977.06(4)(c) (c) Paragraph (b) does not limit the authority of the state public defender to release a copy of the statement, affidavit or other information under other circumstances.
977.06 History History: 1995 a. 27 ss. 7269 to 7272, 7274m to 7281; 1995 a. 77, 417.
977.07 977.07 Determination of indigency.
977.07(1) (1)
977.07(1)(a)(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 child who is entitled to be represented by counsel under s. 48.23 or 938.23.
977.07(1)(b) (b) For referrals not made under ss. 809.30 and 974.06, 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.
977.07(1)(bn) (bn) Notwithstanding par. (b), if the state public defender board determines that standards under s. 977.02 (3) are not being met or that there is a pattern of improper denial of indigency findings in a county, the state public defender board shall transfer indigency determination authority in the county to the state public defender. In addition, if less than 100% of the cases at the trial level are assigned to private bar attorneys in a county, the public defender board may transfer indigency determination authority in the county to the state public defender.
977.07(1)(c) (c) For all 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, a representative of the state public defender shall determine indigency, and 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.
977.07(1)(d) (d) If the representative of the state public defender or the county designee determines that a person is indigent or if no determination of indigency is required as provided in par. (a), the case shall be referred to or within the office of the state public defender for assignment of counsel under s. 977.08.
977.07(2) (2) The representative of the state public defender or the authority for indigency determinations specified under sub. (1) making a determination of indigency shall ascertain the assets of the person which exceed the amount needed for the payment of reasonable and necessary expenses incurred, or which must be incurred to support the person and the person's immediate family. The assets shall include disposable income, cash in hand, stocks and bonds, bank accounts and other property which can be converted to cash within a reasonable period of time and is not needed to hold a job, or to shelter, clothe and care for the person and the person's immediate family. Assets which cannot be converted to cash within a reasonable period of time, such as a person's home, car, household furnishings, clothing and other property which has been declared exempt from attachment or execution by law, shall be calculated to be assets equivalent in dollars to the amount of the loan which could be, in fact, raised by using these assets as collateral. Assets also include any money expended by the person to post bond to obtain release regarding the current alleged offense. If the person's assets, less reasonable and necessary living expenses, are not sufficient to cover the anticipated cost of effective representation when the length and complexity of the anticipated proceedings are taken fully into account, the person shall be determined to be indigent in full or in part. The determination of the ability of the person to contribute to the cost of legal services shall be based upon specific written standards relating to income, assets and the anticipated cost of representation. Under this subsection, reasonable and necessary living expenses equal the applicable payment amount under s. 49.19 (11) (a) 1. plus other specified, emergency or essential costs. The representative or authority making the determination of indigency shall consider any assets of the spouse of the person claiming to be indigent as if they were assets of the person, unless the spouse was the victim of a crime allegedly committed by the person.
977.07(2m) (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 (1).
977.07 History History: 1977 c. 29; 1979 c. 175 s. 53; 1979 c. 356; 1981 c. 20 s. 1833, 2202 (41) (a); Sup. Ct. Order, 123 W (2d) xi (1985); 1985 a. 29; 1987 a. 27, 61, 399; 1991 a. 39; 1993 a. 16, 451, 491; 1995 a. 27, 77.
977.07 Note Judicial Council Note, 1984: Sub. (1) (c) is amended by dispensing with redeterminations of indigency unless the notice under s. 809.30 (2) (b) indicates that the defendant's financial circumstances have materially improved or the district attorney timely requests a redetermination under s. 809.30 (2) (d). The intent is to limit the cost and delay associated with indigency redeterminations to cases in which there is reason to believe that the defendant no longer qualifies for public defender assistance. [Re order effective July 1, 1985]
977.07 Annotation Defendant must prove by preponderance of evidence inability to afford counsel. State v. Buelow, 122 W (2d) 465, 363 NW (2d) 255 (Ct. App. 1984).
977.07 Annotation Determination of indigency by public defender is not end of court inquiry of right to counsel. State v. Dean, 163 W (2d) 503, 471 NW (2d) 310 (Ct. App. 1991).
977.07 AnnotationSee note to 967.06, citing 78 Atty. Gen. 133.
977.075 977.075 Payment for legal representation.
977.075(1) (1) The board shall establish by rule fixed amounts as flat payments for the cost of representation that a person, other than a parent subject to s. 48.275 (2) (b) or 938.275 (2) (b), who is responsible for payment for legal representation, may elect to pay. The rule shall require all of the following:
977.075(1)(a) (a) If a person elects to pay the applicable fixed amount, the person cannot be held liable for any additional payment for counsel.
977.075(1)(b) (b) The person may pay the fixed amount only at the beginning of the representation.
977.075(3) (3) The board shall establish by rule a fee schedule that sets the amount that a person, other than a parent subject to s. 48.275 (2) (b) or 938.275 (2) (b), who is responsible for payment for legal representation shall pay for the cost of the legal representation. The schedule shall establish a fee for a given type of case, and the fee for a given type of case shall be based on the average cost, as determined by the board, for representation for that type of case.
977.075(4) (4) The board may establish by rule a procedure for collecting a nonrefundable partial payment within 60 days after the commencement of representation for legal services from persons who are responsible for payment for legal representation. This subsection does not apply to a parent who is subject to s. 48.275 (2) (b) or 938.275 (2) (b).
977.075(5) (5) The rules under subs. (3) and (4) do not apply to a person who has paid under sub. (1).
977.075 History History: 1995 a. 27, 77.
977.076 977.076 Collections.
977.076(1)(1) If the state public defender notifies the court in which the underlying action was filed that a person who is required to reimburse the state public defender for legal representation has failed to make the required payment or to timely make periodic payments, the court may issue a judgment on behalf of the state for the unpaid balance and direct the clerk of circuit court to file and docket a transcript of the judgment, without fee. If the court issues a judgment for the unpaid balance, the court shall send a notice to the person at his or her last-known address that a civil judgment has been issued for the unpaid balance. The judgment has the same force and effect as judgments issued under s. 806.10. Except as provided in ss. 48.275 (2) (b) and 938.275 (2) (b), the judgment shall be based on the person's ability to pay and on the fee schedule established by the board under s. 977.075 (3).
977.076(2) (2) 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.
977.076 Note NOTE: Sub. (2) is shown as affected by two acts of the 1995 legislature and as merged by the revisor under s. 13.93 (2) (c).
977.076 History History: 1995 a. 27, 77, 352, 417; s. 13.93 (2) (c).
977.077 977.077 Deposit of payments received. Payments for services provided by the state public defender or other counsel under this chapter that are received pursuant to s. 977.07, 977.075 or 977.076 shall be deposited in the state treasury and credited to the appropriation under s. 20.550 (1) (L).
977.077 History History: 1995 a. 27.
977.08 977.08 Appointment of counsel.
977.08(1) (1) If the representative or the authority for indigency determinations specified under s. 977.07 (1) refers a case to or within the office of the state public defender or if a case is referred under s. 48.23 (4), the state public defender shall assign counsel according to subs. (3) and (4). If a defendant makes a request for change of attorney assignment, the change of attorney must be approved by the circuit court.
977.08(2) (2) 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 children referred under s. 48.23 (4) and indigent clients in the following:
977.08(2)(a) (a) Cases involving persons charged with a crime against life under ss. 940.01 to 940.12.
977.08(2)(b) (b) Cases involving persons charged with a felony not specified under par. (a).
977.08(2)(c) (c) Cases involving persons charged with a misdemeanor that is punishable by imprisonment but is not specified under par. (a).
977.08(2)(d) (d) Cases involving persons subject to emergency detention or involuntary civil commitment under ch. 51.
977.08(2)(e) (e) Cases involving children who are entitled to counsel or are provided counsel at the discretion of the court under s. 48.23 or 938.23.
977.08(2)(g) (g) Cases involving persons entitled to counsel under ch. 48.
977.08(2)(h) (h) Cases involving paternity determinations as provided in s. 767.52.
977.08(3) (3)
977.08(3)(a)(a) Attorneys notified under sub. (2) shall have a reasonable time to submit their names for inclusion on any or all of the lists. Attorneys shall, in submitting their names, set forth their legal education and experience which qualifies them to provide representation in the types of cases they have expressed an interest in handling. The state public defender shall compile a list of the names and qualifications submitted.
977.08(3)(b) (b) A final set of lists for each county shall be prepared, certified and annually updated by the state public defender. Persons may not be excluded from any list unless the state public defender states in writing the reasons for such action in the context of existing rules adopted by the state public defender board. Any attorney thus excluded shall then have the opportunity to appeal the state public defender's decision to the board, which shall issue a final decision in writing.
977.08(3)(c) (c) A person appointed from the set of lists prepared under par. (b) shall be appointed in order from the top of each list; if any attorney thus appointed states in writing that he or she cannot accept the appointment, he or she shall be placed on the bottom of the list, and the attorney thus elevated to the top of the list shall be appointed.
977.08(3)(d) (d) Whenever the director of a local public defender organization is appointed as counsel, he or she may assign the case to any qualified attorney or attorneys employed by the local public defender organization.
977.08(3)(e) (e) An attorney may be appointed without regard to pars. (c) and (d) if the attorney is currently or has previously represented the defendant. Any appointment out of order shall serve in lieu of an appointment in the regular order.
977.08(3)(f) (f) The state public defender shall enter into as many annual contracts as possible, subject to par. (fg), with private local attorneys or law firms for the provision of legal representation. Under any such contract, the state public defender shall assign cases without regard to pars. (c) and (d), shall set a fixed-fee total amount for all cases handled and shall pay that amount, except that the state public defender may not pay an attorney more for a case than he or she would receive according to the rates under sub. (4m). The contract shall include a procedure authorizing the state public defender to make additional payments for a case or to reassign a case if the circumstances surrounding the case justify the additional payment or reassignment.
977.08(3)(fg) (fg) The total number of cases that may be subject to the annual contracts under par. (f) for a given year may not exceed 33% of the total number of cases at the trial level that are assigned by the state public defender to private counsel under this section for that year.
977.08(3)(g) (g) The state public defender may appoint an attorney without regard to pars. (c) and (d) based on the state public defender's evaluation of that attorney's performance if the board promulgates rules under s. 977.03 (3).
977.08(4) (4) At the conclusion of each case, any private local attorney who has been appointed shall submit a copy of his or her bill to the state public defender. The state public defender shall review the bill and reject it or approve it in whole or in part. The state public defender shall then pay the bill according to the rates under sub. (4m). Any attorney dissatisfied with the decision of the state public defender regarding the bill may have the decision reviewed by the board. This subsection does not apply if the attorney is working under an agreement authorized under s. 977.02 (7m) or a contract authorized under sub. (3) (f).
977.08(4m) (4m)
977.08(4m)(a)(a) Unless otherwise provided by a rule promulgated under s. 977.02 (7r), for cases assigned before December 1, 1992, private local attorneys shall be paid $45 per hour for time spent in court; $35 per hour for time spent out of court, excluding travel, related to a case; and $25 per hour for time spent in travel related to a case if any portion of the trip is outside the county in which the attorney's principal office is located or if the trip requires traveling a distance of more than 30 miles, one way, from the attorney's principal office.
977.08(4m)(b) (b) Unless otherwise provided by a rule promulgated under s. 977.02 (7r) or by a contract authorized under sub. (3) (f), for cases assigned on or after December 1, 1992, and before July 29, 1995, private local attorneys shall be paid $50 per hour for time spent in court; $40 per hour for time spent out of court, excluding travel, related to a case; and $25 per hour for time spent in travel related to a case if any portion of the trip is outside the county in which the attorney's principal office is located or if the trip requires traveling a distance of more than 30 miles, one way, from the attorney's principal office.
977.08(4m)(c) (c) Unless otherwise provided by a rule promulgated under s. 977.02 (7r) or by a contract authorized under sub. (3) (f), for cases assigned on or after July 29, 1995, private local attorneys shall be paid $40 per hour for time spent related to a case, excluding travel, and $25 per hour for time spent in travel related to a case if any portion of the trip is outside the county in which the attorney's principal office is located or if the trip requires traveling a distance of more than 30 miles, one way, from the attorney's principal office.
977.08(5) (5)
977.08(5)(a)(a) The purpose of this subsection is to provide standards for use in budgetary determinations.
977.08(5)(b) (b) Any of the following constitutes an annual caseload standard for an assistant state public defender in the subunit responsible for trials:
977.08(5)(b)1. 1. Felony cases not specified in subd. 1m.: 184.5.
977.08(5)(b)1m. 1m. First-degree intentional homicide cases: 15.
977.08(5)(b)2. 2. Misdemeanor cases: 492.
977.08(5)(b)3. 3. Cases not covered under subd. 1., 1m. or 2.: 246.
977.08(5)(c) (c) At the trial level, 67% of the felony and juvenile cases shall be handled within the office.
977.08 Annotation The courts' power to appropriate compensation for court-appointed counsel is necessary for the effective operation of the judicial system. In ordering compensation for court ordered attorneys, a court should abide by the s. 977.08 (4m) rate when it can retain qualified and effective counsel at that rate, but should order compensation at the rate under SCR 81.01 or 81.02 or a higher rate when necessary to secure effective counsel. Friedrich v. Dane County Circuit Ct. 192 W (2d) 1, 531 NW (2d) 32 (1995).
977.085 977.085 Quarterly report procedure.
977.085(1) (1) The board shall provide quarterly reports to the department of administration and the joint committee on finance regarding all of the following:
977.085(1)(a) (a) Private bar and staff case loads at the trial and appellate levels and expenditures of moneys under s. 20.550 (1) (b) to (d) for the current fiscal year.
977.085(1)(b) (b) Projections for the private bar and staff case loads at the trial and appellate levels and for expenditures of moneys under s. 20.550 (1) (b) to (d) for the remainder of the current fiscal year and for the next fiscal year.
977.085(1)(c) (c) In all of the quarterly reports for fiscal years 1995-96 and 1996-97, information regarding the status of contracting under s. 977.08 (3) (f) and in the first 2 quarterly reports for fiscal year 1997-98, including information showing the cost savings achieved through the contracting.
977.085(1m) (1m) The projections under sub. (1) (b) shall include the number of cases projected to be assigned to the private bar and the number of cases for which reimbursement will be made under s. 20.550 (1) (d).
977.085(2) (2) If the projections under sub. (1) (b) indicate that moneys are being expended under s. 20.550 (1) (d) at a rate which will deplete the appropriation prior to the end of the current fiscal year, the board shall include in the report a plan to address the problem. The plan shall include proposals for one or more of the following:
977.085(2)(a) (a) Agency actions, including whether the reduced payment rates established by rules promulgated under s. 977.02 (7r) (a) will be put into effect.
977.085(2)(b) (b) Requests for appropriation changes under s. 13.101.
977.085(2)(c) (c) Legislation.
977.085(3) (3) The board shall provide quarterly reports to the joint committee on finance on the status of reimbursement for or recoupment of payments under ss. 48.275, 757.66, 938.275, 977.06, 977.07 (2), 977.075 and 977.076, including the amount of revenue generated by reimbursement and recoupment. The quarterly reports shall include any alternative means suggested by the board to improve reimbursement and recoupment procedures and to increase the amount of revenue generated. The department of justice, district attorneys, circuit courts and applicable county agencies shall cooperate by providing any necessary information to the state public defender.
977.085 History History: 1987 a. 27; 1989 a. 31; 1993 a. 16; 1995 a. 27 ss. 7289, 7290p; 1995 a. 77.
977.09 977.09 Confidentiality of files. The files maintained by the office of the state public defender which relate to the handling of any case shall be considered confidential and shall not be open to inspection by any person unless authorized by law, court order, the board or the state public defender.
977.09 History History: 1977 c. 29.
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