Amendment SSA1-SB82

SB82-SSA1,267,21 (b) Order An order granting postconviction relief under s. 974.02, 974.03, 974.06, or 974.07.

SB82-SSA1,267,23 (c) Judgment A judgment and sentence or order of probation not authorized by law.

SB82-SSA1,267,25 (d) (intro.) Order An order or judgment the substantive effect of which results in any of the following:

SB82-SSA1,268,1 1. Quashing an arrest warrant;.

SB82-SSA1,268,2 2. Suppressing evidence; or.

SB82-SSA1,892 Section 892. 974.05 (2) of the statutes is amended to read:

SB82-SSA1,268,6 974.05 (2) If the defendant appeals or prosecutes a writ of error, the state may move to review rulings of which it complains cross-appeal any order, judgment, or sentence described in sub. (1) (a) to (d), as provided by in s. 809.10 (2) (b).

SB82-SSA1,893 Section 893. 974.05 (3) of the statutes is repealed.

SB82-SSA1,894 Section 894. 974.06 (title), (1), (2) and (3) (intro.), (a), (b) and (d) of the statutes are amended to read:

SB82-SSA1,268,19 974.06 (title) Postconviction Collateral postconviction procedure. (1) After At any time after the time for direct appeal or postconviction remedy provided in s. 974.02 has expired, a prisoner who is in custody under sentence of a court or a person convicted and placed with a volunteers in probation program under s. 973.11 claiming and who claims the right to be released upon the ground that the sentence was imposed in violation of the U.S. constitution or the constitution or laws of this state, that the court was without lacked jurisdiction to impose such the sentence, or that the sentence was in excess of exceeded the maximum authorized by law or is otherwise subject to collateral attack review, may move the court which imposed the sentence to vacate, set aside, or correct the sentence.

SB82-SSA1,268,22 (2) A copy of the motion for such relief is a part of the original criminal action, is not a separate proceeding and may be made at any time under sub. (1) must be served on the district attorney.

SB82-SSA1,268,25 (2m) A motion under sub. (1) is part of the original criminal action, is not a separate proceeding, and may be made at any time. The supreme court may prescribe the form of the motion.

SB82-SSA1,269,3 (3) (intro.) Unless the motion under sub. (1) and the files and records of the action conclusively show that the person prisoner is entitled to no relief, the court shall do all of the following:

SB82-SSA1,269,5 (a) Cause a copy of the notice to be served upon Order the district attorney who shall to file a written response within the time prescribed by the court.

SB82-SSA1,269,10 (b) If it appears that counsel is necessary and if the defendant prisoner claims or appears to be indigent, refer the person prisoner to the appellate division of the state public defender for an indigency determination and appointment of counsel under ch. 977. The court shall forward a copy of the motion and any response of the district attorney to the state public defender.

SB82-SSA1,269,18 (d) Determine the issues and make findings of fact and conclusions of law. If the court finds that it rendered the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or is otherwise open to collateral attack review, or that there has been such a denial or infringement of the constitutional rights of the person prisoner as to render the judgment vulnerable to collateral attack review, the court shall vacate and set aside the judgment aside and shall discharge the person prisoner or resentence him or her or the prisoner, grant the prisoner a new trial, or correct the sentence as may appear appropriate.

SB82-SSA1,895 Section 895. 974.06 (4) of the statutes is amended to read:

SB82-SSA1,270,2 974.06 (4) All grounds for relief available to a person prisoner under this section must be raised in his or her original, supplemental, or amended motion. Any ground finally adjudicated or not so raised, or knowingly, voluntarily , and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the person prisoner has taken to secure relief may not be the basis for a subsequent motion, unless the court finds a ground for relief asserted which that, for sufficient reason, was not asserted or was inadequately raised in the original, supplemental, or amended motion.

SB82-SSA1,896 Section 896. 974.06 (5), (6), (7) and (8) of the statutes are amended to read:

SB82-SSA1,270,7 974.06 (5) A Subject to s. 974.08, a court may entertain and determine such a motion under sub. (1) without requiring the production of the prisoner at the hearing. The court may hear the motion may be heard by telephone or live audiovisual means under s. 807.13.

SB82-SSA1,270,9 (6) Proceedings under this section shall be considered civil in nature, and the burden of proof shall be upon the person prisoner.

SB82-SSA1,270,11 (7) An A prisoner may appeal may be taken from the an order entered on the motion under sub. (1) as from if the order were a final judgment.

SB82-SSA1,270,18 (8) A court may not entertain a petition for a writ of habeas corpus or an action seeking that remedy in on behalf of a person prisoner who is authorized to apply for relief by motion under this section shall not be entertained sub. (1) if it appears that the applicant prisoner has failed to apply for relief, by file a motion, to under sub. (1) with the court which sentenced the person prisoner, or that the court has denied the person relief motion, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his or her the prisoner's detention.

SB82-SSA1,897 Section 897. 974.07 (4) (b) of the statutes is amended to read:

SB82-SSA1,271,2 974.07 (4) (b) Notwithstanding the limitation on the disclosure of mailing addresses from completed information cards submitted by victims under ss. 51.37 (10) (dx), 301.046 (4) (d), 301.048 (4m) (d), 301.38 (4), 302.105 (4), 304.06 (1) (f), 304.063 (4), 938.51 (2), 971.17 971.85 (6m) (d), and 980.11 (4), the department of corrections, the parole commission, and the department of health services shall, upon request, assist clerks of court in obtaining information regarding the mailing address of victims for the purpose of sending copies of motions and notices of hearings under par. (a).

SB82-SSA1,898 Section 898. 974.07 (7) (b) 1. of the statutes is amended to read:

SB82-SSA1,271,11 974.07 (7) (b) 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. 971.17 971.85, 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.

SB82-SSA1,899 Section 899. 974.07 (9) (a) of the statutes is amended to read:

SB82-SSA1,271,20 974.07 (9) (a) If a person other than the movant is in custody, as defined in s. 968.205 968.645 (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), 968.205 968.645, 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.

SB82-SSA1,900 Section 900. 974.07 (10) (a) 4. of the statutes is amended to read:

SB82-SSA1,271,23 974.07 (10) (a) 4. An order discharging the movant from custody, as defined in s. 968.205 968.645 (1) (a), if the movant is in custody.

SB82-SSA1,901 Section 901. 974.08 (title) of the statutes is created to read:

SB82-SSA1,271,25 974.08 (title) Defendant's presence at postconviction proceedings.

SB82-SSA1,902 Section 902. 974.08 (1) of the statutes is created to read:

SB82-SSA1,272,5 974.08 (1) A defendant has the right to be present at a postconviction proceeding when the hearing will address substantial issues of fact as to events in which the defendant participated and those issues are supported by more than mere allegations.

SB82-SSA1,903 Section 903. 974.08 (2) and (3) of the statutes are created to read:

SB82-SSA1,272,12 974.08 (2) A defendant need not be present at the pronouncement or entry of an order granting or denying relief under s. 974.02, 974.03, 974.06, or 974.07. If the defendant is not present, the time for appealing the order shall commence after a copy has been served upon the defendant's counsel or, if he or she appeared without counsel, upon the defendant, except as provided in sub. (3). Service of such an order shall be complete upon mailing.

SB82-SSA1,272,17 (3) A defendant appearing without counsel shall supply the court with his or her current mailing address. If the defendant fails to supply the court with a current and accurate mailing address, the defendant's failure to receive a copy of the order granting or denying relief shall not be a ground for tolling the time in which an appeal must be taken.

SB82-SSA1,904 Section 904. 974.09 (title) of the statutes is created to read:

SB82-SSA1,272,19 974.09 (title) Release pending appeal.

SB82-SSA1,905 Section 905. 977.02 (2m) of the statutes is amended to read:

SB82-SSA1,272,25 977.02 (2m) Promulgate rules regarding eligibility for legal services under this chapter, including legal services for persons who are entitled to be represented by counsel without a determination of indigency, as provided in s. 48.23 (4), 51.60, or 55.105, or and for children who are entitled to be represented by counsel without a determination of indigency, as provided in s. 48.23 (4) or 938.23 (4).

SB82-SSA1,906 Section 906. 977.02 (3) (intro.) of the statutes is amended to read:

SB82-SSA1,273,9 977.02 (3) (intro.) Promulgate rules regarding the determination of indigency of persons entitled to be represented by counsel, other than persons who are entitled to be represented by counsel under s. 48.23, 51.60 , or 55.105, or children who are entitled to be represented by counsel without a determination of indigency under s. 48.23 or 938.23, including the time period in which the determination must be made and the criteria to be used to determine indigency and partial indigency. The rules shall specify that, in determining indigency, the representative of the state public defender shall do all of the following:

SB82-SSA1,907 Section 907. 977.02 (4r) of the statutes is amended to read:

SB82-SSA1,273,14 977.02 (4r) Promulgate rules that establish procedures to provide the department of administration with any information concerning the collection of payment ordered under s. 48.275 (2), 757.66, 938.275 (2), 973.06 (1) (e), or 977.076 (1).

SB82-SSA1,908 Section 908. 977.03 (2m) of the statutes is amended to read:

SB82-SSA1,273,18 977.03 (2m) The board may promulgate rules that establish procedures to collect payment ordered under s. 48.275 (2), 757.66, 938.275 (2), 973.06 (1) (e), or 977.076 (1) from a prisoner's prison financial account.

SB82-SSA1,909 Section 909. 977.05 (4) (gm) of the statutes is amended to read:

SB82-SSA1,274,2 977.05 (4) (gm) In accordance with the standards under pars. (h) and (i), accept referrals from judges and courts for the provision of legal services without a determination of indigency of persons who are entitled to be represented by counsel under s. 48.23, 51.60, or 55.105, or children who are entitled to be represented by counsel under s. 48.23 or 938.23, appoint counsel in accordance with contracts and policies of the board, and inform the referring judge or court of the name and address of the specific attorney who has been assigned to the case.

SB82-SSA1,910 Section 910. 977.05 (4) (h) of the statutes is amended to read:

SB82-SSA1,274,10 977.05 (4) (h) Accept requests for legal services from children who are entitled to be represented by counsel under s. 48.23 or 938.23, from persons who are entitled to be represented by counsel under s. 48.23, 51.60 , or 55.105, or 938.23 and from indigent persons who are entitled to be represented by counsel under s. 967.06 971.013 or who are otherwise so entitled under the constitution or laws of the United States or this state and provide such persons with legal services when, in the discretion of the state public defender, such provision of legal services is appropriate.

SB82-SSA1,911 Section 911. 977.05 (4) (j) of the statutes is amended to read:

SB82-SSA1,274,18 977.05 (4) (j) Subject to sub. (6) (e) and (f), at the request of any person determined by the state public defender to be indigent or upon referral of any court, prosecute a writ of error, appeal, action or proceeding for habeas corpus or other postconviction or post-commitment remedy on behalf of the person before any court, if the state public defender determines the case should be pursued. The state public defender must pursue the case of any indigent person entitled to counsel under s. 971.17 971.85 (7) (b) 1. or 980.03 (2) (a).

SB82-SSA1,912 Section 912. 977.05 (6) (b) 2. of the statutes is amended to read:

SB82-SSA1,274,22 977.05 (6) (b) 2. The judge or circuit court commissioner before whom the proceedings shall be held certifies to the state public defender that the person will not be incarcerated if he or she is found in contempt of court.

SB82-SSA1,913 Section 913. 977.05 (6) (e) (intro.) and 2. of the statutes are amended to read:

SB82-SSA1,275,3 977.05 (6) (e) (intro.) The state public defender may not provide legal services or assign counsel for a person who files a motion to modify sentence under s. 973.19 974.03 (1) (a), or for a person who appeals, under s. 973.19 (4) 974.03 (1) (d), the denial of a motion to modify sentence filed under s. 973.19 974.03 (1) (a), unless the person does one of the following:

SB82-SSA1,275,5 2. Files the motion to modify sentence under s. 973.19 974.03 (1) (a) within 20 days after the sentence or order is entered.

SB82-SSA1,914 Section 914. 977.06 (2) (a) of the statutes is amended to read:

SB82-SSA1,275,16 977.06 (2) (a) A person seeking to have counsel assigned for him or her under s. 977.08, other than a person who is entitled to be represented by counsel under s. 48.23, 51.60, or 55.105, or a child who is entitled to be represented by counsel under s. 48.23 or 938.23, shall sign a statement declaring that he or she has not disposed of any assets for the purpose of qualifying for that assignment of counsel. If the representative or authority making the indigency determination finds that any asset was disposed of for less than its fair market value for the purpose of obtaining that assignment of counsel, the asset shall be counted under rules promulgated under s. 977.02 (3) at its fair market value at the time it was disposed of, minus the amount of compensation received for the asset.

SB82-SSA1,915 Section 915. 977.06 (2) (am) of the statutes is amended to read:

SB82-SSA1,275,24 977.06 (2) (am) A person seeking to have counsel assigned for him or her under s. 977.08, other than a person who is entitled to be represented by counsel under s. 48.23, 51.60, or 55.105, or a child who is entitled to be represented by counsel under s. 48.23 or 938.23, shall sign a statement declaring that the information that he or she has given to determine eligibility for assignment of counsel he or she believes to be true and that he or she is informed that he or she is subject to the penalty under par. (b).

SB82-SSA1,916 Section 916. 977.06 (3) (b) of the statutes is amended to read:

SB82-SSA1,276,3 977.06 (3) (b) The state public defender may petition a court that ordered payment under s. 757.66, 973.06 (1) (e), or 977.076 (1) to modify an order or judgment to adjust the amount of payment or the scheduled amounts at any time.

SB82-SSA1,917 Section 917. 977.07 (1) (a) of the statutes is amended to read:

SB82-SSA1,276,13 977.07 (1) (a) Determination of indigency for persons entitled to counsel shall be made as soon as possible and shall be in accordance with the rules promulgated by the board under s. 977.02 (3) and the system established under s. 977.06. No determination of indigency is required for a person who is entitled to be represented by counsel under s. 48.23, 51.60, or 55.105, or for a child who is entitled to be represented by counsel under s. 48.23 or 938.23. The state public defender may also appoint counsel without a determination of indigency if the state public defender has reason to doubt the competency of a person who has been charged with a crime or who is pursuing postconviction relief in a criminal case.

SB82-SSA1,918 Section 918. 977.07 (1) (c) of the statutes is amended to read:

SB82-SSA1,277,2 977.07 (1) (c) For all referrals made under ss. 809.107, 809.30, 974.06 (3) (b) and 974.07 (11), except a referral of a person who is entitled to be represented by counsel under s. 48.23, 51.60, or 55.105, or 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. For referrals made under ss. 809.107, 809.30 and 974.06 (3) (b), except a referral of a person who is entitled to be represented by counsel under s. 48.23, 51.60, or 55.105, or 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 person'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.

SB82-SSA1,919 Section 919. 977.07 (2m) of the statutes is amended to read:

SB82-SSA1,277,14 977.07 (2m) If the person is found to be indigent in full or in part, the person shall be promptly informed of the state's right to payment or recoupment under s. 48.275 (2), 757.66, 938.275 (2), 973.06 (1) (e), or 977.076 (1), and the possibility that the payment of attorney fees may be made a condition of probation, should the person be placed on probation. Furthermore, if found to be indigent in part, the person shall be promptly informed of the extent to which he or she will be expected to pay for counsel, and whether the payment shall be in the form of a lump sum payment or periodic payments. The person shall be informed that the payment amount may be adjusted if his or her financial circumstances change by the time of sentencing. The payment and payment schedule shall be set forth in writing. This subsection does not apply to persons who have paid under s. 977.075 (3m).

SB82-SSA1,920 Section 920 . 977.076 (1) of the statutes is repealed.

