977.05(6)(f)
(f) The state public defender may not provide legal services or assign counsel in cases involving an appeal or postconviction motion under
s. 809.30 (2) if the notice of intent to pursue postconviction relief is not filed within the time limit specified in
s. 809.30 (2) (b) or, if the time limit specified in
s. 809.30 (2) (b) is enlarged under
s. 809.82 (2), within the time limit specified in the order enlarging time.
977.05(6)(g)
(g) The state public defender may not provide legal services or assign counsel in a proceeding under
s. 973.09 (3) to modify the conditions of a probationer's probation unless all of the following apply:
977.05(6)(g)1.
1. The probationer is contesting the modification of the conditions of probation.
977.05(6)(g)2.
2. The state or the court seeks to modify the conditions of probation to include a period of confinement under
s. 973.09 (4).
977.05(6)(h)
(h) The state public defender may not provide legal services or assign counsel in parole or extended supervision revocation proceedings unless all of the following apply:
977.05(6)(h)1.
1. The parolee or person on extended supervision is contesting the revocation of parole or extended supervision.
977.05(6)(h)2.
2. The department of corrections seeks to have the parolee or person on extended supervision imprisoned upon the revocation of parole or extended supervision.
977.05(6)(i)
(i) The state public defender may not provide legal services or assign counsel in probation revocation proceedings unless all of the following apply:
977.05(6)(i)1.
1. The probationer is contesting the revocation of probation.
977.05(6)(i)2.
2. The department of corrections seeks to have the probationer imprisoned upon the revocation of probation or a stayed sentence of imprisonment will be imposed on the probationer upon the revocation of probation.
977.05 History
History: 1977 c. 29;
1979 c. 34,
352,
356;
1981 c. 20,
27,
289;
1983 a. 377;
1987 a. 27;
1989 a. 12,
31,
56,
334;
1991 a. 263,
269;
1993 a. 318,
437,
451,
479,
481;
1995 a. 27,
77;
1997 a. 35,
283;
2001 a. 16,
61,
103,
109;
2005 a. 264;
2005 a. 443 s.
265.
977.05 Note
Judicial Council Note, 1981: Reference in sub. (4) (j) to a "writ" of habeas corpus has been removed because the remedy is now available in an ordinary action. See s. 781.01, stats., and the note thereto. [Bill 613-A]
977.05 Cross-reference
Cross Reference: See also ch.
PD 5, Wis. adm. code.
977.05 Annotation
When the court of appeals refers a case under sub. (4) (j), representation is discretionary, and the public defender must explain its decision to the court in sufficient detail within a reasonable time. State v. Alston,
92 Wis. 2d 893,
288 N.W.2d 866 (Ct. App. 1979).
977.05 Annotation
The public defender's refusal to act under sub. (4) (j) was explained in sufficient detail to demonstrate a proper exercise of discretion. State ex rel. Payton v. Kolb,
135 Wis. 2d 202,
400 N.W.2d 285 (Ct. App. 1986).
977.05 Annotation
The public defender may not be ordered to represent non-indigent parties, except under unique and unusual circumstances. State ex rel. Chiarkas v. Skow,
160 Wis. 2d 123,
465 N.W.2d 625 (1990).
977.05 Annotation
The public defender, not the county, was obligated to pay the costs of necessary expert witnesses hired by an appointed private attorney without prior approval, as required by rule. Payment of Witness Fees in State v. Huisman,
167 Wis. 2d 168,
482 N.W.2d 665 (Ct. App. 1992).
977.05 Annotation
Sub. (4r) overrules the holding in Huisman that the public defender is liable for expert fees incurred by a private attorney without prior approval, but does not overrule Huisman's holding that the public defender, and not the county, is liable for expert services for indigent defendants. Polk County v. State Public Defender,
179 Wis. 2d 312,
507 N.W.2d 576 (Ct. App. 1993). See also Polk County v. State Public Defender,
188 Wis. 2d 665,
524 N.W.2d 389 (1994).
977.05 Annotation
Read together, ss. 809.32 (4) and 977.05 (4) (j) create a statutory, but not constitutional, right to counsel in petitions for review and cases before any court, provided counsel does not determine the appeal to be without merit. If counsel fails to timely file a petition for review, the defendant may petition for a writ of habeas corpus and the supreme court has the power to allow late filing. Schmelzer v. Murphy,
201 Wis. 2d 246,
548 N.W.2d 45 (1996),
95-1096.
977.05 Annotation
Although public defenders may be permitted to provide representation when the conditions of sub. (6) (h) are met, the statute does not require them to do so and does not mandate a per se right to assistance of counsel for filing a petition for certiorari review of an administrative appeal. However, petitioners were entitled to equitable relief when they timely asked counsel to file for certiorari, counsel promised to do so, and as a result of counsel's failure to timely file they were denied certiorari review. Griffin v. Smith, 2004 WI 36,
270 Wis. 2d 235,
677 N.W.2d 259,
01-2345.
977.05 Annotation
The public defender has discretion under sub. (4) (j) to refuse appointment for indigents in conditions of confinement cases and in cases seeking postconviction and postcommitment remedies when there is no absolute right to counsel.
71 Atty. Gen. 211.
977.05 Annotation
The public defender may represent an indigent material witness, subject to s. 969.01 (3) bail provisions, so long as that representation does not create a conflict of interest with another client, but it may not represent an indigent in a civil forfeiture action unless that action is reasonably related to one for which the indigent is entitled to counsel.
72 Atty. Gen. 61.
977.05 Annotation
When the public defender declined to pursue a frivolous appeal, it did not violate the prisoner's constitutional rights. Polk County v. Dodson,
454 U.S. 312 (1981).
977.06
977.06
Indigency determinations; redeterminations; verification; collection. 977.06(1)
(1)
Duties. The state public defender shall determine whether persons are indigent and shall establish a system to do all of the following:
977.06(1)(a)
(a) Verify the information necessary to determine indigency under
s. 977.07 (2). The information provided by a person seeking assigned counsel that is subject to verification shall include any social security numbers provided on an application under
sub. (1m), income records, value of assets, eligibility for public assistance, and claims of expenses.
977.06(1)(b)
(b) Redetermine indigency during the course of representation of persons receiving representation.
977.06(1)(c)
(c) Record the amount of time spent on each case by the attorney appointed under
s. 977.08.
977.06(1)(d)
(d) Collect for the cost of representation from persons who are indigent in part or who have been otherwise determined to be able to reimburse the state public defender for the cost of providing counsel.
977.06(1m)
(1m) Application for representation. The state public defender shall request each person seeking to have counsel assigned for him or her under
s. 977.08, other than a child who is entitled to be represented by counsel under
s. 48.23 or
938.23, to provide the state public defender with his or her social security number and the social security numbers of his or her spouse and dependent children, if any.
977.06(2)(a)(a) A person seeking to have counsel assigned for him or her under
s. 977.08, other than a child who is entitled to be represented by counsel under
s. 48.23 or
938.23, shall sign a statement declaring that he or she has not disposed of any assets for the purpose of qualifying for that assignment of counsel. If the representative or authority making the indigency determination finds that any asset was disposed of for less than its fair market value for the purpose of obtaining that assignment of counsel, the asset shall be counted under
s. 977.07 (2) at its fair market value at the time it was disposed of, minus the amount of compensation received for the asset.
977.06(2)(am)
(am) A person seeking to have counsel assigned for him or her under
s. 977.08, other than a child who is entitled to be represented by counsel under
s. 48.23 or
938.23, shall sign a statement declaring that the information that he or she has given to determine eligibility for assignment of counsel he or she believes to be true and that he or she is informed that he or she is subject to the penalty under
par. (b).
977.06(2)(b)
(b) A person who makes a false representation that he or she does not believe is true for purposes of qualifying for assignment of counsel is guilty of a Class I felony.
977.06(3)(a)(a) Unless the court has made an adjustment under
s. 973.06 (1) (e), upon determination at the conclusion of a case that a person's financial circumstances are changed, the state public defender may adjust the amount of payment for counsel.
977.06(3)(b)
(b) The state public defender may petition a court that ordered payment under
s. 757.66,
973.06 (1) (e) or
977.076 (1) to modify an order or judgment to adjust the amount of payment or the scheduled amounts at any time.
977.06(4)(a)(a) A circuit court may review any indigency determination upon its own motion or the motion of the defendant and shall review any indigency determination upon the motion of the district attorney or the state public defender. The court, district attorney or state public defender may summon the defendant. The defendant may be compelled to testify only as to his or her financial eligibility under this section. If the defendant refuses to testify, the court may find the defendant is not eligible to have counsel assigned for him or her under
s. 977.08. If the defendant testifies at this hearing, his or her testimony as to his or her financial eligibility under this section may not be used directly or indirectly in any criminal action, except in a criminal action regarding a subsequent charge of perjury or false swearing.
977.06(4)(b)
(b) The state public defender shall promptly release a copy of any statement, affidavit or other information provided by a person regarding financial eligibility under
s. 977.07 only if the state public defender or a circuit court finds all of the following:
977.06(4)(b)2.
2. The person disposed of an asset for less than its fair market value for the purpose of obtaining assignment of counsel.
977.06(4)(bm)
(bm) In response to a request for information under
s. 49.22 (2m) made by the department of workforce development or a county child support agency under
s. 59.53 (5), the state public defender shall provide the name and address of an individual, the name and address of the individual's employer and financial information related to the individual, if the name, address or financial information is included in any statement, affidavit or other information provided by the individual regarding financial eligibility under
s. 977.07 and if, at the time the request for information is made, the individual is represented by the state public defender or by counsel assigned under
s. 977.08.
977.06(4)(c)
(c) Paragraphs (b) and
(bm) do not limit the authority of the state public defender to release a copy of a statement, affidavit or other information regarding financial eligibility under
s. 977.07 under other circumstances.
977.06 Cross-reference
Cross Reference: See also ch.
PD 3, Wis. adm. code.
977.07
977.07
Determination of indigency. 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,
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.
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. 809.107,
809.30,
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. For referrals made under
ss. 809.107,
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 person'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) [
s. 977.075 (3m)].
977.07 Note
NOTE: The bracketed language indicates the correct cross-reference. Corrective legislation is pending.
977.07 Cross-reference
Cross Reference: See also ch.
PD 3, Wis. adm. code.
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
The defendant must prove an inability to afford counsel by a preponderance of the evidence. State v. Buelow,
122 Wis. 2d 465,
363 N.W.2d 255 (Ct. App. 1984).
977.07 Annotation
A determination of indigency by the public defender is not the end of a court inquiry of the right to counsel. State v. Dean,
163 Wis. 2d 503,
471 N.W.2d 310 (Ct. App. 1991).
977.07 Annotation
In making its separate determination of whether a defendant is indigent for purposes of court-appointed counsel, the trial court should consider federal poverty guidelines. If a defendant has no assets and an income well below the poverty level, the trial court should set forth why it determined that the defendant could afford counsel. State v. Nieves-Gonzales, 2001 WI App 90,
242 Wis. 2d 782,
625 N.W.2d 913,
00-2138.
977.07 Annotation
Under Dean, a trial court is only obligated to advise a defendant of the right to counsel. The trial court is not required to conduct a colloquy that includes specific advice to a defendant that the right to appointed counsel is broader than the right to counsel provided by the state public defender and includes the right to counsel appointed by the court and paid for by the county. State v. Drexler, 2003 WI App 169,
266 Wis. 2d 438,
669 N.W.2d 182,
02-1313.
977.07 Annotation
The state public defender may be denied access to jail inmates who have not requested counsel, and jail authorities need only provide by telephone that information necessary for the public defender to assess the need to make an indigency determination in person under s. 977.07 (1) for an inmate who has requested counsel and claims indigency.
78 Atty. Gen. 133.
977.075
977.075
Payment for legal 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 if the person does not pay the applicable discount fee under
sub. (3m). 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(3m)
(3m) The board shall establish by rule a fee schedule that sets the discount 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, may pay during a time period established by rule instead of paying the applicable fee under
sub. (3). The fee schedule shall establish a discount fee for each type of case included in the schedule under
sub. (3). If a person pays the applicable discount fee within the time period established under this section, the person may not be held liable for any additional payment for counsel.
977.075 History
History: 1995 a. 27,
77;
2005 a. 129.
977.075 Cross-reference
Cross Reference: See also ch.
PD 6, Wis. adm. code.
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 History
History: 1995 a. 27,
77,
352,
417;
1997 a. 35.
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)(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(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.
