1999 Chapter 809

809.26 Annotation An appellate court's jurisdiction ceases upon remittitur in the absence of inadvertence, fraud, or void judgment. The inadvertence exception applies to the act of remitting the record itself, which must be inadvertently done. State ex rel. Fuentes v. Court of Appeals, 225 Wis. 2d 446, 593 N.W.2d 48 (1999).

subch. III of ch. 809 SUBCHAPTER III

FELONY APPEAL PROCEDURE IN COURT OF APPEALS

809.30 809.30  Rule (Appeals in felony cases).

809.30(1) (1)  Definitions. In this section:

809.30(1)(a) (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. 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.

809.30(1)(b) (b) "Sentencing" means, in a felony or misdemeanor case, the imposition of a sentence, fine or probation. In a ch. 48, 51, 55 or 938 case, other than a termination of parental rights case under s. 48.43, it means the entry of the trial court's final judgment or order.

809.30(2) (2) Appeal or postconviction motion by defendant.

809.30(2)(a) (a) A defendant seeking postconviction relief in a felony case shall comply with this section. Counsel representing the defendant at sentencing shall continue representation by filing a notice under par. (b) if the defendant desires to pursue postconviction relief unless sooner discharged by the defendant or by the trial court.

809.30(2)(b) (b) Within 20 days of the date of sentencing, the defendant shall file in the trial court and serve on the district attorney a notice of intent to pursue postconviction relief. The notice shall include the following:

809.30(2)(b)1. 1. The case name and court caption.

809.30(2)(b)2. 2. An identification of the judgment or order from which the defendant intends to seek postconviction relief and the date it was granted or entered.

809.30(2)(b)3. 3. The name and address of the defendant and the defendant's trial counsel.

809.30(2)(b)4. 4. Whether defendant's trial counsel was appointed by the state public defender and if so, whether the defendant's financial circumstances have materially improved since the date the defendant's indigency was determined.

809.30(2)(b)5. 5. Whether the defendant requests the state public defender to appoint counsel for purposes of postconviction relief.

809.30(2)(b)6. 6. Whether a defendant who does not request the state public defender to appoint counsel will represent himself or herself or will be represented by retained counsel. If the defendant has retained counsel, counsel's name and address shall be included.

809.30(2)(c) (c) Within 5 days after a notice under par. (b) is filed, the clerk shall:

809.30(2)(c)1. 1. If the defendant requests representation by the state public defender for purposes of postconviction relief, send to the state public defender's appellate intake office a copy of the notice, a copy of the judgment or order specified in the notice, a list of the court reporters for each proceeding in the action in which the judgment or order was entered and a list of those proceedings in which a transcript has been filed in the court record at the request of trial counsel.

809.30(2)(c)2. 2. If the defendant does not request representation by the state public defender, send or furnish to the defendant, if the defendant is appearing without counsel, or to the defendant's attorney if one has been retained, a copy of the judgment or order specified in the notice, a list of the court reporters for each proceeding in the action in which the judgment or order was entered and a list of those proceedings in which a transcript has been filed in the court record at the request of trial counsel.

809.30(2)(d) (d) Except as provided in this paragraph, whenever a defendant whose trial counsel is appointed by the state public defender files a notice under par. (b) requesting public defender representation for purposes of postconviction relief, the district attorney may, within 5 days after the notice is served and filed, file in the trial court and serve upon the state public defender a request that the defendant's indigency be redetermined before counsel is appointed or transcripts are ordered. This paragraph does not apply to a child who is entitled to be represented by counsel under s. 48.23 or 938.23.

809.30(2)(e) (e) Within 30 days after the filing of a notice under par. (b) requesting representation by the state public defender for purposes of postconviction relief, the state public defender shall appoint counsel for the defendant and order a transcript of the reporter's notes, except that if the defendant's indigency must first be determined or redetermined, the state public defender shall do so, appoint counsel and order transcripts within 50 days after the notice under par. (b) is filed.

809.30(2)(f) (f) A defendant who does not request representation by the state public defender for purposes of postconviction relief shall order a transcript of the reporter's notes within 30 days after filing a notice under par. (b).

809.30(2)(fm) (fm) A child who has filed a notice of intent to pursue relief from a judgment or order entered in a ch. 48 or 938 proceeding shall be furnished at no cost a transcript of the proceedings or as much of it as is requested. To obtain the transcript at no cost, an affidavit must be filed stating that the person who is legally responsible for the child's care and support is financially unable or unwilling to purchase the transcript.

809.30(2)(g) (g) The court reporter shall file the transcript with the trial court and serve a copy of the transcript on the defendant within 60 days of the ordering of the transcript. Within 20 days of the ordering of a transcript of postconviction proceedings brought under sub. (2) (h), the court reporter shall file the original with the trial court and serve a copy of that transcript on the defendant. The reporter may seek an extension under s. 809.16 (4) for filing and serving the transcript.

809.30(2)(h) (h) The defendant shall file a notice of appeal or motion seeking postconviction relief within 60 days of the service of the transcript.

809.30(2)(i) (i) The trial court shall determine by an order the defendant's motion for postconviction relief within 60 days of its filing or the motion is considered to be denied and the clerk of the trial court shall immediately enter an order denying the motion.

809.30(2)(j) (j) The defendant shall file an appeal from the judgment of conviction and sentence and, if necessary, from the order of the trial court on the motion for postconviction relief within 20 days of the entry of the order on the postconviction motion.

809.30(2)(k) (k) The clerk of the trial court shall transmit the record to the court as soon as prepared but in no event more than 40 days after the filing of the notice of appeal by the defendant. Subsequent proceedings in the appeal are governed by the procedures for civil appeals.

809.30(2)(L) (L) An appeal under s. 974.06 is governed by the procedures for civil appeals.

809.30(3) (3) Appeals by state or other party. In a felony case in which the state of Wisconsin, the representative of the public or any other party appeals and the defendant or subject individual is a child or claims or appears to be indigent, the court shall refer the person to the state public defender for the determination of indigency and the appointment of legal counsel under ch. 977.

809.30 History History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 92 Wis. 2d xiii (1979); Sup. Ct. Order, 104 Wis. 2d xi (1981); 1981 c. 390 s. 252; Sup. Ct. Order, 112 Wis. 2d xvii (1985); Sup. Ct. Order, 123 Wis. 2d xi (1985); 1985 a. 332; Sup Ct. Order, 136 Wis. 2d xxv (1987); Sup. Ct. Order, 161 Wis. 2d xiii (1991); Sup. Ct. Order No. 93-19, 179 Wis. 2d xxiii (1994); 1993 a. 16, 395, 451; 1995 a. 77.

809.30 Note Judicial Council Committee's Note, 1978: Many changes are made in prior practice in criminal cases and in protective placement, juvenile and mental commitment cases. Under the former procedure counsel, usually the State Public Defender appointed by the Supreme Court, was required to order a transcript, wait for its preparation, review it, present to the trial court by a post-trial motion any issues which the defendant desired to raise on appeal even if the issue had been presented to and decided by the court during the trial, [see State v. Charette, 51 Wis. 2d 531, 187 N.W. 2d 203 (1971) and State v. Wuensch, 69 Wis. 2d 467, 230 N.W. 2d 665 (1975)], and after the court ruled on the motion, appeal both the original conviction and the denial of the post-trial motion to the Supreme Court. Often a year or more elapsed between the sentencing of the defendant and the docketing of his appeal in the Supreme Court. This delay, combined with the delay in the Supreme Court caused by its backlog, often resulted in an appeal not being decided by the Supreme Court until two or three years after conviction.

809.30 Annotation The procedures in this section are designed to expedite the entire process by putting time limits on each step and by eliminating the necessity of each issue being presented twice to the trial court.

809.30 Annotation The term "postconviction relief", as used in this Rule, includes new trial, reduction of sentence and any other type of relief which the trial court is authorized to give, other than under s. 974.06.

809.30 Annotation Extensions of time for taking various steps under this section can be granted by the court of appeals under Rule 809.82. [Re Order effective July 1, 1978]

809.30 Note Judicial Council Committee's Note, 1979: Sub. (1) (h) is amended to increase from 10 to 20 days the period for a defendant to file a notice of appeal after entry of a trial court's order denying postconviction relief. It is sometimes difficult to meet the present 10-day requirement for filing an appeal under this subsection due to the delays that may occur in the prompt delivery by mail of the order of the trial court on a motion for postconviction relief. Increasing the time period by 10 days does not unduly lengthen the appellate process for determination of an appeal on its merits. [Re Order effective Jan. 1, 1980]

809.30 Note Judicial Council Committee's Note, 1981: Sub. (1) (e) is amended to increase from 40 to 60 days the period for the court reporter to complete and serve a copy of the transcript on the defendant and sub. (1) (f) is amended to increase from 30 to 60 days the period for the defendant to either file a notice of appeal or motion seeking postconviction relief. The previous time periods were often insufficient for preparation of the transcript and for review of the transcript and record by the defendant determining which, if any, postconviction proceedings to commence.

809.30 Annotation Sub. (1) (e) is clarified to establish that the original of the transcript is filed with the trial court by the court reporter whereas a copy is served by the court reporter on the defendant. Also, the transcript of postconviction proceedings must be filed and served by the court reporter within 20 days of ordering by the defendant.

809.30 Annotation Sub. (1) (i) is amended to provide that the clerk of the trial court shall transmit the record to the court of appeals no later than 40 days after the filing of the notice of appeal. Presently transmittal of the record is governed by Rule 809.15 (4) which allows up to 90 days from the filing of the notice of appeal.

809.30 Annotation The total time period from ordering the transcript to transmittal of the record to the court of appeals has not been altered by these amendments.

809.30 Annotation Judicial Council Committee's Note, 1978, explained that extensions of time for taking various steps under Rule 809.30 can be granted by the court of appeals under Rule 809.82. In State v. Rembert, 99 Wis. 2d 401, 299 N.W. 2d 292 (Ct. App. 1980), the court of appeals stated that its authority to extend the time periods of Rule 809.30 is to the exclusion of the trial court. The court of appeals, not the trial court, is responsible for monitoring, enforcing or extending the time periods of Rule 809.30. [Re Order effective Jan. 1, 1982]

809.30 Note Judicial Council Note, 1984: Requiring that the appellate process be initiated by filing a notice in the trial court within 20 days after sentencing is intended to:

809.30 Annotation Expedite the process; the information needed for a decision regarding postconviction relief is available to the defendant at sentencing and the decision can usually be made shortly thereafter.

809.30 Annotation Emphasize trial counsel's duties to counsel the defendant about the decision to seek postconviction relief and to continue representation until appellate counsel is retained or appointed. SCR 20.34 (2) (d); Whitmore v. State, 56 Wis. 2d 706, 203 N.W. 2d 56 (1973).

809.30 Annotation Create a record in the trial court showing whether the postconviction process has been timely invoked.

809.30 Annotation Notify the judge, clerk, court reporter and district attorney that postconviction relief is contemplated and allow the district attorney to request a redetermination of indigency in public defender cases.

809.30 Annotation Give the public defender the information needed to appoint counsel and order transcripts promptly, and to decide whether the defendant's indigency must first be determined or redetermined. [Re order effective July 1, 1985]

809.30 Note Judicial Council Note, 1986: Sub. (1) is amended to clarify the application of the statute when the appeal is taken from the final judgment or order in a non-criminal case.

809.30 Annotation Sub. (2) (fm) is prior s. 48.47 (2), renumbered for more logical placement in the statutes. [Re Order eff. 7-1-87]

809.30 Annotation The court of appeals did not abuse its discretion in refusing to allow a convicted felon to pursue a late appeal. State v. Argiz, 101 Wis. 2d 546, 305 N.W.2d 124 (1981).

809.30 Annotation The limitation period under sub. (1) (f), 1983 stats. [now sub. (2) (h)] cannot begin to run until the entry of an appealable order. In Interest of M. T. 108 Wis. 2d 410, 321 N.W.2d 289 (1982).

809.30 Annotation For issues on appeal to be considered as matter of right, postconviction motions must be made except in challenges to sufficiency of the evidence under s. 974.02 (2). State v. Monje, 109 Wis. 2d 138, 325 N.W.2d 695 (1982).

809.30 Annotation Because double jeopardy precludes retrial if an appellate court finds a conviction is not supported by sufficient evidence, the court must decide a claim of insufficiency even if there are other grounds for reversal that would not preclude retrial. State v. Ivy, 119 Wis. 2d 591, 350 N.W.2d 622 (1984).

809.30 Annotation The court may grant extensions under this section for good cause. State v. Harris, 149 Wis. 2d 943, 440 N.W.2d 364 (1989).

809.30 Annotation A defendant is incompetent to pursue postconviction relief when he or she is unable to assist counsel or make decisions committed by law to the defendant with a degree of rational reasoning. The process to be followed when a competency issue arises is discussed. State v. Debra A. E. 188 Wis. 2d 111, 523 N.W.2d 727 (Ct. App. 1994).

809.30 Annotation If a defendant is represented by counsel, the defendant is statutorily barred from proceeding pro se during the pendency of an appeal. State v. Redmond, 203 Wis. 2d 13, 552 N.W.2d 115 (Ct. App. 1996).

809.30 Annotation A criminal defendant may bring a motion under sub. (2) (h) for a new trial based on newly-discovered evidence. The defendant has the burden of establishing the 5 enumerated criteria by clear and convincing evidence. State v. Brunton, 203 Wis. 2d 195, 552 N.W.2d 452 (Ct. App. 1996).

809.30 Annotation When a criminal appeal is taken from a plea bargain it brings the entire judgment before the appellate court. Where a plea bargain is negated the the proper disposition is to remand the cause for further proceedings on the original charges. State v. Briggs, 218 Wis. 2d 61, 579 N.W.2d 783 (Ct. App. 1998).

809.30 Annotation The decision to appeal. Kempinen, WBB August, 1985.

809.30 Annotation Sentence modification by Wisconsin trial courts. Kassel. 1985 WLR 195.

809.30 Annotation The decision to appeal a criminal conviction: Bridging the gap between the obligations of trial and appellate counsel. 1986 WLR 399.

809.31 809.31  Rule (Release on bond pending seeking postconviction relief).

809.31(1) (1) A defendant convicted of a misdemeanor or felony who is seeking relief from a conviction and sentence of imprisonment or to the intensive sanctions program and who seeks release on bond pending a determination of a motion or appeal shall file in the trial court a motion seeking release.

809.31(2) (2) The trial court shall promptly hold a hearing on the motion of the defendant, determine the motion by order and state the grounds for the order.

809.31(3) (3) Release may be granted if the court finds that:

809.31(3)(a) (a) There is no substantial risk the appellant will not appear to answer the judgment following the conclusion of postconviction proceedings;

809.31(3)(b) (b) The defendant is not likely to commit a serious crime, intimidate witnesses, or otherwise interfere with the administration of justice;

809.31(3)(c) (c) The defendant will promptly prosecute postconviction proceedings; and

809.31(3)(d) (d) The postconviction proceedings are not taken for purposes of delay.

809.31(4) (4) In making the determination on the motion, the court shall take into consideration the nature of the crime, the length of sentence and other factors relevant to pretrial release.

809.31(5) (5) The defendant or the state may seek review of the order of the trial court by filing a petition in the court. The procedures in s. 809.50 govern the petition.

809.31(6) (6) The court ordering release shall require the defendant to post a bond in accordance with s. 969.09 and may impose other terms and conditions. The defendant shall file the bond in the trial court.

809.31 History History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); 1981 c. 390 s. 252; 1991 a. 39; 1997 a. 232.

809.31 Note Judicial Council Committee's Note, 1978: Section 969.09 provides for release on bond pending appeal and the conditions of the bond. Section 969.01 (2) provides for bond in felony cases after conviction in the discretion of the trial court or by the Supreme Court or a justice thereof or the Court of Appeals or a judge thereof. Neither the statutes nor case law, however, establishes the standards for release or indicates whether the Supreme Court or Court of Appeals is reviewing the action of the trial court or acting de novo. This Rule is intended to meet these deficiencies. The standards for release are those included in the American Bar Association Criminal Justice Standards, Criminal Appeals, s. 2.5. [Re Order effective July 1, 1978]

809.31 Annotation Petition for bail pending appeal discussed. State v. Whitty, 86 Wis. 2d 380, 272 N.W.2d 842 (1978).

809.31 Annotation The power of a circuit court to stay execution of a sentence for legal cause does not include the power to stay sentence while collateral attack is being made on conviction by habeas corpus proceeding in federal court. This rule has no application to that situation. State v. Shumate, 107 Wis. 2d 460, 319 N.W.2d 834 (1982).

809.31 Annotation Merits of underlying appeal may be considered by trial court in considering release pending appeal and by appellate court in determining whether immediate review of order denying release pending appeal is necessary. State v. Salmon, 163 Wis. 2d 369, 471 N.W.2d 286 (Ct. App. 1991).

809.32 809.32  Rule (No merit reports).

809.32(1) (1) If an attorney appointed under s. 809.30 or ch. 977 is of the opinion that further appellate proceedings on behalf of the defendant would be frivolous and without any arguable merit within the meaning of Anders v. California, 386 U.S. 738 (1967), the attorney shall file with the court of appeals 3 copies of a brief in which is stated anything in the record that might arguably support the appeal and a discussion of why the issue lacks merit. The attorney shall serve a copy of the brief on the defendant and shall file a statement in the court of appeals that service has been made upon the defendant. The defendant may file a response to the brief within 30 days of service.

809.32(2) (2) The attorney also shall file in the trial court a notice of appeal of the judgment of conviction and of any order denying a postconviction motion. The clerk of the trial court shall transmit the record in the case to the court pursuant to s. 809.15. The no merit brief and notice of appeal must be filed within 180 days of the service upon the defendant of the transcript under s. 809.30 (2) (g).

809.32(3) (3) In the event the court of appeals finds that further appellate proceedings would be frivolous and without any arguable merit, the court of appeals shall affirm the judgment of conviction and the denial of any postconviction motion and relieve the attorney of further responsibility in the case. The attorney shall advise the defendant of the right to file a petition for review to the supreme court under s. 809.62.

809.32(4) (4) If a fully briefed appeal is taken to the court of appeals and the attorney is of the opinion that a petition for review in the supreme court under s. 809.62 would be frivolous and without any arguable merit, the attorney shall advise the defendant of the reasons for this opinion and that the defendant has the right to file a petition for review. If requested by the defendant, the attorney shall file a petition satisfying the requirements of s. 809.62 (2) (d) and (f) and the defendant shall file a supplemental petition satisfying the requirements of s. 809.62 (2) (a), (b), (c) and (e). The petition and supplemental petition shall both be filed within 30 days of the date of the decision of the court of appeals. An opposing party may file a response to the petition and supplemental petition within 10 days of the service of the supplemental petition.

809.32 History History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 104 Wis. 2d xi (1981); 1981 c. 390 s. 252; 1983 a. 192; Sup. Ct. Order, 123 Wis. 2d xix (1985); 1987 a. 403 s. 256.

809.32 Annotation Judicial Council Committee's Note, 1981: Subs. (3) and (4) are amended to refer properly to the petition for supreme court review of decisions of the court of appeals.

809.32 Annotation Sub. (4) is amended to reflect the amendments to Rule 809.62 regulating the form, contents and length of a petition for review. If requested by the defendant, the attorney shall file with the supreme court a petition for review containing the statement of the case and the appendix required by Rule 809.62 (2) (d) and (f), as the attorney is in the best position to formulate the statement of the case and to provide the documents required for the appendix. The defendant shall file a supplement containing the statement of the issues presented for review, the table of contents, the statement of the criteria relied upon for a review and the argument amplifying the reasons relied on to support the petition as required by Rule 809.62 (2) (a), (b), (c) and (e). The rule does not prohibit the defendant from including a supplement to the statement of the case provided by the attorney.

809.32 Annotation The rule requires that both the petition and supplemental petition be filed within 30 days of the date of the decision of the court of appeals. As with all petitions for review, the opposing party may file a response to the petition and supplemental petition within 10 days. The amendment provides that the 10 days begins to run from the service of the supplemental petition. [Re Order effective Jan. 1, 1982]

809.32 Annotation This rule is constitutional although it does not secure an indigent convict the right to counsel in preparing a petition for review. State v. Mosley, 102 Wis. 2d 636, 307 N.W.2d 200 (1981).

809.32 Annotation The "no-merit brief" requirement under sub. (1) does not deny the right to counsel. State ex rel. McCoy v. Appeals Ct., 137 Wis. 2d 90, 403 N.W.2d 449 (1987).

809.32 Annotation Appellate counsel's closing of a file because of no merit, without the defendant knowing of the right to disagree and compel a no merit report, is ineffective assistance of counsel. A defendant must be informed of the right to appeal and to a no merit report, but need not be informed orally. State ex rel. Flores v. State, 183 Wis. 2d 587, 516 N.W.2d 362 (1994).