,643,24 (b) A court in which a motion under sub. (2) is filed may order forensic deoxyribonucleic acid testing if all of the following apply or if the court determines that testing is in the interest of justice:

SB55-SSA1-SA2,644,6 1. The conviction or sentence in a criminal proceeding, the finding of not guilty by reason of mental disease or defect, the commitment under s. 971.17, or the adjudication or disposition in a proceeding 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-SA2,644,8 2. The evidence is in the actual or constructive possession of a government agency.

SB55-SSA1-SA2,644,12 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-SA2,644,17 4. 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 or was not utilized at the time of the previous testing and that provides a reasonable likelihood of more accurate and probative results.

SB55-SSA1-SA2,644,22 (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-SA2,645,2 (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 innocence claim, the court shall determine the disposition of the evidence specified in the motion subject to the following:

SB55-SSA1-SA2,645,10 (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.

SB55-SSA1-SA2,645,14 (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.

SB55-SSA1-SA2,645,20 (10) (a) If the results of forensic deoxyribonucleic acid testing ordered under this section support the movant's claim of innocence, 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-SA2,645,23 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-SA2,645,24 2. An order granting the movant a new trial or fact-finding hearing.

SB55-SSA1-SA2,646,2 3. An order granting the movant a new sentencing hearing, commitment hearing, or dispositional hearing.

SB55-SSA1-SA2,646,4 4. An order discharging the movant from custody, as defined in s. 968.205 (1) (a), if the movant is in custody.

SB55-SSA1-SA2,646,6 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-SA2,646,8 (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-SA2,646,12 (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-SA2,646,17 (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-SA2,646,18 (b) A movant is indigent for purposes of par. (a) if any of the following apply:

SB55-SSA1-SA2,646,20 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-SA2,646,24 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-SA2,647,3 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-SA2,647,5 (13) An appeal may be taken from an order entered under this section as from a final judgment.".

SB55-SSA1-SA2,647,6 1361. Page 1271, line 7: delete lines 7 to 11.

SB55-SSA1-SA2,647,7 1362. Page 1271, line 13: after that line insert:

SB55-SSA1-SA2,647,8 " Section 4031c. 977.07 (1) (b) of the statutes is amended to read:

SB55-SSA1-SA2,647,15 977.07 (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-SA2, s. 4031e Section 4031e. 977.07 (1) (c) of the statutes is amended to read:

SB55-SSA1-SA2,648,2 977.07 (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-SA2, s. 4031s Section 4031s. 978.08 of the statutes is created to read:

SB55-SSA1-SA2,648,4 978.08 Preservation of certain evidence. (1) In this section:

SB55-SSA1-SA2,648,5 (a) "Custody" has the meaning given in s. 968.205 (1) (a).

SB55-SSA1-SA2,648,6 (b) "Discharge date" has the meaning given in s. 968.205 (1) (b).

SB55-SSA1-SA2,648,12 (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-SA2,648,14 (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-SA2,648,18 (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-SA2,648,20 (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-SA2,648,21 1. Files a motion for testing of the biological material under s. 974.07 (2).

SB55-SSA1-SA2,648,23 2. Submits a written request to preserve the biological material to the district attorney.

SB55-SSA1-SA2,648,25 (c) No other provision of federal or state law requires the district attorney to preserve the biological material.

SB55-SSA1-SA2,649,5 (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 (2) or a written request to preserve the material is submitted to the district attorney.

SB55-SSA1-SA2,649,11 (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 authorizes destruction of the biological material under s. 974.07 (9) (b) or (10) (a) 5.".

SB55-SSA1-SA2,649,12 1363. Page 1280, line 9: after that line insert:

SB55-SSA1-SA2,649,13 " Section 4034ycc. 980.01 (1) of the statutes is renumbered 980.01 (1r).

SB55-SSA1-SA2, s. 4034ycd Section 4034ycd. 980.01 (1g) of the statutes is created to read:

SB55-SSA1-SA2,649,16 980.01 (1g) "County department" means a county department of community programs created in accordance with s. 51.42 (3) (a).

SB55-SSA1-SA2, s. 4034yce Section 4034yce. 980.01 (1m) of the statutes is created to read:

SB55-SSA1-SA2,649,20 980.01 (1m) "County of residence" means the county in which a person is considered to reside for purposes of this chapter as determined under s. 980.015 by the agency with jurisdiction.

SB55-SSA1-SA2, s. 4034ycf Section 4034ycf. 980.015 (1) of the statutes is renumbered 980.01 (1d) and amended to read:

SB55-SSA1-SA2,649,24 980.01 (1d) In this section, "agency "Agency with jurisdiction" means the agency with the authority or duty to release or discharge the a person.

SB55-SSA1-SA2, s. 4034ycg Section 4034ycg. 980.015 (2) (intro.) of the statutes is amended to read:

SB55-SSA1-SA2,650,7 980.015 (2) (intro.) If an agency with jurisdiction has control or custody over a person who may meet the criteria for commitment as a sexually violent person, after determining the person's county of residence as provided under sub. (5), the agency with jurisdiction shall inform each appropriate district attorney and the department of justice regarding the person as soon as possible beginning 3 months prior to the applicable date of the following:

SB55-SSA1-SA2, s. 4034ych Section 4034ych. 980.02 (1) (a) of the statutes is amended to read:

SB55-SSA1-SA2,650,12 980.02 (1) (a) The department of justice at the request of the agency with jurisdiction, as defined in s. 980.015 (1), over the person. If the department of justice decides to file a petition under this paragraph, it shall file the petition before the date of the release or discharge of the person.

SB55-SSA1-SA2, s. 4034yci Section 4034yci. 980.02 (1) (am) of the statutes is created to read:

SB55-SSA1-SA2,650,15 980.02 (1) (am) If the department of justice does not file a petition under par. (a), the district attorney for the person's county of residence.

SB55-SSA1-SA2, s. 4034ycj Section 4034ycj. 980.02 (1) (b) (intro.) of the statutes is amended to read:

SB55-SSA1-SA2,650,19 980.02 (1) (b) (intro.) If the department of justice does not file a petition under par. (a), and the district attorney for the person's county of residence does not file a petition under par. (am), the district attorney for one of the following:

SB55-SSA1-SA2, s. 4034yck Section 4034yck. 980.02 (4) (c) of the statutes is created to read:

SB55-SSA1-SA2,650,21 980.02 (4) (c) The circuit court in the person's county of residence.

SB55-SSA1-SA2, s. 4034ycL Section 4034ycL. 980.02 (6) of the statutes is created to read:

SB55-SSA1-SA2,651,2 980.02 (6) Upon request from the district attorney for the person's county of residence, an action commenced by filing a petition under this section in a circuit court for a county other than the person's county of residence shall be transferred to the circuit court for the person's county of residence.

SB55-SSA1-SA2, s. 4034ycm Section 4034ycm. 980.03 (1) of the statutes is amended to read:

SB55-SSA1-SA2,651,9 980.03 (1) The circuit court in which a petition under s. 980.02 is filed or, if an action is transferred under s. 980.02 (6), the court to which the action was transferred, shall conduct all hearings under this chapter. The court shall give the person who is the subject of the petition reasonable notice of the time and place of each such hearing. The court may designate additional persons to receive these notices.

SB55-SSA1-SA2, s. 4034ycn Section 4034ycn. 980.05 (5) of the statutes is amended to read:

SB55-SSA1-SA2,651,17 980.05 (5) If the court or jury determines that the person who is the subject of a petition under s. 980.02 is a sexually violent person, the court shall enter a judgment on that finding, shall notify the county department for the person's county of residence of that finding, and shall commit the person as provided under s. 980.06. If the court or jury is not satisfied beyond a reasonable doubt that the person is a sexually violent person, the court shall dismiss the petition and direct that the person be released unless he or she is under some other lawful restriction.

SB55-SSA1-SA2, s. 4034yco Section 4034yco. 980.07 (2) of the statutes is amended to read:

SB55-SSA1-SA2,651,24 980.07 (2) Any examiner conducting an examination under this section shall prepare a written report of the examination no later than 30 days after the date of the examination. The examiner shall place a copy of the report in the person's medical records and shall provide a copy of the report to the court that committed the person under s. 980.06 and to the county department for the person's county of residence.

SB55-SSA1-SA2, s. 4034ycp Section 4034ycp. 980.08 (2) of the statutes is amended to read:

SB55-SSA1-SA2,652,8 980.08 (2) If the person files a timely petition without counsel, the court shall serve a copy of the petition on the district attorney or department of justice, whichever is applicable, and on the county department for the person's county of residence and, subject to s. 980.03 (2) (a), refer the matter to the authority for indigency determinations under s. 977.07 (1) and appointment of counsel under s. 977.05 (4) (j). If the person petitions through counsel, his or her attorney shall serve the district attorney or department of justice, whichever is applicable , and the county department for the person's county of residence.

SB55-SSA1-SA2, s. 4034ycq Section 4034ycq. 980.08 (3) of the statutes is amended to read:

SB55-SSA1-SA2,652,23 980.08 (3) Within 20 days after receipt of the petition, the court shall appoint one or more examiners having the specialized knowledge determined by the court to be appropriate, who shall examine the person and furnish a written report of the examination to the court within 30 days after appointment. The examiners shall have reasonable access to the person for purposes of examination and to the person's past and present treatment records, as defined in s. 51.30 (1) (b), and patient health care records, as provided under s. 146.82 (2) (c). If any such examiner appointed under this subsection believes that the person is appropriate for supervised release under the criterion specified in sub. (4), the examiner shall report on the type of treatment and services that the person may need while in the community on supervised release and shall furnish a copy of the written report of the examination to the county department for the person's county of residence at the time that the examiner furnishes the report to the court. The county shall pay the costs of an examiner appointed under this subsection as provided under s. 51.20 (18) (a).

SB55-SSA1-SA2, s. 4034ycr Section 4034ycr. 980.08 (3m) of the statutes is created to read:

SB55-SSA1-SA2,653,6 980.08 (3m) A county department that receives a copy of an examiner's report under sub. (3) shall identify a residence in which the person may live if the court grants the person's petition under this section for supervised release. The identification of a residence by the county department is subject to approval by the department. The county department shall provide the court a written description of the residence before the hearing under sub. (4).

SB55-SSA1-SA2, s. 4034ycs Section 4034ycs. 980.08 (5) of the statutes is amended to read: