SB82-SSA1,881
20Section
881. 973.19 (1) (a) of the statutes is renumbered 974.03 (1) (a) and
21amended to read:
SB82-SSA1,264,222
974.03
(1) (a) A
person defendant sentenced to imprisonment or the intensive
23sanctions program or ordered to pay a fine who has not requested the preparation
24of transcripts under s. 809.30 (2) may, within 90 days after the sentence or order
or
1fine is
entered imposed, move the
circuit court to modify the sentence or the amount
2of the fine.
SB82-SSA1,882
3Section
882. 973.19 (1) (b) of the statutes is renumbered 974.03 (2) and
4amended to read:
SB82-SSA1,264,65
974.03
(2) A
person defendant who has requested transcripts under s. 809.30
6(2) may move for modification of a sentence or fine under s. 809.30 (2) (h).
SB82-SSA1,883
7Section
883. 973.19 (2), (3), (4) and (5) of the statutes are renumbered 974.03
8(1) (b), (c), (d) and (e) and amended to read:
SB82-SSA1,264,119
974.03
(1) (b) Within 90 days after a motion under
sub. (1) par. (a) is filed, the
10circuit court shall enter an order either determining the motion or
, for cause, 11extending the time for doing so by not more than 90 days
for cause.
SB82-SSA1,264,1412
(c) If an order determining a motion under
sub. (1)
par. (a) is not entered timely
13under
sub. (2) par. (b), the motion shall be considered denied and the clerk
of the court 14shall immediately enter an order denying the motion.
SB82-SSA1,264,1715
(d)
An The rules governing civil appeals govern an appeal from an order
16determining a motion under
sub. (1) par. (a)
is governed by the procedure for civil
17appeals.
SB82-SSA1,264,1918
(e) By filing a motion under
sub. (1) par. (a) the defendant waives his or her
19right to file an appeal or postconviction motion under s. 809.30 (2).
SB82-SSA1,884
20Section
884. 973.20 (1g) of the statutes is repealed.
SB82-SSA1,885
21Section
885. 973.20 (1r) of the statutes is amended to read:
SB82-SSA1,265,1722
973.20
(1r) When imposing sentence or ordering probation for any crime, other
23than a crime involving conduct that constitutes domestic abuse under s. 813.12 (1)
24(am) or
968.075 969.27 (1) (a), for which the defendant was convicted, the court, in
25addition to any other penalty authorized by law, shall order the defendant to make
1full or partial restitution under this section to any victim of a crime considered at
2sentencing or, if the victim is deceased, to his or her estate, unless the court finds
3substantial reason not to do so and states the reason on the record. When imposing
4sentence or ordering probation for a crime involving conduct that constitutes
5domestic abuse under s. 813.12 (1) (am) or
968.075
969.27 (1) (a) for which the
6defendant was convicted or that was considered at sentencing, the court, in addition
7to any other penalty authorized by law, shall order the defendant to make full or
8partial restitution under this section to any victim of a crime or, if the victim is
9deceased, to his or her estate, unless the court finds that imposing full or partial
10restitution will create an undue hardship on the defendant or victim and describes
11the undue hardship on the record. Restitution ordered under this section is a
12condition of probation, extended supervision, or parole served by the defendant for
13a crime for which the defendant was convicted. After the termination of probation,
14extended supervision, or parole, or if the defendant is not placed on probation,
15extended supervision, or parole, restitution ordered under this section is enforceable
16in the same manner as a judgment in a civil action by the victim named in the order
17to receive restitution or enforced under ch. 785.
SB82-SSA1,886
18Section
886. 973.20 (9m) of the statutes is amended to read:
SB82-SSA1,266,419
973.20
(9m) When restitution is ordered, the court shall inquire to see if
20recompense has been made under s.
969.13 969.42 (5) (a). If recompense has been
21made and the restitution ordered is less than or equal to the recompense, the
22restitution shall be applied to the payment of costs and, if any restitution remains
23after the payment of costs, to the payment of the judgment. If recompense has been
24made and the restitution ordered is greater than the recompense, the victim shall
25receive an amount equal to the amount of restitution less the amount of recompense
1and the balance shall be applied to the payment of costs and, if any restitution
2remains after the payment of costs, to the payment of the judgment. This subsection
3applies without regard to whether the person who paid the recompense is the person
4who is convicted of the crime.
SB82-SSA1,887
5Section
887. 973.20 (11) (a) of the statutes is amended to read:
SB82-SSA1,266,156
973.20
(11) (a) Except as otherwise provided in this paragraph, the restitution
7order shall require the defendant to deliver the amount of money or property due as
8restitution to the department for transfer to the victim or other person to be
9compensated by a restitution order under this section. If the defendant is not placed
10on probation or sentenced to prison, the court may order that restitution be paid to
11the clerk
of court for transfer to the appropriate person. The court shall impose on
12the defendant a restitution surcharge under ch. 814 equal to 5% of the total amount
13of any restitution, costs, attorney fees, court fees, fines, and surcharges ordered
14under s. 973.05 (1) and imposed under ch. 814, which shall be paid to the department
15or the clerk
of court for administrative expenses under this section.
SB82-SSA1,888
16Section
888. 973.20 (12) (c) of the statutes is amended to read:
SB82-SSA1,266,2017
973.20
(12) (c) If a defendant is subject to more than one order under this
18section and the financial obligations under any order total $50 or less, the
19department or the clerk
of court, whichever is applicable under sub. (11) (a), may pay
20these obligations first.
SB82-SSA1,889
21Section
889. 974.02 of the statutes is amended to read:
SB82-SSA1,267,7
22974.02 Appeals and postconviction relief in criminal cases Direct
23appeals. (1) A motion for postconviction relief other than under s. 974.06 or 974.07
24(2) by the defendant in a criminal case shall be made in the time and manner
25provided in s. 809.30. An appeal by the The defendant
in a criminal case may appeal
1from a judgment of conviction or from an order denying a postconviction motion or
2from both
. A direct appeal from a judgment of conviction shall be taken in the time
3and manner provided in ss. 808.04 (3) and 809.30
to 809.32. An appeal of an order
4or judgment on habeas corpus remanding to custody a prisoner committed for trial
5under s.
970.03 971.042 shall be taken under ss. 808.03 (2) and 809.50, with notice
6to the attorney general and the district attorney and opportunity for them to be
7heard.
SB82-SSA1,267,10
8(2) An appellant is not required to file a postconviction motion in the
trial 9circuit court prior to an appeal if the grounds are sufficiency of the evidence or issues
10previously raised.
SB82-SSA1,890
11Section
890. 974.05 (1) (intro.) of the statutes is amended to read:
SB82-SSA1,267,1412
974.05
(1) (intro.) Within the time period specified by s. 808.04 (4) and in the
13manner provided for civil appeals under chs. 808 and 809,
an appeal may be taken
14by the state
from may appeal any
of the following:
SB82-SSA1,891
15Section
891. 974.05 (1) (a), (b), (c) and (d) (intro.), 1. and 2. of the statutes are
16amended to read:
SB82-SSA1,267,1917
974.05
(1) (a)
Final A final order or judgment adverse to the state, whether
18following a trial or a plea of guilty or no contest, if the appeal would not be prohibited
19by constitutional protections against double jeopardy.
SB82-SSA1,267,2120
(b)
Order An order granting postconviction relief under s. 974.02,
974.03, 21974.06, or 974.07.
SB82-SSA1,267,2322
(c)
Judgment A judgment and sentence or order of probation not authorized by
23law.
SB82-SSA1,267,2524
(d) (intro.)
Order An order or judgment the substantive effect of which results
25in
any of the following:
SB82-SSA1,268,1
11. Quashing an arrest warrant
;.
SB82-SSA1,268,22
2. Suppressing evidence
; or.
SB82-SSA1,892
3Section
892. 974.05 (2) of the statutes is amended to read:
SB82-SSA1,268,64
974.05
(2) If the defendant appeals or prosecutes a writ of error, the state may
5move to review rulings of which it complains
cross-appeal any order, judgment, or
6sentence described in sub. (1) (a) to (d), as provided
by in s. 809.10 (2) (b).
SB82-SSA1,893
7Section
893. 974.05 (3) of the statutes is repealed.
SB82-SSA1,894
8Section
894. 974.06 (title), (1), (2) and (3) (intro.), (a), (b) and (d) of the statutes
9are amended to read:
SB82-SSA1,268,19
10974.06 (title)
Postconviction Collateral postconviction procedure.
(1) 11After At any time after the time for
direct appeal
or postconviction remedy provided
12in s. 974.02 has expired, a prisoner
who is in custody under sentence of a court
or a
13person convicted and placed with a volunteers in probation program under s. 973.11
14claiming and who claims the right to be released upon the ground that the sentence
15was imposed in violation of the U.S. constitution or the constitution or laws of this
16state, that the court
was without lacked jurisdiction to impose
such the sentence, or
17that the sentence
was in excess of exceeded the maximum authorized by law or is
18otherwise subject to collateral
attack review, may move the court which imposed the
19sentence to vacate, set aside
, or correct the sentence.
SB82-SSA1,268,22
20(2) A
copy of the motion
for such relief is a part of the original criminal action,
21is not a separate proceeding and may be made at any time under sub. (1) must be
22served on the district attorney.
SB82-SSA1,268,25
23(2m) A motion under sub. (1) is part of the original criminal action, is not a
24separate proceeding, and may be made at any time. The supreme court may
25prescribe the form of the motion.
SB82-SSA1,269,3
1(3) (intro.) Unless the motion
under sub. (1) and the files and records of the
2action conclusively show that the
person prisoner is entitled to no relief, the court
3shall
do all of the following:
SB82-SSA1,269,54
(a)
Cause a copy of the notice to be served upon
Order the district attorney
who
5shall to file a written response within the time prescribed by the court.
SB82-SSA1,269,106
(b) If it appears that counsel is necessary and if the
defendant prisoner claims
7or appears to be indigent, refer the
person prisoner to the
appellate division of the 8state public defender for an indigency determination and appointment of counsel
9under ch. 977.
The court shall forward a copy of the motion and any response of the
10district attorney to the state public defender.
SB82-SSA1,269,1811
(d) Determine the issues and make findings of fact and conclusions of law. If
12the court finds that
it rendered the judgment
was rendered without jurisdiction,
or 13that the sentence imposed was not authorized by law or is otherwise open to
14collateral
attack review, or that there has been such a denial or infringement of the
15constitutional rights of the
person prisoner as to render the judgment vulnerable to
16collateral
attack review, the court shall vacate and set
aside the judgment
aside and
17shall discharge the
person prisoner or resentence
him or her or the prisoner, grant
18the prisoner a new trial
, or correct the sentence as may appear appropriate.
SB82-SSA1,895
19Section
895. 974.06 (4) of the statutes is amended to read:
SB82-SSA1,270,220
974.06
(4) All grounds for relief available to a
person prisoner under this
21section must be raised in his or her original, supplemental
, or amended motion. Any
22ground finally adjudicated or not so raised, or knowingly, voluntarily
, and
23intelligently waived in the proceeding that resulted in the conviction or sentence or
24in any other proceeding the
person prisoner has taken to secure relief may not be the
25basis for a subsequent motion, unless the court finds a ground for relief asserted
1which that, for sufficient reason
, was not asserted or was inadequately raised in the
2original, supplemental
, or amended motion.
SB82-SSA1,896
3Section
896. 974.06 (5), (6), (7) and (8) of the statutes are amended to read:
SB82-SSA1,270,74
974.06
(5) A Subject to s. 974.08, a court may entertain and determine
such 5a motion
under sub. (1) without requiring the production of the prisoner at the
6hearing. The
court may hear the motion
may be heard by telephone or live
7audiovisual means under s. 807.13.
SB82-SSA1,270,9
8(6) Proceedings under this section shall be considered civil in nature, and the
9burden of proof shall be upon the
person prisoner.
SB82-SSA1,270,11
10(7) An A prisoner may appeal
may be taken from the an order entered on the
11motion
under sub. (1) as
from
if the order were a final judgment.
SB82-SSA1,270,18
12(8) A
court may not entertain a petition for a writ of habeas corpus or an action
13seeking that remedy
in on behalf of a
person prisoner who is authorized to apply for
14relief by motion under
this section shall not be entertained sub. (1) if it appears that
15the
applicant prisoner has failed to
apply for relief, by file a motion
, to under sub. (1)
16with the court which sentenced the
person
prisoner, or that the court has denied the
17person relief motion, unless it also appears that the remedy by motion is inadequate
18or ineffective to test the legality of
his or her
the prisoner's detention.
SB82-SSA1,897
19Section
897. 974.07 (4) (b) of the statutes is amended to read:
SB82-SSA1,271,220
974.07
(4) (b) Notwithstanding the limitation on the disclosure of mailing
21addresses from completed information cards submitted by victims under ss. 51.37
22(10) (dx), 301.046 (4) (d), 301.048 (4m) (d), 301.38 (4), 302.105 (4), 304.06 (1) (f),
23304.063 (4), 938.51 (2),
971.17 971.85 (6m) (d), and 980.11 (4), the department of
24corrections, the parole commission, and the department of health services shall,
25upon request, assist clerks of court in obtaining information regarding the mailing
1address of victims for the purpose of sending copies of motions and notices of hearings
2under par. (a).
SB82-SSA1,898
3Section
898. 974.07 (7) (b) 1. of the statutes is amended to read:
SB82-SSA1,271,114
974.07
(7) (b) 1. It is reasonably probable that the outcome of the proceedings
5that resulted in the conviction, the finding of not guilty by reason of mental disease
6or defect, or the delinquency adjudication for the offense at issue in the motion under
7sub. (2), or the terms of the sentence, the commitment under s.
