AB291: Bill Text

AB291,25,2 (b) If the conditions in par. (a) are not present, the court shall determine the disposition of the evidence, and, if the evidence is to be preserved, by whom and for how long. The court shall issue appropriate orders concerning the disposition of the evidence based on its determinations.

AB291,25,8 (10) (a) If the results of forensic deoxyribonucleic acid testing ordered under this section support the movant's claim of innocence, the court shall schedule a hearing to determine the appropriate relief to be granted to the movant. After the hearing, and based on the results of the testing and any evidence or other matter presented at the hearing, the court shall enter any order that serves the interests of justice, including any of the following:

AB291,25,11 1. An order setting aside or vacating the movant's judgment of conviction, judgment of not guilty by reason of mental disease or defect, or adjudication of delinquency.

AB291,25,12 2. An order granting the movant a new trial or fact-finding hearing.

AB291,25,14 3. An order granting the movant a new sentencing hearing, commitment hearing, or dispositional hearing.

AB291,25,16 4. An order discharging the movant from custody, as defined in s. 968.205 (1) (a), if the movant is in custody.

AB291,25,18 5. An order specifying the disposition of any evidence that remains after the completion of the testing, subject to sub. (9) (a) and (b).

AB291,25,20 (b) A court may order a new trial under par. (a) without making the findings specified in s. 805.15 (3) (a) and (b).

AB291,25,24 (11) A court considering a motion made under sub. (2) by a movant who is not represented by counsel shall, if the movant claims or appears to be indigent, refer the movant to the state public defender for determination of indigency and appointment of counsel under s. 977.05 (4) (j).

AB291,26,5 (12) (a) The court may order a movant to pay the costs of any testing ordered by the court under this section if the court determines that the movant is not indigent. If the court determines that the movant is indigent, the court shall order the costs of the testing to be paid for from the appropriation account under s. 20.410 (1) (be).

AB291,26,6 (b) A movant is indigent for purposes of par. (a) if any of the following apply:

AB291,26,8 1. The movant was referred to the state public defender under sub. (11) for a determination of indigency and was found to be indigent.

AB291,26,12 2. The movant was referred to the state public defender under sub. (11) for a determination of indigency but was found not to be indigent, and the court determines that the movant does not possess the financial resources to pay the costs of testing.

AB291,26,15 3. The movant was not referred to the state public defender under sub. (11) for a determination of indigency and the court determines that the movant does not possess the financial resources to pay the costs of testing.

AB291,26,17 (13) An appeal may be taken from an order entered under this section as from a final judgment.

AB291, s. 37 Section 37. 977.07 (1) (b) of the statutes is amended to read:

AB291,26,25 977.07 (1) (b) For referrals not made under ss. 809.30 and, 974.06 and 974.07, a representative of the state public defender is responsible for making indigency determinations unless the county became responsible under s. 977.07 (1) (b) 2. or 3., 1983 stats., for these determinations. Subject to the provisions of par. (bn), those counties may continue to be responsible for making indigency determinations. Any such county may change the agencies or persons who are designated to make indigency determinations only upon the approval of the state public defender.

AB291, s. 38 Section 38. 977.07 (1) (c) of the statutes is amended to read:

AB291,27,11 977.07 (1) (c) For all referrals made under ss. 809.30 and, 974.06 (3) (b) and 974.07 (11), except a referral of a child who is entitled to be represented by counsel under s. 48.23 or 938.23, a representative of the state public defender shall determine indigency, and. For referrals made under ss. 809.30 and 974.06 (3) (b), except a referral of a child who is entitled to be represented by counsel under s. 48.23 or 938.23, the representative of the state public defender may, unless a request for redetermination has been filed under s. 809.30 (2) (d) or the defendant's request for representation states that his or her financial circumstances have materially improved, rely upon a determination of indigency made for purposes of trial representation under this section.

AB291, s. 39 Section 39. 978.08 of the statutes is created to read:

AB291,27,13 978.08 Preservation of certain evidence. (1) In this section:

AB291,27,14 (a) "Custody" has the meaning given in s. 968.205 (1) (a).

AB291,27,15 (b) "Discharge date" has the meaning given in s. 968.205 (1) (b).

AB291,27,21 (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 or 980.06, the district attorney shall preserve the physical evidence until every person in custody as a result of the conviction, adjudication, or commitment has reached his or her discharge date.

AB291,27,23 (3) Subject to sub. (5), a district attorney may destroy biological material before the expiration of the time period specified in sub. (2) if all of the following apply:

AB291,28,2 (a) The district attorney sends a notice of its intent to destroy the biological material to all persons who remain in custody as a result of the criminal conviction, delinquency adjudication, or commitment and to either the attorney of record for each person in custody or the state public defender.

AB291,28,4 (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:

AB291,28,5 1. Files a motion for testing of the biological material under s. 974.07 (2).

AB291,28,7 2. Submits a written request to preserve the biological material to the district attorney.

AB291,28,9 (c) No other provision of federal or state law requires the district attorney to preserve the biological material.

AB291,28,14 (4) A notice provided under sub. (3) (a) shall clearly inform the recipient that the biological material will be destroyed unless, within 90 days after the date on which the person receives the notice, either a motion for testing of the material is filed under s. 974.07 (2) or a written request to preserve the material is submitted to the district attorney.

AB291,28,20 (5) If, after providing notice under sub. (3) (a) of its intent to destroy biological material, a district attorney receives a written request to preserve the material, the district attorney shall preserve the material until the discharge date of the person who made the request or on whose behalf the request was made, subject to a court order issued under s. 974.07 (7), (9) (a), or (10) (a) 5., unless the court authorizes destruction of the biological material under s. 974.07 (9) (b) or (10) (a) 5.

AB291, s. 40 Section 40. 980.101 of the statutes is created to read:

AB291,29,2 980.101 Reversal, vacation or setting aside of judgment relating to a sexually violent offense; effect. (1) In this section, "judgment relating to a sexually violent offense" means a judgment of conviction for a sexually violent offense, an adjudication of delinquency on the basis of a sexually violent offense, or a judgment of not guilty of a sexually violent offense by reason of mental disease or defect.

AB291,29,8 (2) If, at any time after a person is committed under s. 980.06, a judgment relating to a sexually violent offense committed by the person is reversed, set aside, or vacated and that sexually violent offense was a basis for the allegation made in the petition under s. 980.02 (2) (a), the person may bring a motion for postcommitment relief in the court that committed the person. The court shall proceed as follows on the motion for postcommitment relief:

AB291,29,14 (a) If the sexually violent offense was the sole basis for the allegation under s. 980.02 (2) (a) and there are no other judgments relating to a sexually violent offense committed by the person, the court shall reverse, set aside, or vacate the judgment under s. 980.05 (5) that the person is a sexually violent person, vacate the commitment order, and discharge the person from the custody or supervision of the department.

AB291,29,21 (b) If the sexually violent offense was the sole basis for the allegation under s. 980.02 (2) (a) but there are other judgments relating to a sexually violent offense committed by the person that have not been reversed, set aside, or vacated, or if the sexually violent offense was not the sole basis for the allegation under s. 980.02 (2) (a), the court shall determine whether to grant the person a new trial under s. 980.05 because the reversal, setting aside, or vacating of the judgement for the sexually violent offense would probably change the result of the trial.

AB291,29,23 (3) An appeal may be taken from an an order entered under sub. (2) as from a final judgment.

AB291, s. 41 Section 41. Initial applicability.

AB291,30,3 (1) The treatment of section 939.74 (1), (2) (c), and (2d) of the statutes first applies to offenses not barred from prosecution on the effective date of this subsection.

AB291, s. 42 Section 42. Effective dates. This act takes effect on the day after publication, except as follows:

AB291,30,8 (1) The treatment of sections 20.005 (3) (schedule), 20.410 (1) (be), and 974.07 (12) of the statutes takes effect on the day after publication, or on the 2nd day after the publication of the 2001-2003 biennial budget act, whichever is later.

AB291,30,9 (End)