SB82-SSA1,921 Section 921. 977.076 (2) of the statutes is renumbered 977.076 and amended to read:

SB82-SSA1,277,22 977.076 Collections. The department of administration may collect unpaid reimbursement payments to the state public defender ordered by a court under sub. (1) or s. 48.275 (2), 757.66, 938.275 (2) (a), or 973.06 (1) (e). The department may contract with a private collection agency to collect these payments. Section 16.705 does not apply to a contract under this subsection section.

SB82-SSA1,922 Section 922. 977.08 (2) (intro.) of the statutes is amended to read:

SB82-SSA1,278,2 977.08 (2) (intro.) All attorneys in a county shall be notified in writing by the state public defender that a set of lists is being prepared of attorneys willing to represent persons referred under s. 48.23 (4), 51.60, or 55.105, or children referred under s. 48.23 (4) or 938.23 (4) and indigent clients in the following:

SB82-SSA1,923 Section 923. 978.045 (1r) (cm) of the statutes, as affected by 2015 Wisconsin Act 64, is amended to read:

SB82-SSA1,278,10 978.045 (1r) (cm) The judge may not appoint an attorney as a special prosecutor to assist the district attorney in John Doe proceedings under s. 968.26 968.105 unless a condition under par. (bm) 1. to 8. exists or unless the judge determines that a complaint received under s. 968.26 968.105 (2) (am) relates to the conduct of the district attorney to whom the judge otherwise would refer the complaint. This paragraph does not prohibit assistance authorized by s. 978.05 (8).

SB82-SSA1,924 Section 924. 978.05 (3) of the statutes is amended to read:

SB82-SSA1,278,13 978.05 (3) John Doe proceedings. Participate in investigatory proceedings under s. 968.26 968.105.

SB82-SSA1,925 Section 925. 978.05 (4) of the statutes is amended to read:

SB82-SSA1,278,18 978.05 (4) Grand jury. When requested by a grand jury under s. 968.47 968.225, attend the grand jury for the purpose of examining witnesses in their presence; give the grand jury advice in any legal matter; draw bills of indictment; and issue subpoenas and other processes to compel the attendance of witnesses.

SB82-SSA1,926 Section 926. 978.05 (6) (a) of the statutes, as affected by 2015 Wisconsin Act 55, is amended to read:

SB82-SSA1,279,9 978.05 (6) (a) Institute, commence, or appear in all civil actions or special proceedings under and perform the duties set forth for the district attorney under ch. 980 and ss. 17.14, 30.03 (2), 48.09 (5), 59.55 (1), 59.64 (1), 70.36, 89.08, 103.50 (8), 103.92 (4), 109.09, 343.305 (9) (a), 806.05, 938.09, 938.18, 938.355 (6) (b) and (6g) (a), 946.86, 946.87, 961.55 (5), 971.14 971.81, and 973.075 to 973.077, perform any duties in connection with court proceedings in a court assigned to exercise jurisdiction under chs. 48 and 938 as the judge may request and perform all appropriate duties and appear if the district attorney is designated in specific statutes, including matters within chs. 782, 976 and 979 and subch. I of ch. 968 and ss. 51.81 to 51.85. Nothing in this paragraph limits the authority of the county board to designate, under s. 48.09 (5), that the corporation counsel provide representation as specified in s. 48.09 (5) or to designate, under s. 48.09 (6) or 938.09 (6), the district attorney as an appropriate person to represent the interests of the public under s. 48.14 or 938.14.

SB82-SSA1,927 Section 927. 978.08 (1) (a) and (b) and (2) of the statutes are amended to read:

SB82-SSA1,279,11 978.08 (1) (a) "Custody" has the meaning given in s. 968.205 968.645 (1) (a).

SB82-SSA1,279,12 (b) "Discharge date" has the meaning given in s. 968.205 968.645 (1) (b).

SB82-SSA1,279,21 (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. 971.17 971.85 or 980.06 and the biological material is from a victim of the offense that was the subject of the criminal investigation or may reasonably be used to incriminate or exculpate any person for the offense, 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.

SB82-SSA1,928 Section 928. 979.02 of the statutes is amended to read: