AB291: Bill Text

AB291,7,7 2. "Discharge date" has the meaning given in s. 968.205 (1) (b).

AB291,7,13 (b) Except as provided in par. (c), if physical evidence that is in the possession of the laboratories includes any biological material that was collected in connection with a criminal investigation that resulted in a criminal conviction, a delinquency adjudication, or commitment under s. 971.17 or s. 980.06, the laboratories 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.

AB291,7,15 (c) Subject to par. (e), the department may destroy biological material before the expiration of the time period specified in par. (b) if all of the following apply:

AB291,7,19 1. The department 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.

AB291,7,21 2. No person who is notified under subd. 1. does either of the following within 90 days after the date on which the person received the notice:

AB291,7,22 a. Files a motion for testing of the biological material under s. 974.07 (2).

AB291,7,24 b. Submits a written request to preserve the biological material to the department.

AB291,8,2 3. No other provision of federal or state law requires the department to preserve the biological material.

AB291,8,7 (d) A notice provided under par. (c) 1. 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 department.

AB291,8,13 (e) If, after providing notice under par. (c) 1. of its intent to destroy biological material, the department receives a written request to preserve the material, the department 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.

AB291, s. 8 Section 8. 757.54 of the statutes is renumbered 757.54 (1) and amended to read:

AB291,8,19 757.54 (1) The Except as provided in sub. (2), the retention and disposal of all court records and exhibits in any civil or criminal action or proceeding or probate proceeding of any nature in a court of record shall be determined by the supreme court by rule.

AB291, s. 9 Section 9. 757.54 (2) of the statutes is created to read:

AB291,8,21 757.54 (2) (a) In this subsection:

AB291,8,22 1. "Custody" has the meaning given in s. 968.205 (1) (a).

AB291,8,23 2. "Discharge date" has the meaning given in s. 968.205 (1) (b).

AB291,9,5 (b) Except as provided in par. (c), if an exhibit in a criminal action or a delinquency proceeding under ch. 938 includes any biological material that was collected in connection with the action or proceeding, the court presiding over the action or proceeding shall ensure that the exhibit is preserved until every person in custody as a result of the action or proceeding, or as a result of commitment under s. 980.06 that is based on a judgment of guilty or not guilty by reason of mental disease or defect in the action or proceeding, has reached his or her discharge date.

AB291,9,7 (c) Subject to par. (e), the court may destroy biological material before the expiration of the time period specified in par. (b) if all of the following apply:

AB291,9,11 1. The court sends a notice of its intent to destroy the biological material to all persons who remain in custody as a result of the criminal action, delinquency proceeding, or commitment under s. 980.06 and to either the attorney of record for each person in custody or the state public defender.

AB291,9,13 2. No person who is notified under subd. 1. does either of the following within 90 days after the date on which the person received the notice:

AB291,9,14 a. Files a motion for testing of the biological material under s. 974.07 (2).

AB291,9,15 b. Submits a written request to preserve the biological material to the court.

AB291,9,17 3. No other provision of federal or state law requires the court to preserve the biological material.

AB291,9,22 (d) A notice provided under par. (c) 1. 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 court.

AB291,9,25 (e) If, after providing notice under par. (c) 1. of its intent to destroy biological material, a court receives a written request to preserve the material, the court 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.

AB291, s. 10 Section 10. 801.02 (7) (a) 2. c. of the statutes is amended to read:

AB291,10,8 801.02 (7) (a) 2. c. A person bringing an action seeking relief from a judgment of conviction or a sentence of a court, including an action for an extraordinary writ or a supervisory writ seeking relief from a judgment of conviction or a sentence of a court or an action under s. 809.30, 809.40, 973.19 or , 974.06 or 974.07.

AB291, s. 11 Section 11. 805.15 (3) (intro.) of the statutes is amended to read:

AB291,10,12 805.15 (3) (intro.) A Except as provided in ss. 974.07 (10) (b) and 980.101 (2) (b), a new trial shall be ordered on the grounds of newly-discovered evidence if the court finds that:

AB291, s. 12 Section 12. 805.16 (5) of the statutes is created to read:

AB291,10,15 805.16 (5) The time limits in this section for filing motions do not apply to motions made under s. 974.07 (2) or 980.101.

AB291, s. 13 Section 13. 808.075 (4) (h) of the statutes is amended to read:

AB291,10,19 808.075 (4) (h) Commitment, supervised release, recommitment and, discharge, and postcommitment relief under ss. 980.06, 980.08, 980.09 and, 980.10, and 980.101 of a person found to be a sexually violent person under ch. 980.

AB291, s. 14 Section 14. 809.30 (1) (a) of the statutes is amended to read:

AB291,11,2 809.30 (1) (a) "Postconviction relief" means, in a felony or misdemeanor case, an appeal or a motion for postconviction relief other than a motion under s. 973.19 or, 974.06 or 974.07 (2). In a ch. 48, 51, 55 or 938 case, other than a termination of parental rights case under s. 48.43, it means an appeal or a motion for reconsideration by the trial court of its final judgment or order; in such cases a notice of intent to pursue such relief or a motion for such relief need not be styled as seeking "postconviction" relief.

AB291, s. 15 Section 15. 809.30 (2) (L) of the statutes is amended to read:

AB291,11,5 809.30 (2) (L) An appeal under s. 974.06 or 974.07 is governed by the procedures for civil appeals.

AB291, s. 16 Section 16. 938.293 (2) of the statutes is amended to read:

AB291,11,17 938.293 (2) All records relating to a juvenile which are relevant to the subject matter of a proceeding under this chapter shall be open to inspection by a guardian ad litem or counsel for any party, upon demand and upon presentation of releases where necessary, at least 48 hours before the proceeding. Persons entitled to inspect the records may obtain copies of the records with the permission of the custodian of the records or with the permission of the court. The court may instruct counsel not to disclose specified items in the materials to the juvenile or the parent if the court reasonably believes that the disclosure would be harmful to the interests of the juvenile. Sections Section 971.23 and 972.11 (5) shall be applicable in all delinquency proceedings under this chapter, except that the court shall establish the timetable for the disclosures required under ss. s. 971.23 (1), (2m) and, (8), and 972.11 (5) (9).

AB291, s. 17 Section 17. 938.299 (4) (a) of the statutes is amended to read:

AB291,11,21 938.299 (4) (a) Chapters 901 to 911 govern the presentation of evidence at the fact-finding hearing under s. 938.31. Section 972.11 (5) applies at fact-finding proceedings in all delinquency proceedings under this chapter.

AB291, s. 18 Section 18. 938.46 of the statutes is amended to read:

AB291,12,4 938.46 New evidence. A juvenile whose status is adjudicated by the court under this chapter, or the juvenile's parent, guardian or legal custodian, may at any time within one year after the entering of the court's order petition the court for a rehearing on the ground that new evidence has been discovered affecting the advisability of the court's original adjudication. Upon a showing that such evidence does exist, the court shall order a new hearing. This section does not apply to motions made under s. 974.07 (2).

AB291, s. 19 Section 19. 939.74 (1) of the statutes is amended to read:

AB291,12,10 939.74 (1) Except as provided in sub. subs. (2), and (2d) and s. 946.88 (1), prosecution for a felony must be commenced within 6 years and prosecution for a misdemeanor or for adultery within 3 years after the commission thereof. Within the meaning of this section, a prosecution has commenced when a warrant or summons is issued, an indictment is found, or an information is filed.

AB291, s. 20 Section 20. 939.74 (2) (c) of the statutes is amended to read:

AB291,12,15 939.74 (2) (c) A prosecution for violation of s. 948.02, 948.025, 948.03 (2) (a), 948.05, 948.06, 948.07 (1), (2), (3) or (4), 948.08 or 948.095 shall be commenced before the victim reaches the age of 31 years or be barred, except as provided in sub. (2d) (c).

AB291, s. 21 Section 21. 939.74 (2d) of the statutes is created to read:

AB291,12,19 939.74 (2d) (a) In this subsection, "deoxyribonucleic acid profile" means an individual's patterned chemical structure of genetic information identified by analyzing biological material that contains the individual's deoxyribonucleic acid.

AB291,13,4 (b) If before the time limitation under sub. (1) expired, the state collected biological material that is evidence of the identity of the person who committed a violation of s. 940.225 (1) or (2), the state identified a deoxyribonucleic acid profile from the biological material, and comparisons of that deoxyribonucleic acid profile to deoxyribonucleic acid profiles of known persons did not result in a probable identification of the person who is the source of the biological material, the state may commence prosecution of the person who is the source of the biological material for violation of s. 940.225 (1) or (2) within 12 months after comparison of the deoxyribonucleic acid profile relating to the violation results in a probable identification of the person.

AB291,13,14 (c) If before the time limitation under sub. (2) (c) expired, the state collected biological material that is evidence of the identity of the person who committed a violation of s. 948.02 (1) or (2) or 948.025, the state identified a deoxyribonucleic acid profile from the biological material, and comparisons of that deoxyribonucleic acid profile to deoxyribonucleic acid profiles of known persons did not result in a probable identification of the person who is the source of the biological material, the state may commence prosecution of the person who is the source of the biological material for violation of s. 948.02 (1) or (2) or 948.025 within 12 months after comparison of the deoxyribonucleic acid profile relating to the violation results in a probable identification of the person.

