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893. 974.05 (3) of the statutes is repealed.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:
SB82-SSA1,276,3
1977.06
(3) (b) The state public defender may petition a court that ordered
2payment under s. 757.66, 973.06 (1) (e)
, or 977.076
(1) to modify an order or judgment
3to adjust the amount of payment or the scheduled amounts at any time.
SB82-SSA1,917
4Section
917. 977.07 (1) (a) of the statutes is amended to read:
SB82-SSA1,276,135
977.07
(1) (a) Determination of indigency for persons entitled to counsel shall
6be made as soon as possible and shall be in accordance with the rules promulgated
7by the board under s. 977.02 (3) and the system established under s. 977.06. No
8determination of indigency is required for a person who is entitled to be represented
9by counsel under s.
48.23, 51.60
,
or 55.105
, or for a child who is entitled to be
10represented by counsel under s. 48.23 or 938.23.
The state public defender may also
11appoint counsel without a determination of indigency if the state public defender has
12reason to doubt the competency of a person who has been charged with a crime or who
13is pursuing postconviction relief in a criminal case.
SB82-SSA1,918
14Section
918. 977.07 (1) (c) of the statutes is amended to read:
SB82-SSA1,277,215
977.07
(1) (c) For all referrals made under ss. 809.107, 809.30, 974.06 (3) (b)
16and 974.07 (11), except a referral of a person who is entitled to be represented by
17counsel under s.
48.23, 51.60
,
or 55.105
, or of a child who is entitled to be represented
18by counsel under s. 48.23 or 938.23, a representative of the state public defender
19shall determine indigency. For referrals made under ss. 809.107, 809.30 and 974.06
20(3) (b), except a referral of a person who is entitled to be represented by counsel under
21s.
48.23, 51.60
, or 55.105
, or of a child who is entitled to be represented by counsel
22under s. 48.23 or 938.23, the representative of the state public defender may, unless
23a request for redetermination has been filed under s. 809.30 (2) (d) or the person's
24request for representation states that his or her financial circumstances have
1materially improved, rely upon a determination of indigency made for purposes of
2trial representation under this section.
SB82-SSA1,919
3Section
919. 977.07 (2m) of the statutes is amended to read:
SB82-SSA1,277,144
977.07
(2m) If the person is found to be indigent in full or in part, the person
5shall be promptly informed of the state's right to payment or recoupment under s.
648.275 (2), 757.66, 938.275 (2), 973.06 (1) (e), or 977.076
(1), and the possibility that
7the payment of attorney fees may be made a condition of probation, should the person
8be placed on probation. Furthermore, if found to be indigent in part, the person shall
9be promptly informed of the extent to which he or she will be expected to pay for
10counsel, and whether the payment shall be in the form of a lump sum payment or
11periodic payments. The person shall be informed that the payment amount may be
12adjusted if his or her financial circumstances change by the time of sentencing. The
13payment and payment schedule shall be set forth in writing. This subsection does
14not apply to persons who have paid under s. 977.075 (3m).
SB82-SSA1,920
15Section
920
. 977.076 (1) of the statutes is repealed.
SB82-SSA1,921
16Section
921. 977.076 (2) of the statutes is renumbered 977.076 and amended
17to read:
SB82-SSA1,277,22
18977.076 Collections. The department of administration may collect unpaid
19reimbursement payments to the state public defender ordered by a court under
sub.
20(1) or s. 48.275 (2), 757.66, 938.275 (2) (a)
, or 973.06 (1) (e). The department may
21contract with a private collection agency to collect these payments. Section 16.705
22does not apply to a contract under this
subsection
section.
SB82-SSA1,922
23Section
922. 977.08 (2) (intro.) of the statutes is amended to read:
SB82-SSA1,278,224
977.08
(2) (intro.) All attorneys in a county shall be notified in writing by the
25state public defender that a set of lists is being prepared of attorneys willing to
1represent persons referred under s.
48.23 (4), 51.60
, or 55.105
, or children referred
2under s. 48.23 (4) or 938.23 (4) and indigent clients in the following:
SB82-SSA1,278,105
978.045
(1r) (cm) The judge may not appoint an attorney as a special
6prosecutor to assist the district attorney in John Doe proceedings under s.
968.26 7968.105 unless a condition under par. (bm) 1. to 8. exists or unless the judge
8determines that a complaint received under s.
968.26
968.105 (2) (am) relates to the
9conduct of the district attorney to whom the judge otherwise would refer the
10complaint. This paragraph does not prohibit assistance authorized by s. 978.05 (8).
SB82-SSA1,924
11Section
924. 978.05 (3) of the statutes is amended to read:
SB82-SSA1,278,1312
978.05
(3) John Doe proceedings. Participate in investigatory proceedings
13under s.
968.26 968.105.
SB82-SSA1,925
14Section
925. 978.05 (4) of the statutes is amended to read:
SB82-SSA1,278,1815
978.05
(4) Grand jury. When requested by a grand jury under s.
968.47 16968.225, attend the grand jury for the purpose of examining witnesses in their
17presence; give the grand jury advice in any legal matter; draw bills of indictment; and
18issue subpoenas and other processes to compel the attendance of witnesses.
SB82-SSA1,279,921
978.05
(6) (a) Institute, commence
, or appear in all civil actions or special
22proceedings under and perform the duties set forth for the district attorney under ch.
23980 and ss. 17.14, 30.03 (2), 48.09 (5), 59.55 (1), 59.64 (1), 70.36, 89.08, 103.50 (8),
24103.92 (4), 109.09, 343.305 (9) (a), 806.05, 938.09, 938.18, 938.355 (6) (b) and (6g) (a),
25946.86, 946.87, 961.55 (5),
971.14 971.81, and 973.075 to 973.077, perform any duties
1in connection with court proceedings in a court assigned to exercise jurisdiction
2under chs. 48 and 938 as the judge may request and perform all appropriate duties
3and appear if the district attorney is designated in specific statutes, including
4matters within chs. 782, 976 and 979
and subch. I of ch. 968 and ss. 51.81 to 51.85.
5Nothing in this paragraph limits the authority of the county board to designate,
6under s. 48.09 (5), that the corporation counsel provide representation as specified
7in s. 48.09 (5) or to designate, under s. 48.09 (6) or 938.09 (6), the district attorney
8as an appropriate person to represent the interests of the public under s. 48.14 or
9938.14.
SB82-SSA1,927
10Section
927. 978.08 (1) (a) and (b) and (2) of the statutes are amended to read:
SB82-SSA1,279,1111
978.08
(1) (a) "Custody" has the meaning given in s.
968.205 968.645 (1) (a).
SB82-SSA1,279,1212
(b) "Discharge date" has the meaning given in s.
968.205 968.645 (1) (b).
SB82-SSA1,279,21
13(2) Except as provided in sub. (3), if physical evidence that is in the possession
14of a district attorney includes any biological material that was collected in connection
15with a criminal investigation that resulted in a criminal conviction, delinquency
16adjudication, or commitment under s.
971.17 971.85 or 980.06
and the biological
17material is from a victim of the offense that was the subject of the criminal
18investigation or may reasonably be used to incriminate or exculpate any person for
19the offense, the district attorney shall preserve the physical evidence until every
20person in custody as a result of the conviction, adjudication, or commitment has
21reached his or her discharge date.
SB82-SSA1,928
22Section
928. 979.02 of the statutes is amended to read:
SB82-SSA1,280,8
23979.02 Autopsies. The coroner, medical examiner or district attorney may
24order the conducting of an autopsy upon the body of a dead person any place within
25the state in cases where an inquest might be had as provided in s.
979.04 968.015
1notwithstanding the fact that no such inquest is ordered or conducted. The autopsy
2shall be conducted by a licensed physician who has specialized training in pathology.
3The district attorney may move the
circuit court for the county in which the body is
4buried for an order disinterring the body for purposes of autopsy. The order shall be
5granted by the
circuit court upon a reasonable showing that any of the criteria
6specified in s.
979.04 968.015 exists. This section does not prevent additional
7autopsies or examinations of the body if there are unanswered pathological
8questions concerning the death and the causes of death.
SB82-SSA1,929
9Section
929. 979.025 (1) of the statutes is amended to read: