809.32(2)(b)(b) The clerk of circuit court shall transmit the no-merit notice of appeal and the statement on transcript to the court of appeals within 3 days of filing. The clerk of the court of appeals shall docket the no-merit appeal upon receipt. The clerk shall assign a case number, create a notice that the case has been docketed, and transmit the notice to the clerk of circuit court.

809.32(2)(c)(c) For electronic filing users in the circuit court case, receipt of the no-merit notice of appeal and statement on transcript through the circuit court electronic filing system shall constitute service of the documents. Receipt of the notice of docketing shall constitute service and notification that the no-merit appeal has been commenced in the court of appeals. Where service on the attorney general is required by s. 809.802 (1), service shall be made as provided in s. 809.802 (2). The clerk of the court of appeals shall serve the notice of docketing on paper parties by traditional means.

809.32(2)(d)(d) The no-merit report shall be filed in the court of appeals within 14 days after the date on which the record is filed in the office of the clerk of the court of appeals. Service on electronic users shall be through the appellate electronic filing system. The attorney shall serve the no-merit report on paper parties by traditional means.

809.32(3)(3) Decision on no-merit report. In the event that the court of appeals determines that further appellate proceedings would be frivolous and without any arguable merit, the court of appeals shall affirm the judgment of conviction or final adjudication and the denial of any postconviction or postdisposition motion and relieve the attorney of further responsibility in the case. The attorney shall advise the person of the right to file a petition for review to the supreme court under s. 809.62.

809.32(4)(a)(a) Petition and supplemental petition. 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 person of the reasons for this opinion and that the person has the right to file a petition for review. If requested by the person, the attorney shall file a petition satisfying the requirements of s. 809.62 (2) (d) and (f), and the person shall file a supplemental petition satisfying the requirements of s. 809.62 (2) (a), (b), (c), and (e). The person’s supplemental petition shall not exceed 35 pages if a monospaced font or handwriting is used, or 8,000 words if a proportional serif font is used.

809.32(5)(b)(b) Supplemental petition. If a motion for reconsideration in the court of appeals under s. 809.24 (1) is denied and a petition for review was filed before the motion for reconsideration was filed, and if the time for filing a supplemental petition under this subsection had not expired when the motion for reconsideration was filed, the supplemental petition may be filed within 14 days after the filing of the order denying the motion for reconsideration or within the time remaining to file the supplemental petition at the time that the motion for reconsideration was filed, whichever is greater.

809.32(5)(c)(c) Notice affirming, withdrawing, or amending pending petition or supplemental petition. If the court of appeals files an amended decision in response to the motion for reconsideration under s. 809.24 (1), any party who filed a petition for review or a supplemental petition for review under this section prior to the filing of the motion for reconsideration must file with the clerk of the supreme court a notice affirming the pending petition or supplemental petition, a notice withdrawing the pending petition or supplemental petition, or an amendment to the pending petition or supplemental petition within 14 days after the date of the filing of the court of appeals’ amended decision.

809.32(5)(d)(d) Responses. If a motion for reconsideration is denied and a petition for review or a supplemental petition had been filed before the motion for reconsideration was filed, and if the time for filing a response to the petition or supplemental petition had not expired when the motion for reconsideration was filed, a response to the petition or the supplemental petition may be filed within 14 days of the order denying the motion for reconsideration. If a supplemental petition is filed under par. (b), the responding party may file a response to the supplemental petition within 14 days after service of the supplemental petition. After the petitioning party files the notice affirming or withdrawing the pending petition or supplemental petition or an amendment to the pending petition or supplemental petition under par. (c), the responding party must file a response to the notice or amendment within 14 days after service of the notice or amendment. The response to the notice or amendment may be an affirmation of the responding party’s earlier response or a new response.

809.32 HistoryHistory: 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; Sup. Ct. Order No. 00-02, 2001 WI 39, 242 Wis. 2d xxvii; Sup. Ct. Order No. 02-01, 2002 WI 120, 255 Wis. 2d xiii; Sup. Ct. Order No. 04-08, 2008 WI 108, filed 7-30-08, eff. 1-1-09; Sup. Ct. Order No. 08-15 and Sup. Ct. Order No. 08-18, 2009 WI 4, 311 Wis. 2d xxix; 2009 a. 25; 2017 a. 365; Sup. Ct. Order No. 20-07, 2021 WI 37, 397 Wis. 2d xiii.

809.32 AnnotationSub. (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 NoteThe 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 NoteSubsection (1) (a) was amended to specify that the no-merit procedure applies only to direct appeals and that no-merit reports should be filed only when the defendant requests submission of a no-merit report or does not consent to closing the file without further representation by the appointed attorney.

809.32 NoteSubsection (1) (b) creates new counseling and notification requirements for appointed attorneys. Before filing a no-merit report, the appointed attorney must discuss each identified issue with the defendant and explain why the issue lacks arguable merit. The attorney must inform the defendant of the defendant’s options: file a no-merit report, close the file without filing an appeal or a no-merit report, or file an appeal without the assistance of appointed counsel. The attorney must inform the defendant that a no-merit report will be filed if the defendant requests submission of a no-merit report or if the defendant does not consent to closing the file without further representation by the appointed attorney. The attorney must inform the defendant that, if a no-merit report is submitted, the attorney will furnish copies of the transcript and circuit court case record to the defendant upon request. The attorney must notify the defendant that, if a no-merit report will not be submitted, the attorney will forward the attorney’s copies of the transcript and circuit court case record to the defendant upon request. The attorney must also advise the defendant of the no-merit procedures set forth in this section, including the defendant’s right to file a response to the attorney’s no-merit report, and the attorney’s right to file a supplemental no-merit report and affidavit containing facts outside the record, possibly including confidential information, to rebut allegations made in the defendant’s response to the no-merit report.

809.32 NoteSubsection (1) (c) creates a new certification rule that requires the appointed attorney to certify that the attorney has complied with the counseling and notification requirements of sub. (1) (b).

809.32 NoteSubsection (1) (d) contains the no-merit report service rule from former sub. (1) (a) and creates a new transcript and circuit court case record service rule. The attorney must serve a copy of the no-merit report on the defendant. If the defendant requests a copy of the transcript and circuit court case record, the attorney must forward the copies within 14 days after receipt of the defendant’s request. The attorney must file a statement in the court of appeals that service has been made on the defendant.

809.32 NoteSubsection (1) (e) contains the response to the no-merit report rule from former sub. (1) (a). Subsection (1) (e) also creates a new rule that requires the clerk of the court of appeals to send a copy of the defendant’s response to the no-merit report, within 5 days of the filing of the response, to the attorney who filed the no-merit report.

809.32 NoteSubsection (1) (f) was created to allow the attorney to reply to the defendant’s response to a no-merit report. The rule allows the attorney to file a supplemental no-merit report and affidavit(s) disclosing information that is outside the record and relevant to the attorney’s no-merit determination without violating confidentiality rules. The supplemental report and affidavit procedure is in accordance with SCR 20:1.6 (c) (1), which allows disclosures of otherwise confidential communications “to rectify the consequences of a client’s criminal or fraudulent act in the furtherance of which the lawyer’s services had been used;” SCR 20:1.6 (c) (2), which allows disclosures “to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client ... or to respond to allegations in any proceeding concerning the lawyer’s representation of the client;” and SCR 20:3.3, which requires candor toward the tribunal.

809.32 NoteSubsection (1) (g) creates a new rule that requires fact-finding upon a remand to the circuit court if the defendant’s response to the no-merit report and the attorney’s supplemental no-merit report and affidavit allege facts outside the record; and if the facts alleged by the defendant, if true, would make resolution of the appeal under sub. (3) inappropriate.

809.32 NoteThe second sentence in sub. (2) requires the attorney to state, in the no-merit notice of appeal, of the time limit for filing the no-merit report and the calculation used to determine that time limit. The fourth sentence in sub. (2) requires the attorney to file a statement on transcript with the clerk, but exempts counsel from serving a transcript on other parties. The fifth sentence in sub. (2) requires counsel to serve copies of all other papers on the state.