974.02 Annotation
Plea withdrawal motions made prior to sentencing impose a lesser burden on the defendant than those made after. A motion based on new evidence requires showing by a preponderance of the evidence that: (1) the evidence was discovered after entry of the plea; (2) the defendant was not negligent in seeking the evidence; (3) the evidence is material to an issue in the case; and (4) the evidence is not merely cumulative. If the evidence is a witness recantation, the court must in addition determine that the recantation has reasonable indicia of reliability. State v. Kivioja,
225 Wis. 2d 271,
592 N.W.2d 220 (1999).
974.02 Annotation
By moving for new trial, defendant does not waive right to acquittal based on insufficiency of evidence. Burks v. United States,
437 U.S. 1 (1978).
974.02 Annotation
Failure to petition state supreme court for review precluded federal habeas corpus relief. Carter v. Gagnon,
495 F. Supp. 878 (1980).
974.02 Annotation
Postconviction remedies in the 1970's. Eisenberg, 56 MLR 69.
974.02 Annotation
Confusion in the court --Wisconsin's harmless error rule in criminal appeals. 63 MLR 641 (1980).
974.02 Annotation
The duties of trial counsel after conviction. Eisenberg, 1975 WBB No. 2.
974.05(1)(1) Within the time period specified by
s. 808.04 (4) and in the manner provided for civil appeals under
chs. 808 and
809, an appeal may be taken by the state from any:
974.05(1)(a)
(a) Final order or judgment adverse to the state, whether following a trial or a plea of guilty or no contest, if the appeal would not be prohibited by constitutional protections against double jeopardy.
974.05(1)(c)
(c) Judgment and sentence or order of probation not authorized by law.
974.05(1)(d)
(d) Order or judgment the substantive effect of which results in:
974.05(2)
(2) If the defendant appeals or prosecutes a writ of error, the state may move to review rulings of which it complains, as provided by
s. 809.10 (2) (b).
974.05(3)
(3) Permission of the trial court is not required for the state to appeal, but the district attorney shall serve notice of such appeal or of the procurement of a writ of error upon the defendant or the defendant's attorney.
974.05 Annotation
Where the state appeals from an order suppressing evidence the defendant can ask for a review of another part of the order, although he could not appeal directly. State v. Beals,
52 Wis. 2d 599,
191 N.W.2d 221.
974.05 Annotation
The fact that the state can appeal from an order suppressing evidence, but the defendant cannot, does not show a denial of equal protection of the law. State v. Withers,
61 Wis. 2d 37,
211 N.W.2d 456.
974.05 Annotation
The granting of a motion to withdraw a guilty plea is a final order appealable by the state. State v. Bagnall,
61 Wis. 2d 297,
212 N.W.2d 122.
974.05 Annotation
The trial court's setting aside of a jury finding of defendant's guilt in exhibiting an obscene film preview contrary to 944.21, and its dismissal of the information, was not appealable by the state because it was a final judgment adverse to the state made after jeopardy had attached, and jeopardy was not waived; hence the judgment was not within those situations from which a state appeal is authorized by this section. State v. Detco, Inc.
66 Wis. 2d 95,
223 N.W.2d 859.
974.05 Annotation
Trial court's order specifying conditions of incarceration was neither judgment nor sentence under (1) (c). State v. Gibbons,
71 Wis. 2d 94,
237 N.W.2d 33.
974.05 Annotation
Under 808.03 (2), both prosecution and defense may seek permissive appeal of nonfinal orders. State v. Rabe,
96 Wis. 2d 48,
291 N.W.2d 809 (1980).
974.05 Annotation
Sub. (1) (d) 2 authorized state to appeal order suppressing defendant's oral statements. State v. Mendoza,
96 Wis. 2d 106,
291 N.W.2d 478 (1980).
974.05 Annotation
Sub. (2) does not confine right of cross-appeal to final judgments or orders. State v. Alles,
106 Wis. 2d 368,
316 N.W.2d 378 (1982).
974.05 Annotation
State may appeal as matter of right any pretrial order barring admission of evidence which might "normally" determine success of prosecution's case. State v. Eichman,
155 Wis. 2d 552,
456 N.W.2d 143 (1990).
974.06
974.06
Postconviction procedure. 974.06(1)
(1) After the time for appeal or postconviction remedy provided in
s. 974.02 has expired, a prisoner in custody under sentence of a court or a person convicted and placed with a volunteers in probation program under
s. 973.11 claiming the right to be released upon the ground that the sentence was imposed in violation of the
U.S. constitution or the constitution or laws of this state, that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
974.06(2)
(2) A motion for such relief is a part of the original criminal action, is not a separate proceeding and may be made at any time. The supreme court may prescribe the form of the motion.
974.06(3)
(3) Unless the motion and the files and records of the action conclusively show that the person is entitled to no relief, the court shall:
974.06(3)(a)
(a) Cause a copy of the notice to be served upon the district attorney who shall file a written response within the time prescribed by the court.
974.06(3)(b)
(b) If it appears that counsel is necessary and if the defendant claims or appears to be indigent, refer the person to the state public defender for an indigency determination and appointment of counsel under
ch. 977.
974.06(3)(d)
(d) Determine the issues and make findings of fact and conclusions of law. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or is otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the person as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the person or resentence him or her or grant a new trial or correct the sentence as may appear appropriate.
974.06(4)
(4) All grounds for relief available to a person under this section must be raised in his or her original, supplemental or amended motion. Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the person has taken to secure relief may not be the basis for a subsequent motion, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental or amended motion.
974.06(5)
(5) A court may entertain and determine such motion without requiring the production of the prisoner at the hearing. The motion may be heard under
s. 807.13.
974.06(6)
(6) Proceedings under this section shall be considered civil in nature, and the burden of proof shall be upon the person.
974.06(7)
(7) An appeal may be taken from the order entered on the motion as from a final judgment.
974.06(8)
(8) A petition for a writ of habeas corpus or an action seeking that remedy in behalf of a person who is authorized to apply for relief by motion under this section shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced the person, or that the court has denied the person relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his or her detention.
974.06 History
History: 1971 c. 40 s.
93;
1977 c. 29,
187,
418;
1981 c. 289; Sup. Ct. Order, 141 Wis. 2d xiii (1987);
1991 a. 253.
974.06 Note
Judicial Council Note, 1981: Sub. (8) has been amended to reflect the fact that habeas corpus relief is now available in an ordinary action in circuit court. See s. 781.01, stats., and the note thereto and s. 809.51, stats. [Bill 613-A]
974.06 Note
Judicial Council Note, 1988: Sub. (5) is amended to allow postconviction motions under this section to be heard by telephone conference. [Re Order effective Jan. 1, 1988]
974.06 Annotation
Plea bargaining as a basis for withdrawal of guilty plea and a new trial discussed. State v. Wolfe,
46 Wis. 2d 478,
175 N.W.2d 216.
974.06 Annotation
Where defendant made a pro se motion within the time limited but counsel was not appointed until later, the court should hear the motion. He can withdraw a guilty plea as a matter of right if he establishes: (1) That there occurred a violation of a relevant constitutional right; (2) that this violation caused him to plead guilty; and (3) that at the time of his guilty plea he was unaware of potential constitutional challenges to the prosecution's case against him because of that violation. State v. Carlson,
48 Wis. 2d 222,
179 N.W.2d 851.
974.06 Annotation
Defendant's contention that he concluded he was going to be sentenced under the Youth Service Act and would be incarcerated for no more than 2 years, whereas a 20-year sentence was imposed (assuming verity), constituted no grounds for withdrawal of the guilty plea, his trial defense counsel asserting at the postconviction hearing that such a sentence was a desired objective but that no agreement had been made with the district attorney that it could be achieved nor representation made to his client that the lesser sentence would be imposed. State v. Froelich,
49 Wis. 2d 551,
182 N.W.2d 267.
974.06 Annotation
The sentencing judge is not disqualified from conducting a hearing on a postconviction motion to withdraw a guilty plea unless he has interjected himself in the plea bargaining to the extent he may become a material witness or otherwise disqualify himself. Rahhal v. State,
52 Wis. 2d 144,
187 N.W.2d 800.
974.06 Annotation
After a plea bargain for a recommendation of a one-year sentence by the prosecutor, where a presentence report recommended 2 years and defendant did not object, he cannot then withdraw his guilty plea. Farrar v. State,
52 Wis. 2d 651,
191 N.W.2d 214.
974.06 Annotation
Postconviction procedure cannot be used as a substitute for appeal; trial errors such as sufficiency of the evidence, instructions and errors in admission of evidence cannot be raised. State v. Langston,
53 Wis. 2d 228,
191 N.W.2d 713.
974.06 Annotation
No hearing need be granted where the record refutes defendant's claims and they can be found to have no merit. Nelson v. State,
54 Wis. 2d 489,
195 N.W.2d 629.
974.06 Annotation
This section is not a remedy for an ordinary rehearing or reconsideration of sentencing on its merits. Only constitutional and jurisdictional questions may be raised. This section may be used to review sentences and convictions regardless of the date of prosecution. State ex rel. Warren v. County Court,
54 Wis. 2d 613,
197 N.W.2d 1.
974.06 Annotation
A petition under this section is limited to jurisdictional and constitutional issues; it is not a substitute for a motion for a new trial. Vara v. State,
56 Wis. 2d 390,
202 N.W.2d 10.
974.06 Annotation
When a defendant is informed that he might receive a maximum sentence of 20 years on an attempted murder charge and is then sentenced to 25 years, the sentence will be reduced to 20 years. Preston v. State,
58 Wis. 2d 728,
206 N.W.2d 619.
974.06 Annotation
The question of sufficiency of the evidence cannot be reached by a motion under this section; the utter failure to produce any evidence could be, because conviction without evidence of guilt would be a denial of due process. Weber v. State,
59 Wis. 2d 371,
208 N.W.2d 396.
974.06 Annotation
A motion for postconviction relief may be denied without a hearing if defendant fails to allege sufficient facts to raise a question of fact or presents only conclusory allegations, or the record conclusively demonstrates that he is not entitled to relief. Where multiple grounds for relief are claimed, particularized rulings as to each are to be made in denying the motion without an evidentiary hearing. Smith v. State,
60 Wis. 2d 373,
210 N.W.2d 678.
974.06 Annotation
Objection to the arrest, insufficiency of the complaint, or the use of illegal means to obtain evidence may not be raised for the first time under this section, in view of 971.31 (2). State v. Kuecey,
60 Wis. 2d 677,
211 N.W.2d 453.
974.06 Annotation
When a defendant, ordered to be present at a hearing under this section, escapes prison, the court may summarily dismiss the petition. State v. John,
60 Wis. 2d 730,
211 N.W.2d 463.
974.06 Annotation
An appeal from an order under this section in a misdemeanor case must be to the circuit court. State v. Brice,
61 Wis. 2d 397,
212 N.W.2d 596.
974.06 Annotation
The supreme court as a caveat points out that it does not encourage the assignment of members of the prosecutor's staff to review petitions for postconviction relief. Holmes v. State,
63 Wis. 2d 389,
217 N.W.2d 657.
974.06 Annotation
The facts must be alleged in the petition and the petitioner cannot stand on conclusory allegations, hoping to supplement them at a hearing. Levesque v. State,
63 Wis. 2d 412,
217 N.W.2d 317.
974.06 Annotation
The failure to establish a factual basis for a guilty plea is of constitutional dimensions and is the type of error which can be reached by a 974.06 motion. Loop v. State,
65 Wis. 2d 499,
222 N.W.2d 694.
974.06 Annotation
The necessity or desirability of the presence of defendant at a hearing on postconviction motions is a matter of discretion for the trial court and depends upon the existence of substantial issues of fact; hence, there was no abuse of discretion in denial of defendant's motion to be present at the hearing on his 974.06 motions where only issues of law were raised and defense counsel had other opportunities to consult with his client. Sanders v. State,
69 Wis. 2d 242,
230 N.W.2d 845.
974.06 Annotation
Although the allegation that defendant was sick from extensive use of amphetamines at the time of his confession finds no support in the record of the original proceedings, a silent record does not conclusively show a defendant is entitled to no relief, and where defendant refuted his earlier statement that no promises were made to induce his confession other than that he would not have to go to jail that day and alleged a promise of probation, an issue of fact was presented requiring an evidentiary hearing. Zuehl v. State,
69 Wis. 2d 355,
230 N.W.2d 673.
974.06 Annotation
In an appeal via writ of error to review a sentence for forgery consisting of an 8-year prison term with the additional requirement that restitution be made, the supreme court, while reaching the merits, determines that henceforth the procedures made applicable by the postconviction relief statute shall be the exclusive procedure utilized to seek correction of an allegedly unlawful sentence. Spannuth v. State,
70 Wis. 2d 362,
234 N.W.2d 79.
974.06 Annotation
State courts do not have subject-matter jurisdiction over postconviction motion of federal prisoner not in custody under the sentence of a state court. State v. Theoharopoulos,
72 Wis. 2d 327,
240 N.W.2d 635.
974.06 Annotation
Double jeopardy clause prohibits increase of valid sentence to offset erroneously lenient sentence. State v. North,
91 Wis. 2d 507,
283 N.W.2d 457 (Ct. App. 1979).
974.06 Annotation
Issue considered on direct review cannot be reconsidered on motion under this section. Beamon v. State,
93 Wis. 2d 215,
286 N.W.2d 592 (1980).
974.06 Annotation
A court had no jurisdiction under this section, to hear a challenge of the computation of prisoner's good time. Habeas corpus is the proper avenue of relief. State v. Johnson,
101 Wis. 2d 698,
305 N.W.2d 188 (Ct. App. 1981).
974.06 Annotation
Power of circuit court to stay execution of sentence for legal cause does not include power to stay sentence while collateral attack is being made on conviction by habeas corpus proceeding in federal court. State v. Shumate,
107 Wis. 2d 460,
319 N.W.2d 834 (1982).
974.06 Annotation
Defendant's uncorroborated allegations will not support claim of ineffective representation where counsel is unavailable to rebut claim of ineffectiveness. State v. Lukasik,
115 Wis. 2d 134,
340 N.W.2d 62 (Ct. App. 1983).
974.06 Annotation
Formal violation of 971.08 may not be remedied under this section. Motions under this section are limited to jurisdictional and constitutional matters. State v. Carter,
131 Wis. 2d 69,
389 N.W.2d 1 (1986).
974.06 Annotation
While trial court's failure to submit lesser-included offense instruction to jury would probably result in reversal upon timely direct appeal, error is not of constitutional proportion entitling defendant to pursue relief under this section. State v. Nicholson,
148 Wis. 2d 353,
435 N.W.2d 298 (Ct. App. 1988).
974.06 Annotation
Defendant challenging sentence on due process grounds based upon failure to receive copy of presentence investigation report is entitled to hearing only upon showing that the court had blanket policy of denial of access and policy was specifically applied to defendant, or that before sentencing plea defendant personally sought access and was denied it. State v. Flores,
158 Wis. 2d 636,
462 N.W.2d 899 (Ct. App. 1990).
974.06 Annotation
Defendant's death did not moot 974.06 motion or appeal of its denial. State v. Witkowski,
163 Wis. 2d 985,
473 N.W.2d 512 (Ct. App. 1991).
974.06 Annotation
Court should permit post sentencing withdrawal of guilty or no contest only to correct "manifest injustice". State v. Krieger,
163 Wis. 2d 241,
471 N.W.2d 599 (Ct. App. 1991).
974.06 Annotation
Where a defendant is represented by the same attorney at trial and after conviction, the attorney's inability to assert his or her own ineffectiveness is a sufficient reason under sub. (4) for not asserting the matter in the original s. 974.06 motion. State v. Robinson,
177 Wis. 2d 46,
501 N.W.2d 831 (Ct. App. 1993).
974.06 Annotation
When a defendant must be present for a postconviction evidentiary hearing, the use of a telephone hearing is not authorized. State v. Vennemann,
180 Wis. 2d 81,
508 N.W.2d 404 (1993).
974.06 Annotation
A defendant is prohibited from raising a constitutional issue on s. 974.06 motion if the claim could have been raised in a previously filed s. 974.02 motion or a direct appeal. State v. Escalona-Naranjo,
185 Wis. 2d 169,
517 N.W.2d 157 (1994).
974.06 Annotation
Generally new rules of law will not be applied retroactively to cases on collateral review under this section. State v. Horton,
195 Wis. 2d 280,
536 N.W.2d 155 (Ct. App. 1995).
974.06 Annotation
A motion may not be filed under this section while an appeal of the same case is pending. Where an appeal has not been resolved, the time for appeal under sub. (1) has not expired. State v. Redmond,
203 Wis. 2d 13,
552 N.W.2d 115 (Ct. App. 1996).
974.06 Annotation
The Escanalona-Naranjo rule that a prisoner is compelled to raise in an original motion all grounds for postconviction relief that could have all been brought at the same time is extended to appeals by certiorari from parole and probation revocation hearings. State ex re. Macemon v. Christie,
216 Wis. 2d 336,
576 N.W.2d 84 (Ct. App. 1998).
974.06 Annotation
Subject to any other bars, all defendants on probation have standing to pursue postconviction relief under this section. State v. Mentzel,
218 Wis. 2d 734,
581 N.W.2d 581 (Ct. App. 1998)
974.06 Annotation
Section 973.13 commands that all sentences in excess of that authorized by law be declared void, including the repeater portion of a sentence. Prior postconviction motions that failed to challenge the validity of the sentence do not bar seeking relief from faulty repeater sentences. State v. Flowers,
221 Wis. 2d 20,
586 N.W.2d 175 (Ct. App. 1998).
974.06 Annotation
A motion to modify a sentence under this section, due to an improperly entered restitution order, does not allow granting a money judgment against the state for the recovery of improperly collected restitution under the improper sentence. State v. Minniecheske,
223 Wis. 2d 493,
590 N.W.2d 17 (Ct. App. 1998).
974.06 Annotation
Because individual has no underlying constitutional right to appointed counsel in state collateral postconviction proceedings, individual may not insist upon implementation of Anders v. California,
386 U.S. 738, procedures. Pennsylvania v. Finley,
481 U.S. 551 (1987).
