Analysis by the Legislative Reference Bureau
In criminal cases, current law permits the review of an order denying a motion
to suppress evidence or a motion challenging admissibility of a defendant's
statement as part of an appeal from a conviction, notwithstanding the fact that the
judgment of conviction was entered on a guilty plea. This bill permits review of an
order denying a motion to suppress evidence or a motion challenging admissibility
of the statement of a child, an expectant mother, or a parent as part of an appeal from
a final judgment or order, notwithstanding the fact that the final judgment or order
was entered on an admission, consent, or no contest plea to allegations in a petition
filed in cases involving children in need of protection or services or a petition to
terminate parental rights. This bill also permits the review of orders denying a
motion to suppress evidence or a motion challenging admissibility of the statement
of a juvenile upon review from a final judgment or order, notwithstanding the fact
that the final judgment or order was entered upon a plea of no contest or an
admission to the allegations of a petition filed in cases involving juveniles alleged to
be delinquent.
Current law requires that a person seeking supreme court review of an adverse
court of appeals decision file a petition for review within 30 days of the court of
appeals decision. Current law also provides a procedure for seeking reconsideration
of a court of appeals decision, but does not toll the time to file a petition for review
while the motion for reconsideration is pending. This bill tolls the time for filing a
petition for review while a motion for reconsideration is pending in the court of
appeals, and establishes revised time limits for filing a petition for review or
supplemental petition for review after the court of appeals decides the motion for
reconsideration.
Current law establishes the appellate procedures applicable to various types of
cases. Under current law, appeals in misdemeanor cases and cases involving
children, juveniles alleged to be delinquent, protective services, or persons subject
to commitment due to mental health or drug abuse are directed by statutory
cross-reference to follow felony appeal procedures. Under current law, appeals in
cases involving the commitment of sexually violent persons follow civil appeal
procedures. This bill establishes one integrated appeal procedure for appeals in
felony and misdemeanor cases, cases involving children, juveniles alleged to be
delinquent, protective services, or persons subject to commitment due to mental
health or drug abuse, the commitment of sexually violent persons, as well as
proceedings related to the commitment of persons found not guilty by reason of
mental defect. This bill also creates a procedure for seeking postdisposition relief in
cases involving the commitment of sexually violent persons.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB490, s. 1
1Section
1. 48.297 (8) of the statutes is created to read:
SB490,3,72
48.297
(8) An order denying a motion to suppress evidence or a motion
3challenging the admissibility of a statement of a child, an expectant mother, or a
4parent may be reviewed upon appeal from a final judgment or order notwithstanding
5the fact that such final judgment or order was entered upon an admission, a consent,
6or a plea of no contest to the allegations in the petition under s. 48.13 or 48.133 or
7a petition to terminate parental rights.
SB490, s. 2
8Section
2. 808.03 (3) of the statutes is created to read:
SB490,3,159
808.03
(3) Review of an order denying suppression or exclusion of evidence. 10An order denying a motion to suppress evidence or a motion challenging the
11admissibility of a statement of a defendant under s. 971.31 (10), a juvenile under s.
12938.297 (8), or a child, expectant mother, or parent under s. 48.297 (8), may be
13reviewed upon appeal from a final judgment or order notwithstanding the fact that
14the final judgment or order was entered upon a plea of guilty or no contest, an
15admission, or a consent to an information, criminal complaint, or petition.
SB490, s. 3
16Section
3. 808.04 (3) of the statutes is amended to read:
SB490,3,1917
808.04
(3) Except as provided in subs. (4) and (7), an appeal in a criminal case
18or a case under
s. 971.17 or ch. 48, 51, 55
or, 938
, or 980 shall be initiated within the
19time period specified in s. 809.30
(2) or 809.32 (2).
SB490, s. 4
20Section
4. 808.04 (4) of the statutes is amended to read:
SB490,4,4
1808.04
(4) Except as provided in sub. (7m), an appeal by the state in
either a
2criminal case under s. 974.05
, a proceeding under s. 971.17, or a case under ch. 48
3or, 938
, or 980 shall be initiated within 45 days of entry of the judgment or order
4appealed from.
SB490, s. 5
5Section
5. 808.10 of the statutes is renumbered 808.10 (1) and amended to
6read:
SB490,4,117
808.10
(1) Petition for review; time limit. A decision or order of the court of
8appeals is reviewable by the supreme court only upon a petition for review granted
9by the supreme court.
The Except as provided in sub. (2), the petition for review shall
10be filed in the supreme court within 30 days of the date of the decision of the court
11of appeals.
SB490, s. 6
12Section
6. 808.10 (2) of the statutes is created to read:
SB490,4,1613
808.10
(2) Tolling pending court of appeals reconsideration. (a) Filing of
14a motion for reconsideration in the court of appeals under s. 809.24 (1) within 20 days
15after the date of a decision of the court of appeals tolls the time for filing a petition
16for review in the supreme court.
SB490,4,2117
(b) If the motion for reconsideration is filed in the court of appeals before any
18petition for review is filed in the supreme court, the 30-day time period to file the
19petition for review starts on the date on which the court of appeals determines the
20motion for reconsideration by filing an order denying the motion for reconsideration
21or an amended decision.
SB490,4,2422
(c) If a motion for reconsideration is filed, no party may file a petition for review
23in the supreme court until the court of appeals issues an order denying the motion
24for reconsideration or an amended decision.
SB490,5,7
1(d) If a motion for reconsideration is denied and a petition for review was filed
2before the motion for reconsideration was filed, and if the time for filing a
3supplemental petition pursuant to s. 809.32 (4) had not expired when the motion for
4reconsideration was filed, the supplemental petition may be filed within 14 days
5after the filing of the order denying the motion for reconsideration or within the time
6remaining to file the supplemental petition at the time that the motion for
7reconsideration was filed, whichever is greater.
SB490,5,148
(e) If the court of appeals files an amended decision in response to the motion
9for reconsideration, any party who filed a petition for review, or a supplemental
10petition pursuant to s. 809.32 (4), prior to the filing of the motion for reconsideration
11must file with the clerk of the supreme court a notice affirming the pending petition
12or supplemental petition, a notice withdrawing the pending petition or supplemental
13petition, or an amendment to the petition for review or supplemental petition within
1414 days after the date of the filing of the court of appeals' amended decision.
SB490, s. 7
15Section
7. 809.10 (1) (d) of the statutes, as affected by Supreme Court Order
1600-02, is amended to read:
SB490,6,217
809.10
(1) (d)
Docketing statement. The person shall send the court of appeals
18an original and one copy of a completed docketing statement on a form prescribed by
19the court of appeals. The docketing statement shall accompany the court of appeals'
20copy of the notice of appeal. The person shall send a copy of the completed docketing
21statement to the other parties to the appeal. Docketing statements need not be filed
22in appeals brought under s. 809.105, 809.107, 809.32, or 974.06 (7), or in cases in
23which a party represents himself or herself. Docketing statements need not be filed
24in appeals brought under s. 809.30 or
809.40 (1)
974.05, or by the state or the
25defendant in permissive appeals in criminal cases under s. 809.50, except that
a
1docketing
statement statements shall be filed in cases arising under
chs. ch. 48, 51,
255, or 938.
SB490, s. 8
3Section
8. Subchapter III (title) of chapter 809 [precedes 809.30] of the
4statutes is amended to read:
SB490,6,66
SUBCHAPTER III
SB490,6,10
7FELONY APPEAL PROCEDURE IN
8
COURT OF APPEALS
in Criminal,
9
Chs. 48, 51, 55, 938, and 980,
10
and other cases
SB490, s. 9
11Section
9. 809.30 (title) of the statutes is amended to read:
SB490,6,13
12809.30 (title)
Rule (Appeals in felony criminal, chs. 48, 51, 55, 938, and
13980, and other cases).
SB490,6,2316
809.30
(1) (e) "Postconviction relief" means
, in a felony or misdemeanor case, 17an appeal or
a motion for
postconviction relief
under this subchapter from a circuit
18court's final judgment or order in a criminal case other than a motion under s. 973.19,
19974.06, or 974.07 (2).
In a ch. 48, 51, 55 or 938 case, other than a termination of
20parental rights case under s. 48.43, it means an appeal or a motion for
21reconsideration by the trial court of its final judgment or order; in such cases a notice
22of intent to pursue such relief or a motion for such relief need not be styled as seeking
23"postconviction" relief.
SB490, s. 11
24Section
11. 809.30 (1) (b) of the statutes is renumbered 809.30 (1) (h) and
25amended to read:
SB490,7,4
1809.30
(1) (h) "Sentencing" means
, in a felony or misdemeanor case, the
2imposition of a sentence,
a fine
, or probation
. In a ch. 48, 51, 55 or 938 case, other
3than a termination of parental rights case under s. 48.43, it means the entry of the
4trial court's final judgment or order in a criminal case.
SB490, s. 12
5Section
12. 809.30 (1) (c) of the statutes is created to read:
SB490,7,96
809.30
(1) (c) "Final adjudication" means the entry of a final judgment or order
7by the circuit court in an s. 971.17 proceeding or in a ch. 48, 51, 55, 938, or 980 case,
8other than a termination of parental rights case under s. 48.43 or a parental consent
9to abortion case under s. 48.375.
SB490, s. 13
10Section
13. 809.30 (1) (d) of the statutes is created to read:
SB490,7,1111
809.30
(1) (d) "Person" means any of the following:
SB490,7,1212
1. A defendant seeing postconviction relief.
SB490,7,1513
2. A party, other than the state, seeking postdisposition relief in a ch. 48 case,
14other than a termination of parental rights case under s. 48.43 or a parental consent
15to abortion case under s. 48.375 (7).
SB490,7,1616
3. A party, other than the state, seeking postdisposition relief in a ch. 938 case.
SB490,7,1817
4. A subject individual or ward seeking postdisposition relief in a ch. 51, 55, or
18980 case or an s. 971.17 proceeding.
SB490,7,1919
5. Anyone who may appeal under s. 51.13 (5), 51.20 (15), or 55.06 (18).
SB490, s. 14
20Section
14. 809.30 (1) (f) of the statutes is created to read:
SB490,7,2221
809.30
(1) (f) "Postdisposition relief" means an appeal or motion for relief under
22this subchapter from a circuit court's final adjudication.
SB490, s. 15
23Section
15. 809.30 (1) (g) of the statutes is created to read:
SB490,8,3
1809.30
(1) (g) "Prosecutor" means a district attorney, corporation counsel, or
2other attorney authorized by law to prosecute a criminal case, a case under ch. 48,
351, 55, 938, or 980, or a proceeding under s. 971.17.
SB490, s. 16
4Section
16. 809.30 (2) (title) of the statutes is amended to read:
SB490,8,65
809.30
(2) (title)
Appeal or
; postconviction or postdisposition motion by
6defendant.
SB490, s. 17
7Section
17. 809.30 (2) (a) of the statutes, as affected by Supreme Court Order
800-02, is amended to read:
SB490,8,199
809.30
(2) (a)
Appeal procedures; counsel to continue. A
defendant person 10seeking postconviction relief in a
felony criminal case
or a person seeking
11postdisposition relief in a ch. 48 case, other than a termination of parental rights case
12under s. 48.43 or a parental consent to abortion case under s. 48.375 (7), or a person
13seeking postdisposition relief in a ch. 51, 55, 938, or 980 case or an s. 971.17
14proceeding shall comply with this section. Counsel representing the
defendant 15person at sentencing
or at the time of the final adjudication shall continue
16representation by filing a notice under par. (b) if the
defendant person desires to
17pursue postconviction
or postdisposition relief unless
sooner counsel is discharged
18by the
defendant person or
allowed to withdraw by the
trial circuit court
before the
19notice must be filed.
SB490, s. 18
20Section
18. 809.30 (2) (b) (intro.) of the statutes, as affected by Supreme Court
21Order 00-02, is amended to read:
SB490,9,222
809.30
(2) (b)
Notice of intent to pursue postconviction or postdisposition relief. 23(intro.) Within 20 days after the date of sentencing
or final adjudication, the
24defendant person shall file in circuit court and serve on the
district attorney
1prosecutor and every other party a notice of intent to pursue postconviction
or
2postdisposition relief. The notice shall include all of the following:
SB490, s. 19
3Section
19. 809.30 (2) (b) 2. of the statutes is amended to read:
SB490,9,64
809.30
(2) (b) 2. An identification of the judgment or order from which the
5defendant person intends to seek postconviction
or postdisposition relief and the
6date
on which it was
granted or entered.
SB490, s. 20
7Section
20. 809.30 (2) (b) 3. of the statutes is amended to read:
SB490,9,98
809.30
(2) (b) 3. The name and address of the
defendant person and
the
9defendant's his or her trial counsel.
SB490, s. 21
10Section
21. 809.30 (2) (b) 4. of the statutes is amended to read:
SB490,9,1411
809.30
(2) (b) 4. Whether
defendant's
the person's trial counsel was appointed
12by the state public defender and
, if so, whether the
defendant's person's financial
13circumstances have materially improved since the date
the defendant's on which his
14or her indigency was determined.
SB490, s. 22
15Section
22. 809.30 (2) (b) 5. of the statutes is amended to read:
SB490,9,1716
809.30
(2) (b) 5. Whether the
defendant person requests the state public
17defender to appoint counsel for purposes of postconviction
or postdisposition relief.
SB490, s. 23
18Section
23. 809.30 (2) (b) 6. of the statutes, as affected by Supreme Court
19Order 00-02, is amended to read:
SB490,9,2420
809.30
(2) (b) 6. Whether a
defendant
person who does not request the state
21public defender to appoint counsel will represent himself or herself or will be
22represented by retained counsel. If the
defendant
person has retained counsel to
23pursue postconviction
or postdisposition relief, counsel's name and address shall be
24included.
SB490, s. 24
1Section
24. 809.30 (2) (c) 1. of the statutes, as affected by Supreme Court Order
200-02, is amended to read:
SB490,10,103
809.30
(2) (c) 1. If the
defendant
person requests representation by the state
4public defender for purposes of postconviction
or postdisposition relief, send to the
5state public defender's appellate intake office a copy of the notice that shows the date
6on which it was filed or entered, a copy of the judgment or order specified in the notice
7that shows the date on which it was filed or entered, a list of the court reporters for
8each proceeding in the action in which the judgment or order was entered, and a list
9of those proceedings in which a transcript has been filed with the clerk of circuit
10court.
SB490, s. 25
11Section
25. 809.30 (2) (c) 2. of the statutes, as affected by Supreme Court Order
1200-02, is amended to read:
SB490,10,1913
809.30
(2) (c) 2. If the
defendant
person does not request representation by the
14state public defender, send or furnish to the
defendant, if the defendant is person
15appearing without counsel, or to the
defendant's
person's attorney if one has been
16retained, a copy of the judgment or order specified in the notice that shows the date
17on which it was filed or entered, a list of the court reporters for each proceeding in
18the action in which the judgment or order was entered, and a list of those proceedings
19in which a transcript has been filed with the clerk of circuit court.
SB490, s. 26
20Section
26. 809.30 (2) (d) of the statutes, as affected by Supreme Court Order
2100-02, is amended to read:
SB490,11,522
809.30
(2) (d)
Indigency redetermination. Except as provided in this
23paragraph, whenever a
defendant person whose trial counsel is appointed by the
24state public defender files a notice under par. (b) requesting public defender
25representation for purposes of postconviction
or postdisposition relief, the
district
1attorney prosecutor may, within 5 days after the notice is served and filed, file in the
2trial circuit court and serve upon the state public defender a request that the
3defendant's person's indigency be redetermined before counsel is appointed or
4transcripts are
ordered requested. This paragraph does not apply to a child who is
5entitled to be represented by counsel under s. 48.23 or 938.23.
SB490, s. 27
6Section
27. 809.30 (2) (e) of the statutes, as affected by Supreme Court Order
700-02, is amended to read:
SB490,11,178
809.30
(2) (e)
State public defender appointment of counsel; transcript and
9circuit court case record request. Within 30 days after the state public defender
10appellate intake office receives the materials from the clerk of circuit court under par.
11(c), the state public defender shall appoint counsel for the
defendant person and
12request a transcript of the reporter's notes and a copy of the circuit court case record,
13except that if the
defendant's person's indigency must first be determined or
14redetermined the state public defender shall do so, appoint counsel, and request
15transcripts and a copy of the circuit court case record within 50 days after the state
16public defender appellate intake office receives the material from the clerk of circuit
17court under par. (c).
SB490, s. 28
18Section
28. 809.30 (2) (f) of the statutes, as affected by Supreme Court Order
1900-02, is amended to read:
SB490,12,320
809.30
(2) (f)
Defendant
Person not represented by public defender; transcript
21and circuit court case record request. A
defendant person who does not request
22representation by the state public defender for purposes of postconviction
or
23postdisposition relief shall request a transcript of the reporter's notes, and may
24request a copy of the circuit court case record, within 30 days after filing a notice
25under par. (b). A
defendant person who is denied representation by the state public
1defender for purposes of postconviction
or postdisposition relief shall request a
2transcript of the reporter's notes, and may request a copy of the circuit court case
3record, within 90 days after filing a notice under par. (b).
SB490, s. 29
4Section
29. 809.30 (2) (fm) of the statutes, as affected by Supreme Court Order
500-02, is amended to read:
SB490,12,136
809.30
(2) (fm)
Transcript or circuit court case record request in chs. 48 and 938
7proceedings. A child who has filed a notice of intent to pursue relief from a judgment
8or order entered in a ch. 48 or 938 proceeding shall be furnished at no cost a transcript
9of the proceedings or as much of it as is requested
, and may request a copy of the
10circuit court case record. To obtain the transcript
or a copy of the circuit court case
11record at no cost, an affidavit must be filed stating that the person who is legally
12responsible for the child's care and support is financially unable or unwilling to
13purchase the transcript
or copy of the circuit court case record.
SB490, s. 30
14Section
30. 809.30 (2) (g) 1. of the statutes, as created by Supreme Court Order
1500-02, is amended to read:
SB490,12,1816
809.30
(2) (g) 1. The clerk of circuit court shall serve a copy of the circuit court
17case record on the
defendant person within 60 days after receipt of the request for
18the circuit court case record.
SB490, s. 31
19Section
31. 809.30 (2) (g) 2. of the statutes, as affected by Supreme Court
20Order 00-02, is amended to read:
SB490,13,221
809.30
(2) (g) 2. The court reporter shall file the transcript with the circuit court
22and serve a copy of the transcript on the
defendant
person within 60 days of the
23request for the transcript. Within 20 days
of after the request for a transcript of
24postconviction
or postdisposition proceedings brought under sub. (2) (h), the court
25reporter shall file the original with the circuit court and serve a copy of that
1transcript on the
defendant person. The reporter may seek an extension under s.
2809.11 (7) for filing and serving the transcript.
SB490, s. 32
3Section
32. 809.30 (2) (h) of the statutes, as affected by Supreme Court Order
400-02, is amended to read:
SB490,13,135
809.30
(2) (h)
Notice of appeal or; postconviction or postdisposition motion. The
6defendant person shall file in circuit court and serve on the
district attorney 7prosecutor and every other party a notice of appeal or motion seeking postconviction
8or postdisposition relief within 60 days after the later of the service of the transcript
9or circuit court case record.
A postconviction The person shall file a motion for
10postconviction or postdisposition relief before a notice of appeal is filed unless the
11grounds for seeking relief are sufficiency of the evidence or issues previously raised.
12A motion
for postconviction or postdisposition relief under this section may not be
13accompanied by a notice of motion and is made when filed.
SB490, s. 33
14Section
33. 809.30 (2) (hm) of the statutes is created to read:
SB490,13,1615
809.30
(2) (hm)
Notice of appeal requirements. The person filing a notice of
16appeal under this section shall conform to the requirements under s. 809.10.
SB490, s. 34
17Section
34. 809.30 (2) (i) of the statutes, as affected by Supreme Court Order
1800-02, is amended to read:
SB490,13,2419
809.30
(2) (i)
Order determining postconviction or postdisposition motion. 20Unless an extension is requested by
the defendant
a party or
the circuit court and
21granted by the court of appeals, the circuit court shall determine by an order the
22defendant's person's motion for postconviction
or postdisposition relief within 60
23days after the filing of the motion or the motion is considered to be denied and the
24clerk of circuit court shall immediately enter an order denying the motion.
SB490, s. 35
1Section
35. 809.30 (2) (j) of the statutes, as affected by Supreme Court Order
200-02, is amended to read:
SB490,14,103
809.30
(2) (j)
Appeal from judgment and order. The
defendant person shall file
4an in circuit court and serve upon the prosecutor and other parties a notice of appeal
5from the judgment of conviction and sentence
or final adjudication and, if necessary,
6from the order of the
trial circuit court on the motion for postconviction
or
7postdisposition relief within 20 days of the entry of the order on the postconviction
8or postdisposition motion.
Appeals in chs. 48, 51, 55, and 938 cases are subject to the
9docketing statement requirements of s. 809.10 (1) (d) and may be eligible for the
10expedited appeals program in the discretion of the court.