971.17 971.85, or the
8disposition under ch. 938, would have been more favorable to the movant if the
9results of deoxyribonucleic acid testing had been available before he or she was
10prosecuted, convicted, found not guilty by reason of mental disease or defect, or
11adjudicated delinquent for the offense.
SB82-SSA1,899
12Section
899. 974.07 (9) (a) of the statutes is amended to read:
SB82-SSA1,271,2013
974.07
(9) (a) If a person other than the movant is in custody, as defined in s.
14968.205 968.645 (1) (a), the evidence is relevant to the criminal, delinquency, or
15commitment proceeding that resulted in the person being in custody, the person has
16not been denied deoxyribonucleic acid testing or postconviction relief under this
17section, and the person has not waived his or her right to preserve the evidence under
18s. 165.81 (3), 757.54 (2),
968.205 968.645, or 978.08, the court shall order the evidence
19preserved until all persons entitled to have the evidence preserved are released from
20custody, and the court shall designate who shall preserve the evidence.
SB82-SSA1,900
21Section
900. 974.07 (10) (a) 4. of the statutes is amended to read:
SB82-SSA1,271,2322
974.07
(10) (a) 4. An order discharging the movant from custody, as defined in
23s.
968.205 968.645 (1) (a), if the movant is in custody.
SB82-SSA1,901
24Section
901. 974.08 (title) of the statutes is created to read:
SB82-SSA1,271,25
25974.08 (title)
Defendant's presence at postconviction proceedings.
SB82-SSA1,902
1Section
902. 974.08 (1) of the statutes is created to read:
SB82-SSA1,272,52
974.08
(1) A defendant has the right to be present at a postconviction
3proceeding when the hearing will address substantial issues of fact as to events in
4which the defendant participated and those issues are supported by more than mere
5allegations.
SB82-SSA1,903
6Section
903. 974.08 (2) and (3) of the statutes are created to read:
SB82-SSA1,272,127
974.08
(2) A defendant need not be present at the pronouncement or entry of
8an order granting or denying relief under s. 974.02, 974.03, 974.06, or 974.07. If the
9defendant is not present, the time for appealing the order shall commence after a
10copy has been served upon the defendant's counsel or, if he or she appeared without
11counsel, upon the defendant, except as provided in sub. (3). Service of such an order
12shall be complete upon mailing.
SB82-SSA1,272,17
13(3) A defendant appearing without counsel shall supply the court with his or
14her current mailing address. If the defendant fails to supply the court with a current
15and accurate mailing address, the defendant's failure to receive a copy of the order
16granting or denying relief shall not be a ground for tolling the time in which an appeal
17must be taken.
SB82-SSA1,904
18Section
904. 974.09 (title) of the statutes is created to read:
SB82-SSA1,272,19
19974.09 (title)
Release pending appeal.
SB82-SSA1,905
20Section
905. 977.02 (2m) of the statutes is amended to read:
SB82-SSA1,272,2521
977.02
(2m) Promulgate rules regarding eligibility for legal services under this
22chapter, including legal services for persons who are entitled to be represented by
23counsel without a determination of indigency, as provided in s.
48.23 (4), 51.60
, or 2455.105,
or and for children who are entitled to be represented by counsel without a
25determination of indigency, as provided in s. 48.23 (4) or 938.23 (4).
SB82-SSA1,906
1Section
906. 977.02 (3) (intro.) of the statutes is amended to read:
SB82-SSA1,273,92
977.02
(3) (intro.) Promulgate rules regarding the determination of indigency
3of persons entitled to be represented by counsel, other than persons who are entitled
4to be represented by counsel under s.
48.23, 51.60
, or 55.105
, or
children who are
5entitled to be represented by counsel without a determination of indigency under s.
648.23 or 938.23, including the time period in which the determination must be made
7and the criteria to be used to determine indigency and partial indigency. The rules
8shall specify that, in determining indigency, the representative of the state public
9defender shall do all of the following:
SB82-SSA1,907
10Section
907. 977.02 (4r) of the statutes is amended to read:
SB82-SSA1,273,1411
977.02
(4r) Promulgate rules that establish procedures to provide the
12department of administration with any information concerning the collection of
13payment ordered under s. 48.275 (2), 757.66, 938.275 (2), 973.06 (1) (e)
, or 977.076
14(1).
SB82-SSA1,908
15Section
908. 977.03 (2m) of the statutes is amended to read:
SB82-SSA1,273,1816
977.03
(2m) The board may promulgate rules that establish procedures to
17collect payment ordered under s. 48.275 (2), 757.66, 938.275 (2), 973.06 (1) (e)
, or
18977.076
(1) from a prisoner's prison financial account.
SB82-SSA1,909
19Section
909. 977.05 (4) (gm) of the statutes is amended to read:
SB82-SSA1,274,220
977.05
(4) (gm) In accordance with the standards under pars. (h) and (i), accept
21referrals from judges and courts for the provision of legal services without a
22determination of indigency of persons who are entitled to be represented by counsel
23under s.
48.23, 51.60
, or 55.105
, or children who are entitled to be represented by
24counsel under s. 48.23 or 938.23, appoint counsel in accordance with contracts and
1policies of the board, and inform the referring judge or court of the name and address
2of the specific attorney who has been assigned to the case.
SB82-SSA1,910
3Section
910. 977.05 (4) (h) of the statutes is amended to read:
SB82-SSA1,274,104
977.05
(4) (h) Accept requests for legal services from
children who are entitled
5to be represented by counsel under s. 48.23 or 938.23, from persons who are entitled
6to be represented by counsel under s.
48.23, 51.60
, or 55.105,
or 938.23 and from
7indigent persons who are entitled to be represented by counsel under s.
967.06 8971.013 or who are otherwise so entitled under the constitution or laws of the United
9States or this state and provide such persons with legal services when, in the
10discretion of the state public defender, such provision of legal services is appropriate.
SB82-SSA1,911
11Section
911. 977.05 (4) (j) of the statutes is amended to read:
SB82-SSA1,274,1812
977.05
(4) (j) Subject to sub. (6) (e) and (f), at the request of any person
13determined by the state public defender to be indigent or upon referral of any court,
14prosecute a writ of error, appeal, action or proceeding for habeas corpus or other
15postconviction or post-commitment remedy on behalf of the person before any court,
16if the state public defender determines the case should be pursued. The state public
17defender must pursue the case of any indigent person entitled to counsel under s.
18971.17 971.85 (7) (b) 1. or 980.03 (2) (a).
SB82-SSA1,912
19Section
912. 977.05 (6) (b) 2. of the statutes is amended to read:
SB82-SSA1,274,2220
977.05
(6) (b) 2. The judge
or circuit court commissioner before whom the
21proceedings shall be held certifies to the state public defender that the person will
22not be incarcerated if he or she is found in contempt of court.
SB82-SSA1,913
23Section
913. 977.05 (6) (e) (intro.) and 2. of the statutes are amended to read:
SB82-SSA1,275,324
977.05
(6) (e) (intro.) The state public defender may not provide legal services
25or assign counsel for a person who files a motion to modify sentence under s.
973.19
1974.03 (1) (a), or for a person who appeals, under s.
973.19 (4) 974.03 (1) (d), the denial
2of a motion to modify sentence filed under s.
973.19
974.03 (1) (a), unless the person
3does one of the following:
SB82-SSA1,275,54
2. Files the motion to modify sentence under s.
973.19 974.03 (1) (a) within 20
5days after the sentence or order is entered.
SB82-SSA1,914
6Section
914. 977.06 (2) (a) of the statutes is amended to read:
SB82-SSA1,275,167
977.06
(2) (a) A person seeking to have counsel assigned for him or her under
8s. 977.08, other than a person who is entitled to be represented by counsel under s.
948.23, 51.60
, or 55.105
, or
a child who is entitled to be represented by counsel under
10s. 48.23 or 938.23, shall sign a statement declaring that he or she has not disposed
11of any assets for the purpose of qualifying for that assignment of counsel. If the
12representative or authority making the indigency determination finds that any asset
13was disposed of for less than its fair market value for the purpose of obtaining that
14assignment of counsel, the asset shall be counted under rules promulgated under s.
15977.02 (3) at its fair market value at the time it was disposed of, minus the amount
16of compensation received for the asset.
SB82-SSA1,915
17Section
915. 977.06 (2) (am) of the statutes is amended to read:
SB82-SSA1,275,2418
977.06
(2) (am) A person seeking to have counsel assigned for him or her under
19s. 977.08, other than a person who is entitled to be represented by counsel under s.
2048.23, 51.60
, or 55.105
, or a child who is entitled to be represented by counsel under
21s. 48.23 or 938.23, shall sign a statement declaring that the information that he or
22she has given to determine eligibility for assignment of counsel he or she believes to
23be true and that he or she is informed that he or she is subject to the penalty under
24par. (b).
SB82-SSA1,916
25Section
916. 977.06 (3) (b) of the statutes is amended to read: