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),
98-1369.
974.06 Annotation
Whether a claim that newly discovered evidence entitles a probation revokee to an evidentiary hearing to determine whether a new probation revocation hearing should be conducted shall be governed by procedures analogous to those in criminal cases. Booker v. Schwarz,
2004 WI App 50,
270 Wis. 2d 745,
678 N.W.2d 361,
03-0217.
974.06 Annotation
Trial courts may correct obvious errors in sentences when it is clear that a good faith mistake was made in an initial sentencing pronouncement, the court promptly recognizes the error, and the court, by reducing an erroneous original sentence on one count and increasing the original sentence on another, seeks to impose a lawfully structured sentence that achieves the overall disposition the court originally intended. State v. Gruetzmacher,
2004 WI 55,
271 Wis. 2d 585,
679 N.W.2d 533,
02-3014.
974.06 Annotation
A hearing on a postconviction motion is required only when the movant states sufficient material facts that, if true, would entitle the defendant to relief. The mere assertion of a claim of manifest injustice, in this case the ineffective assistance of counsel, does not entitle a defendant to the granting of relief. State v. Allen,
2004 WI 106,
274 Wis. 2d 568,
682 N.W.2d 433,
02-2555.
974.06 Annotation
When a defendant's postconviction issues have been addressed by the no merit procedure under s. 809.32, the defendant may not thereafter again raise those issues or other issues that could have been raised in a previous postconviction motion under s. 974.06, absent the defendant demonstrating a sufficient reason for failing to raise those issues previously. State v. Tillman,
2005 WI App 71,
281 Wis. 2d 157,
696 N.W.2d 574,
04-0966.
974.06 Annotation
This section and Escalona-Naranjo preclude a defendant from pursuing claims in a subsequent appeal that could have been raised in his or her direct appeal, unless the defendant provides sufficient reason for failure to raise the claims in the first instance. That the appeal was dismissed pursuant to s. 809.83 (2) does not change the result. State v. Thames,
2005 WI App 101,
281 Wis. 2d 772,
700 N.W.2d 285,
04-1257.
974.06 Annotation
A defendant is not required to file a response to the no-merit report under s. 809.32, but the fact that a defendant does not file a response to a no-merit report is not, by itself, a sufficient reason to permit the defendant to raise new claims under s. 974.06. Defendants must show a sufficient reason for failing to raise an issue in a response to a no-merit report because the court will have performed an examination of the record and determined any issues noted or any issues that are apparent to be without arguable merit. State v. Allen,
2010 WI 89,
328 Wis. 2d 1,
786 N.W.2d 124,
07-0795.
974.06 Annotation
A defendant gets review of issues not raised only if the court of appeals follows the no-merit protocol. If the no-merit procedure was followed, then it is irrelevant whether the defendant raised his or her claims. He or she got review of those claims from the court of appeals, and he is barred from raising them again. If it was not followed, it is similarly irrelevant whether the claims were raised. The failure to raise them may or may not have contributed to the court of appeals' failure to identify issues of arguable merit, but the court of appeals and appellate counsel should have found them and the defendant may not be barred from bringing an motion under s. 974.06 if the no-merit procedure was not followed. State v. Allen,
2010 WI 89,
328 Wis. 2d 1,
786 N.W.2d 124,
07-0795.
974.06 Annotation
If the court of appeals fails to discuss an issue of actual or arguable merit, the defendant has the opportunity to file: 1) a motion for reconsideration of the decision under s. 809.32 (1); 2) a petition for review with the supreme court; or 3) an immediate s. 974.06 motion, identifying any issue of arguable merit that was overlooked and, in the latter instance, explaining why nothing was said in a response to the no-merit report. Delay in these circumstances can seldom be justified. Failure of a defendant to respond to both a no-merit report and the decision on the no-merit report firms up the case for forfeiture of any issue that could have been raised. State v. Allen,
2010 WI 89,
328 Wis. 2d 1,
786 N.W.2d 124,
07-0795.
974.06 Annotation
While a postconviction motion under this section is not subject to the time limits set forth in s. 809.30 or 973.19, a s. 974.06 motion is limited to constitutional and jurisdictional challenges. It cannot be used to challenge a sentence based on an erroneous exercise of discretion when a sentence is within the statutory maximum or otherwise within the statutory power of the court. State v. Nickel,
2010 WI App 161,
330 Wis. 2d 750,
794 N.W.2d 765,
09-1399.
974.06 Annotation
There is no exception for postconviction discovery motions to the Escalona-Naranjo rule requiring criminal defendants to consolidate their postconviction claims into a single appeal absent a sufficient reason. State v. Kletzien,
2011 WI App 22,
331 Wis. 2d 640,
794 N.W.2d 920,
10-0296.
974.06 Annotation
The trial court erred as a matter of law when it denied the defendant's motion for a new trial because the trial court erroneously usurped the jury's function when it weighed credible testimony from competing experts who both agreed that photogrammy allowed determining a subject's height from video recordings, but one concluded the evidence excluded the defendant while the other concluded the evidence was inconclusive. State v. Avery,
2011 WI App 148,
337 Wis. 2d 560,
807 N.W.2d 638,
10-1952.
974.06 Annotation
Because an individual has no underlying constitutional right to appointed counsel in state collateral postconviction proceedings, an individual may not insist upon implementation of Anders v. California,
386 U.S. 738, procedures. Pennsylvania v. Finley,
481 U.S. 551 (1987).
974.06 Annotation
When postconviction counsel failed to assert a claim of ineffective assistance of trial counsel in a postconviction motion under s. 974.02, the defendant's opportunity to argue that claim on direct appeal was foreclosed. The appropriate forum for asserting ineffective assistance of postconviction counsel for failure to raise ineffective assistance of trial counsel was in a collateral motion under s. 974.06. Page v. Frank,
343 F.3d 901 (2003).
974.06 Annotation
This section does not constitute direct review for purposes of calculating the date in which a judgment became final by the conclusion of direct review or the expiration of the time for seeking such review under 28 U.S.C. 2244(d)(1)(A). This section is, in fact, a statute addressing collateral relief. Graham v. Borgen,
483 F.3d 475 (2007).
974.06 Annotation
Section 974.06 motions challenging the effectiveness of appellate counsel should be filed directly in the court of appeals. But, s. 974.06 motions challenging the effectiveness of appellate counsel on the grounds that appellate counsel should have challenged trial counsel's effectiveness should be filed in the trial court. Morales v. Lundquist,
580 F.3d 653 (2009).
974.06 Annotation
Postconviction remedies in the 1970's. Eisenberg, 56 MLR 69.
974.06 Annotation
The duties of trial counsel after conviction. Eisenberg, 1975 WBB No. 2.
974.06 Annotation
Wisconsin postconviction remedies. 1970 WLR 1145.
974.06 Annotation
Postconviction procedure; custody requirements. 1971 WLR 636.
974.06 Annotation
State v. Escalona-Naranjo: A Limitation on Criminal Appeals in Wisconsin? Hunt. 1997 WLR 207.
974.06 Annotation
New Laws Reflect the Power and Potential of DNA. Findley. Wis. Law. May, 2002.
974.07
974.07
Motion for postconviction deoxyribonucleic acid testing of certain evidence. 974.07(1)(a)
(a) "Government agency" means any department, agency, or court of the federal government, of this state, or of a city, village, town, or county in this state.
974.07(1)(b)
(b) "Movant" means a person who makes a motion under
sub. (2).
974.07(2)
(2) At any time after being convicted of a crime, adjudicated delinquent, or found not guilty by reason of mental disease or defect, a person may make a motion in the court in which he or she was convicted, adjudicated delinquent, or found not guilty by reason of mental disease or defect for an order requiring forensic deoxyribonucleic acid testing of evidence to which all of the following apply:
974.07(2)(a)
(a) The evidence is relevant to the investigation or prosecution that resulted in the conviction, adjudication, or finding of not guilty by reason of mental disease or defect.
974.07(2)(b)
(b) The evidence is in the actual or constructive possession of a government agency.
974.07(2)(c)
(c) The evidence has not previously been subjected to forensic deoxyribonucleic acid testing or, if the evidence has previously been tested, it may now be subjected to another test using a scientific technique that was not available or was not utilized at the time of the previous testing and that provides a reasonable likelihood of more accurate and probative results.
974.07(3)
(3) A movant or, if applicable, his or her attorney shall serve a copy of the motion made under
sub. (2) on the district attorney's office that prosecuted the case that resulted in the conviction, adjudication, or finding of not guilty by reason of mental disease or defect. The court in which the motion is made shall also notify the appropriate district attorney's office that a motion has been made under
sub. (2) and shall give the district attorney an opportunity to respond to the motion. Failure by a movant to serve a copy of the motion on the appropriate district attorney's office does not deprive the court of jurisdiction and is not grounds for dismissal of the motion.
974.07(4)(a)(a) The clerk of the circuit court in which a motion under
sub. (2) is made shall send a copy of the motion and, if a hearing on the motion is scheduled, a notice of the hearing to the victim of the crime or delinquent act committed by the movant, if the clerk is able to determine an address for the victim. The clerk of the circuit court shall make a reasonable attempt to send the copy of the motion to the address of the victim within 7 days of the date on which the motion is filed and shall make a reasonable attempt to send a notice of hearing, if a hearing is scheduled, to the address of the victim, postmarked at least 10 days before the date of the hearing.
974.07(4)(b)
(b) Notwithstanding the limitation on the disclosure of mailing addresses from completed information cards submitted by victims under
ss. 51.37 (10) (dx),
301.046 (4) (d),
301.048 (4m) (d),
301.38 (4),
302.105 (4),
304.06 (1) (f),
304.063 (4),
938.51 (2),
971.17 (6m) (d), and
980.11 (4), the department of corrections, the parole commission, and the department of health services shall, upon request, assist clerks of court in obtaining information regarding the mailing address of victims for the purpose of sending copies of motions and notices of hearings under
par. (a).
974.07(5)
(5) Upon receiving under
sub. (3) a copy of a motion made under
sub. (2) or notice from a court that a motion has been made, whichever occurs first, the district attorney shall take all actions necessary to ensure that all biological material that was collected in connection with the investigation or prosecution of the case and that remains in the actual or constructive custody of a government agency is preserved pending completion of the proceedings under this section.
974.07(6)(a)(a) Upon demand the district attorney shall disclose to the movant or his or her attorney whether biological material has been tested and shall make available to the movant or his or her attorney the following material:
974.07(6)(a)2.
2. Physical evidence that is in the actual or constructive possession of a government agency and that contains biological material or on which there is biological material.
974.07(6)(b)
(b) Upon demand the movant or his or her attorney shall disclose to the district attorney whether biological material has been tested and shall make available to the district attorney the following material:
974.07(6)(c)
(c) Upon motion of the district attorney or the movant, the court may impose reasonable conditions on availability of material requested under
pars. (a) 2. and
(b) 2. in order to protect the integrity of the evidence.
974.07(6)(d)
(d) This subsection does not apply unless the information being disclosed or the material being made available is relevant to the movant's claim at issue in the motion made under
sub. (2).
974.07(7)(a)(a) A court in which a motion under
sub. (2) is filed shall order forensic deoxyribonucleic acid testing if all of the following apply:
974.07(7)(a)1.
1. The movant claims that he or she is innocent of the offense at issue in the motion under
sub. (2).
974.07(7)(a)2.
2. It is reasonably probable that the movant would not have been prosecuted, convicted, found not guilty by reason of mental disease or defect, or adjudicated delinquent for the offense at issue in the motion under
sub. (2), if exculpatory deoxyribonucleic acid testing results had been available before the prosecution, conviction, finding of not guilty, or adjudication for the offense.
974.07(7)(a)4.
4. The chain of custody of the evidence to be tested establishes that the evidence has not been tampered with, replaced, or altered in any material respect or, if the chain of custody does not establish the integrity of the evidence, the testing itself can establish the integrity of the evidence.
974.07(7)(b)
(b) A court in which a motion under
sub. (2) is filed may order forensic deoxyribonucleic acid testing if all of the following apply:
974.07(7)(b)1.
1. It is reasonably probable that the outcome of the proceedings that resulted in the conviction, the finding of not guilty by reason of mental disease or defect, or the delinquency adjudication for the offense at issue in the motion under
sub. (2), or the terms of the sentence, the commitment under
s. 971.17, or the disposition under
ch. 938, would have been more favorable to the movant if the results of deoxyribonucleic acid testing had been available before he or she was prosecuted, convicted, found not guilty by reason of mental disease or defect, or adjudicated delinquent for the offense.
974.07(7)(b)3.
3. The chain of custody of the evidence to be tested establishes that the evidence has not been tampered with, replaced, or altered in any material respect or, if the chain of custody does not establish the integrity of the evidence, the testing itself can establish the integrity of the evidence.
974.07(8)
(8) The court may impose reasonable conditions on any testing ordered under this section in order to protect the integrity of the evidence and the testing process. If appropriate, the court may order the state crime laboratories to perform the testing as provided under
s. 165.77 (2m) or, after consulting with the movant and the district attorney, may order that the material be sent to a facility other than the state crime laboratories for testing. If ordered to perform testing under this section, the crime laboratories may, subject to the approval of the movant and the district attorney, arrange for another facility to perform the testing.
974.07(9)
(9) If a court in which a motion under
sub. (2) is filed does not order forensic deoxyribonucleic acid testing, or if the results of forensic deoxyribonucleic acid testing ordered under this section are not supportive of the movant's claim, the court shall determine the disposition of the evidence specified in the motion subject to the following:
974.07(9)(a)
(a) If a person other than the movant is in custody, as defined in
s. 968.205 (1) (a), the evidence is relevant to the criminal, delinquency, or commitment proceeding that resulted in the person being in custody, the person has not been denied deoxyribonucleic acid testing or postconviction relief under this section, and the person has not waived his or her right to preserve the evidence under
s. 165.81 (3),
757.54 (2),
968.205, or
978.08, the court shall order the evidence preserved until all persons entitled to have the evidence preserved are released from custody, and the court shall designate who shall preserve the evidence.
974.07(9)(b)
(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.
974.07(10)(a)(a) If the results of forensic deoxyribonucleic acid testing ordered under this section support the movant's claim, 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:
974.07(10)(a)1.
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.
974.07(10)(a)2.
2. An order granting the movant a new trial or fact-finding hearing.
974.07(10)(a)3.
3. An order granting the movant a new sentencing hearing, commitment hearing, or dispositional hearing.
974.07(10)(a)5.
5. An order specifying the disposition of any evidence that remains after the completion of the testing, subject to
sub. (9) (a) and
(b).
974.07(11)
(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).
974.07(12)(a)(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.
974.07(12)(b)
(b) A movant is indigent for purposes of
par. (a) if any of the following apply:
974.07(12)(b)1.
1. The movant was referred to the state public defender under
sub. (11) for a determination of indigency and was found to be indigent.
974.07(12)(b)2.
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.
974.07(12)(b)3.
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.
974.07(12)(c)
(c) The state crime laboratories shall pay for testing ordered under this section and performed by a facility other than the state crime laboratories if the court does not order the movant to pay for the testing.
974.07(13)
(13) An appeal may be taken from an order entered under this section as from a final judgment.
974.07 Annotation
Sub. (6) gives the defendant the right to test sought-after evidence containing biological material if the circuit court determines that the evidence meets the conditions under sub. (2), the defendant complies with all reasonable conditions imposed by the court to protect the integrity of the evidence, and the testing of the evidence is at the defendant's own expense. If a movant seeks DNA testing at public expense, the movant must proceed under sub. (7) (a) or (b) and satisfy the heightened requirements in sub. (7). State v. Moran,
2005 WI 115,
284 Wis. 2d 24,
700 N.W.2d 884,
03-0561.
974.07 Annotation
Preserving Due Process: Violations of the Wisconsin DNA Evidence Preservation Statute as Per Se Violations of the Fourteenth Amendment. Kipp. 2004 WLR 1245.