AB291, s. 22 Section 22. 950.04 (1v) (s) of the statutes is amended to read:

AB291,13,21 950.04 (1v) (s) To have any stolen or other personal property expeditiously returned by law enforcement agencies when no longer needed as evidence , subject to s. 968.205. If feasible, all such property, except weapons, currency, contraband, property subject to evidentiary analysis, property subject to preservation under s. 968.205, and property the ownership of which is disputed, shall be returned to the person within 10 days of being taken.

AB291, s. 23 Section 23. 950.04 (1v) (yd) of the statutes is created to read:

AB291,14,2 950.04 (1v) (yd) To have the appropriate clerk of court make a reasonable attempt to send the victim a copy of a motion made under s. 974.07 (2) for postconviction deoxyribonucleic acid testing of certain evidence and notification of any hearing on that motion, as provided under s. 974.07 (4).

AB291, s. 24 Section 24. 968.20 (1) (intro.) of the statutes is amended to read:

AB291,14,12 968.20 (1) (intro.) Any person claiming the right to possession of property seized pursuant to a search warrant or seized without a search warrant may apply for its return to the circuit court for the county in which the property was seized or where the search warrant was returned. The court shall order such notice as it deems adequate to be given the district attorney and all persons who have or may have an interest in the property and shall hold a hearing to hear all claims to its true ownership. If the right to possession is proved to the court's satisfaction, it shall order the property, other than contraband or property covered under sub. (1m) or (1r) or s. 173.12 or, 173.21 (4), or 968.205, returned if:

AB291, s. 25 Section 25. 968.20 (2) of the statutes is amended to read:

AB291,14,17 968.20 (2) Property not required for evidence or use in further investigation, unless contraband or property covered under sub. (1m) or (1r) or s. 173.12 or 968.205, may be returned by the officer to the person from whom it was seized without the requirement of a hearing.

AB291, s. 26 Section 26. 968.20 (4) of the statutes is amended to read:

AB291,15,3 968.20 (4) Any property seized, other than property covered under s. 968.205, which that poses a danger to life or other property in storage, transportation or use and which that is not required for evidence or further investigation shall be safely disposed of upon command of the person in whose custody they are committed. The city, village, town or county shall by ordinance or resolution establish disposal procedures. Procedures may include provisions authorizing an attempt to return to the rightful owner substances which have a commercial value in normal business usage and do not pose an immediate threat to life or property. If enacted, any such provision shall include a presumption that if the substance appears to be or is reported stolen an attempt will be made to return the substance to the rightful owner.

AB291, s. 27 Section 27. 968.205 of the statutes is created to read:

AB291,15,5 968.205 Preservation of certain evidence. (1) In this section:

AB291,15,13 (a) "Custody" means actual custody of a person under a sentence of imprisonment, custody of a probationer, parolee, or person on extended supervision by the department of corrections, actual or constructive custody of a person pursuant to a dispositional order under ch. 938, supervision of a person, whether in institutional care or on conditional release, pursuant to a commitment order under s. 971.17 and supervision of a person under ch. 980, whether in detention before trial or while in institutional care or on supervised release pursuant to a commitment order.

AB291,15,18 (b) "Discharge date" means the date on which a person is released or discharged from custody that resulted from a criminal action, a delinquency proceeding under ch. 938, or a commitment proceeding under s. 971.17 or ch. 980 or, if the person is serving consecutive sentences of imprisonment, the date on which the person is released or discharged from custody under all of the sentences.

AB291,15,25 (2) Except as provided in sub. (3), if physical evidence that is in the possession of a law enforcement agency 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 law enforcement agency 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.

AB291,16,3 (3) Subject to sub. (5), a law enforcement agency may destroy biological material before the expiration of the time period specified in sub. (2) if all of the following apply:

AB291,16,7 (a) The law enforcement agency 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.

AB291,16,9 (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:

AB291,16,10 1. Files a motion for testing of the biological material under s. 974.07 (2).

AB291,16,12 2. Submits a written request to preserve the biological material to the law enforcement agency or district attorney.

AB291,16,14 (c) No other provision of federal or state law requires the law enforcement agency to preserve the biological material.

AB291,16,19 (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 law enforcement agency.

AB291,16,25 (5) If, after providing notice under sub. (3) (a) of its intent to destroy biological material, a law enforcement agency receives a written request to preserve the material, the law enforcement agency 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.

AB291, s. 28 Section 28. 971.04 (3) of the statutes is amended to read:

AB291,17,18 971.04 (3) If the defendant is present at the beginning of the trial and thereafter, during the progress of the trial or before the verdict of the jury has been returned into court, voluntarily absents himself or herself from the presence of the court without leave of the court, the trial or return of verdict of the jury in the case shall not thereby be postponed or delayed, but the trial or submission of said case to the jury for verdict and the return of verdict thereon, if required, shall proceed in all respects as though the defendant were present in court at all times. A defendant need not be present at the pronouncement or entry of an order granting or denying relief under s. 974.02 or, 974.06, or 974.07. If the defendant is not present, the time for appeal from any order under ss. 974.02 and, 974.06, and 974.07 shall commence after a copy has been served upon the attorney representing the defendant, or upon the defendant if he or she appeared without counsel. Service of such an order shall be complete upon mailing. 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, 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.

AB291, s. 29 Section 29. 971.23 (1) (e) of the statutes is amended to read:

AB291,18,2 971.23 (1) (e) Any relevant written or recorded statements of a witness named on a list under par. (d), including any videotaped oral statement of a child under s. 908.08, any reports or statements of experts made in connection with the case or, if an expert does not prepare a report or statement, a written summary of the expert's findings or the subject matter of his or her testimony, and the results of any physical or mental examination, scientific test, experiment or comparison that the district attorney intends to offer in evidence at trial. This paragraph does not apply to reports subject to disclosure under s. 972.11 (5).

AB291, s. 30 Section 30. 971.23 (2m) (am) of the statutes is amended to read:

AB291,18,11 971.23 (2m) (am) Any relevant written or recorded statements of a witness named on a list under par. (a), including any reports or statements of experts made in connection with the case or, if an expert does not prepare a report or statement, a written summary of the expert's findings or the subject matter of his or her testimony, and including the results of any physical or mental examination, scientific test, experiment or comparison that the defendant intends to offer in evidence at trial. This paragraph does not apply to reports subject to disclosure under s. 972.11 (5).

AB291, s. 31 Section 31. 971.23 (9) of the statutes is created to read:

AB291,18,14 971.23 (9) Deoxyribonucleic acid evidence. (a) In this subsection "deoxyribonucleic acid profile" has the meaning given in s. 939.74 (2d) (a).

AB291,18,21 (b) Notwithstanding sub. (1) (e) or (2m) (am), if either party intends to submit deoxyribonucleic acid profile evidence at a trial to prove or disprove the identity of a person, the party seeking to introduce the evidence shall notify the other party of the intent to introduce the evidence in writing by mail at least 45 days before the date set for trial; and shall provide the other party, within 15 days of request, the material identified under sub. (1) (e), or par. (2m) (am), whichever is appropriate, that relates to the evidence.

AB291,19,2 (c) The court shall exclude deoxyribonucleic acid profile evidence at trial, if the notice and production deadlines under par. (b) are not met, except the court may waive the 45 day notice requirement or may extend the 15 day production requirement upon stipulation of the parties, or for good cause, if the court finds that no party will be prejudiced by the waiver or extension. The court may in appropriate cases grant the opposing party a recess or continuance.

AB291, s. 32 Section 32. 972.11 (1) of the statutes is amended to read:

AB291,19,9 972.11 (1) Except as provided in subs. (2) to (5) (4), the rules of evidence and practice in civil actions shall be applicable in all criminal proceedings unless the context of a section or rule manifestly requires a different construction. No guardian ad litem need be appointed for a defendant in a criminal action. Chapters 885 to 895, except ss. 804.02 to 804.07 and 887.23 to 887.26, shall apply in all criminal proceedings.

AB291, s. 33 Section 33. 972.11 (5) of the statutes is repealed.

AB291, s. 34 Section 34. 974.02 (1) of the statutes is amended to read:

AB291,19,20 974.02 (1) A motion for postconviction relief other than under s. 974.06 or 974.07 (2) by the defendant in a criminal case shall be made in the time and manner provided in ss. 809.30 and 809.40. An appeal by the defendant in a criminal case from a judgment of conviction or from an order denying a postconviction motion or from both shall be taken in the time and manner provided in ss. 808.04 (3), 809.30 and 809.40. An appeal of an order or judgment on habeas corpus remanding to custody a prisoner committed for trial under s. 970.03 shall be taken under ss. 808.03 (2) and 809.50, with notice to the attorney general and the district attorney and opportunity for them to be heard.