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Vol. 73, No. 8, August 2000 |
Supreme Court Orders
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SECTION 809.19(4) of the statutes is repealed and recreated
to read:
809.19(4) Reply brief. The appellant shall file a reply brief,
or a statement that a reply brief will not be filed, within 15
days after the later of the following events: the date of service
of the respondent's brief or the date on which the court
accepts the respondent's brief for filing. If the date of
service is later than the date of filing and if service is accomplished
by mail, 3 additional days shall be added to the 30-day period
for filing the reply brief, under s. 801.15(5)(a). The reply
brief shall comply with subs. (1)(e) and (f).
SECTION 809.19(6) of the statutes is repealed and recreated
to read:
809.19(6) Cross-appeal. Briefing in a cross-appeal shall be
as follows:
(a) An appellant-cross-respondent shall file a brief titled
"Appellant's Brief" within the time specified
by and in compliance with the requirements of subs. (1) and (2).
(b) A respondent-cross-appellant shall file a brief titled
"Combined Brief of Respondent and Cross-Appellant,"
within 30 days after the later of the following events: the date
of service of the appellant-cross-respondent's brief or
the date on which the court of appeals accepts the appellant-cross-respondent's
brief for filing. The front and back covers of the combined brief
shall be red. The "respondent" portion of the combined
brief shall comply with the requirements of this section for
a respondent's brief, including the length limitation for
such a brief set forth in sub. (8)(c)1. The "cross-appellant"
portion of the combined brief shall comply with the requirements
of subs. (1) and (2) for an appellant's main brief, including
the length limitation for such a brief set forth in sub. (8)(c)1,
except that: the requirements of sub. (l)(c) and (l)(d) may be
omitted; the "cross-appellant" portion of the combined
brief shall be preceded by a blank blue cover; and a signature
shall be required only at the conclusion of the "cross-appellant"
portion of the combined brief.
(c) An appellant-cross-respondent shall file a brief titled
"Combined Brief of Appellant and Cross-Respondent,"
within 30 days after the later of the following events: the date
of service of the respondent-cross-appellant's brief or
the date on which the court accepts the respondent-cross-appellant's
brief for filing. The front and back covers of the combined brief
shall be gray. The "appellant" portion of the combined
brief shall comply with the requirements of sub. (4) for a reply
brief, including the length limitation for such a brief set forth
in sub. (8)(c)1. The "cross-respondent" portion of
the combined brief shall comply with the requirements of sub.
(3) for a respondent's brief, including the length limitation
for such a brief set forth in sub. (8)(c)1, except that: the
requirement of sub. (1)(c) may be omitted; the "cross-respondent"
portion of the combined brief shall be preceded by a blank red
cover; and a signature shall be required only at the conclusion
of the "cross-respondent" portion of the combined brief.
(d) A respondent-cross-appellant shall file either a reply
brief titled "Reply Brief of Cross-Appellant" in the
form required by sub. (4) for reply briefs or a statement that
a reply brief will not be filed within 15 days after the later
of the following events: the date of service of the appellant-cross-respondent's
brief or the date on which the court accepts the appellant-cross-respondent's
brief for filing.
(e) Each part of a combined brief shall comply with the form
and length certification requirements of sub. (8)(d).
SECTIONS 809.19(7)(c) and (8)(a) and (b)4. of the statutes
are amended to read:
809.19(7)(c) Except as provided in par. (b), the motion shall
be filed not later than 10 14 days after the respondent's
brief is filed, and the brief shall be filed within the time
specified by the court.
(8)(a) Number. 1. Except as provided in s. 809.43,
a A person who files shall file either 22 copies of a
brief or appendix in the supreme court or such other the number
as that the court directs, and shall serve 3 copies on each party.
2. Except as provided in subd. 3. and s. 809.43, a person
who files shall file either 10 copies of a brief or appendix
in a the court of appeals shall file 10 copies with the court,
or such other the number as that the court directs,
and shall serve 3 copies on each party.
3. Except as provided in s. 809.43, a person who is found
indigent under s. 814.29(1) and files who is not represented
by counsel shall file 5 copies of a brief or appendix in the
court of appeals shall file the original and 4 copies with the
court and shall serve one copy on each party. A prisoner who
has been granted leave to proceed without prepayment of fees
under s. 814.19(1)(m) and who is not represented by counsel shall
file 5 copies of a brief or appendix in the court of appeals
and shall serve one copy on each party.
(b)4. Securely bound only on the left side with heavy strength
staples or by means of "velobinding" or the
"perfect" ("hot glue") binding method, with
pagination at the center of the bottom margin. A brief may be
bound by another methods if authorized in writing
by the clerk of the court.
SECTION 809.19(9) of the statutes is amended to read:
809.19(9) Brief covers. Each brief or appendix shall have
a front and back cover. The front cover shall contain the name
of the court, the caption and number of the case, the court and
judge appealed from, the title of the document and the name and
address of counsel filing the document. Except as provided
in s. 809.81(8), the caption shall include the full name of each
party in the circuit court and shall designate each party so
as to identify its status in the circuit court and in the appellate
court, if any. The covers of the appellant's brief shall
be blue; the respondent's, red; a combined respondent-cross-appellant's,
red with a blue divider page; a combined reply-cross-respondent's,
gray with a red divider page; a guardian ad litem's, yellow;
a person other than a party, green; the reply brief, gray; and
the appendix, if separately printed, white. In the event the
supreme court grants a petition for review of a decision of the
court of appeals, the covers of the briefs of each party shall
be the same color as the cover of that party's briefs filed
in the court of appeals.
SECTION 809.19(10) of the statutes is created to read:
809.19(10) Citation of Supplemental Authorities. If pertinent
authorities decided after briefing come to the attention of a
party or a nonparty under sub. (7) or a guardian ad litem under
sub. (8m) after the party's or nonparty's or guardian
ad litem's brief has been filed, or after oral argument
but before decision, the party or nonparty or guardian ad litem
may promptly advise the clerk of the court, by letter, and send
a copy of that letter to all counsel of record. If the new authority
is a decision of the Wisconsin Court of Appeals, the authority
is considered decided for purposes of this subsection on the
date of an order for publication issued under s. 809.23(2). The
letter shall do the following:
(a) set forth the citations for the authority,
(b) identify the page of the brief or the point that was argued
orally to which the citations pertain,
(c) for each authority that is cited, state in a single brief
sentence the proposition that the authority supports.
SECTION 809.19(11) of the statutes is created to read:
809.19(11) Response to supplemental authorities. A response
to the letter under sub.(10) may be filed within 11 days after
service of that letter. The response shall state in a single
brief sentence the reason why each authority does not support
the stated proposition, unless the proposition is not disputed.
COMMENT to Section 809.19: Sub. (1)(h) is new and requires
a signature on briefs. Sub. (1)(i) is new and makes identification
of the parties consistent and less confusing. Sub. (3) was revised
to address a situation in which the appellant's brief is
served on the respondent, but has not yet been accepted for filing
by the court. If the respondent undertakes to prepare its brief
within 30 days after service of the appellant's brief and
the appellant's brief has not yet been accepted for filing,
the respondent will have wasted time and energy if the appellant's
brief ultimately is rejected. The last sentence of sub. (4) was
added to require record references and a conclusion in a reply
brief. Subsection (6) was rewritten to clarify briefing requirements
in cross-appeals. The time limit in sub. (7)(c) was changed from
10 to 14 days. Please see the comment to s. 808.07(6) concerning
time limits. The reference to s. 809.43 was deleted in sub. (8)(a)1.
because the greater number of copies is needed when a single-judge
appeal reaches the supreme court. Subsection (8)(a)3. was amended
to apply to pro se parties only. Subsection (8)(b)4. was amended
to allow "velobinding" of briefs, a process commonly
accepted but not authorized by statute. The third sentence in
sub. (9) is new and requires parties to use the complete case
caption. Parties shall not abridge the caption by use of "et
al" or similar phrases. Subsections (10) and (11) are new
and establish a procedure for supplementing briefs or oral argument
with pertinent authorities that subsequently come to the attention
of a party or an amicus curiae, who is denoted a "nonparty"
under sub. (7), or a guardian ad litem under sub. (8m). This
proposal is based upon Federal Rule of Appellate Procedure 280(j)
and Circuit Rule 28(j) of the Seventh Circuit Court of Appeals.
SECTION 809.24 of the statutes is repealed and recreated to
read:
809.24. Rule (Reconsideration). (1) A party may file a motion
for reconsideration within 20 days of the date of a decision
or order, except as provided in sub. (4). The motion must state
with particularity the points of law or fact alleged to be erroneously
decided in the decision or order, and must include supporting
argument. No separate memorandum in support of the motion is
permitted unless subsequently ordered by the court. No response
to the motion is permitted unless ordered by the court, and,
unless a response is ordered, no amended decision or order will
be issued in response to the motion. The motion and any response
shall not exceed 5 pages if a monospaced font is used or 1,100
words if a proportional serif font is used.
(2) In response to a motion for reconsideration, the court
will issue an amended decision or order, or an order denying
the motion.
(3) Nothing in this section prohibits the court from reconsidering
a decision or order on its own motion at any time prior to remittitur
if no petition for review is filed pursuant to s. 809.62 or,
if a petition for review is filed, within 30 days of the filing
of the petition for review.
(4) No motion for reconsideration of a court of appeals decision
or order issued pursuant to s. 809.105 is permitted.
COMMENT to 809.24: Section 809.24 is amended to conform
with the court of appeals' internal operating procedures,
and to provide an orderly procedure for reconsideration. Reconsideration
is intended for those rare cases in which the court of appeals
overlooks or misapprehends relevant and material facts or law,
not for cases in which a party simply disagrees with the court
of appeals. Presentation of new facts or alternate legal arguments
is not appropriate on reconsideration. Reconsideration is not
permitted in s. 809.105 proceedings related to parental consent
prior to performance of abortion due to the abbreviated appellate
time periods provided in s. 809.105. Filing a motion for reconsideration
may affect the time periods for filing or responding to a petition
for review. See s. 809.62(8). Service requirements of s. 801.14(4)
apply.
SECTION 809.25(1)(c) of the statutes is amended to read:
809.25(1)(c) A party seeking to recover costs in the court shall
file a statement of the costs within 14 days of the filing of
the decision of the court. An opposing party may file within
seven 11 days of the service of the statement a motion
objecting to the statement of costs.
SECTION 809.25(3)(a) of the statutes is amended to read:
809.25(3) (a) If an appeal or cross-appeal, or any part
of such appeal or cross-appeal, is found to be frivolous
by the court, the court shall award to the successful party costs,
fees and reasonable attorney fees under this section. A motion
for costs, fees and attorney fees under this subsection shall
be filed no later than the filing of the respondent's brief
or, if a cross-appeal is filed, no later than the filing of
the cross-respondent's brief. This subsection does not
apply to appeals or cross-appeals under ss. 809.30, 809.107,
and 974.05.
COMMENT to Section 809.25: The 7-day time limit in sub.
(1)(c) was changed to 11 days. Please see the comment to s. 808.07(6)
concerning time limits. Subsection (3)(a) has been revised to
allow any part of an appeal to be found frivolous. This revision
changes current law; see Nichols v. Bennett, 190 Wis.
2d 360, 526 N.W.2d 831 (Ct. App. 1994).
SECTION 809.26 of the statutes is amended to read:
809.26 Rule (Remittitur). (1) The clerk of the court shall
transmit to the trial circuit court the judgment and opinion
decision or order of the court and the record in the case
filed pursuant to s. 809.15 within 31 days after the filing
of the decision or order of the court. If a petition for
review is filed pursuant to s. 809.62, the transmittal is stayed
until the supreme court rules on the petition. If a motion
for reconsideration is filed under s. 809.24, the transmittal
is stayed until the court files an order denying the motion,
or files an amended decision or order, and the subsequent expiration
of any period for filing a petition for review.
SECTION 809.30(1)(a) and (b) of the statutes are amended to
read:
809.30(1)(a) "Postconviction relief" means, in a
felony or misdemeanor case, an appeal or a motion for postconviction
relief other than a motion under s. 973.19 or 974.06. In a ch.
48, 51, 55 or, 938 or 980 case, or a s. 971.17 proceeding,
other than a termination of parental rights case under s. 48.43,
it "postconviction relief" means an appeal or
a motion for reconsideration by the trial court of its final
judgment or order; in such cases a notice of intent to pursue
such relief or a motion for such relief need not be styled as
seeking "postconviction" relief.
(b) "Sentencing" means, in a felony or misdemeanor
case, the imposition of a sentence, fine or probation. In a ch.
48, 51, 55 or, 938 or 980 case, or a s. 971.17 proceeding,
other than a termination of parental rights case under s. 48.43,
it "sentencing" means the entry of the trial
court's final judgment or order.
SECTIONS 809.30(2)(a)(title), (d) (title), (fm) (title), (j)
(title) and (L) (title) of the statutes are created to read:
809.30(2)(a) (title) Appeal procedure; counsel to continue.
(d) (title) Indigency redetermination.
(fm) (title) Transcript order in chapters 48 and 938 proceedings.
(j) (title) Appeal from judgment and order.
(L) (title) Appeals under section 974.06.
SECTIONS 809.30(2)(b), (c), (e), (f), (g), (h), (i) and (k)
of the statutes are amended to read:
809.30(2)(b) (title) Notice of intent to pursue postconviction
relief. Within 20 days of the date of sentencing, the
defendant shall file in the trial circuit court and serve
on the district attorney a notice of intent to pursue postconviction
relief. The notice shall include the following: 1. The case name
and court caption number. 2. An identification of the
judgment or order from which the defendant intends to seek postconviction
relief and the date it was granted or entered. 3. The name and
address of the defendant and the defendant's trial counsel.
4. Whether defendant's trial counsel was appointed by the
state public defender and if so, whether the defendant's
financial circumstances have materially improved since the date
the defendant's indigency was determined. 5. Whether the
defendant requests the state public defender to appoint counsel
for purposes of postconviction relief. 6. Whether a defendant
who does not request the state public defender to appoint counsel
will represent himself or herself or will be represented by retained
counsel. If the defendant has retained counsel, counsel's
name and address shall be included.
(c) (title) Clerk to send materials. Within
5 days after a notice under par. (b) is filed, the clerk of
the circuit court shall:
1. If the defendant requests representation by the state public
defender for purposes of postconviction relief, send to the state
public defender's appellate intake office a copy of the
notice that shows the date it was filed or entered, a
copy of the judgment or order specified in the notice that
shows the date it was filed or entered, a list of the court
reporters for each proceeding in the action in which the judgment
or order was entered and a list of those proceedings in which
a transcript has been filed in the court record at the request
of trial counsel with the clerk of the circuit court.
2. If the defendant does not request representation by the state
public defender, send or furnish to the defendant, if the defendant
is appearing without counsel, or to the defendant's attorney
if one has been retained, a copy of the judgment or order specified
in the notice that shows the date it was filed or entered,
a list of the court reporters for each proceeding in the action
in which the judgment or order was entered and a list of those
proceedings in which a transcript has been filed in the court
record at the request of trial counsel with the clerk of the
circuit court.
(e) (title) State public defender appointment of counsel;
transcript and court record request. Within 30 days after
filing of a notice under par. (b) requesting representation by
the state public defender for purposes of postconviction relief
the clerk of the circuit court sends the materials to the
state public defender appellate intake office under par. (c),
the state public defender shall appoint counsel for the defendant
and order request a transcript of the reporter's
notes, and a copy of the court record, except that if
the defendant's indigency must first be determined or redetermined,
the state public defender shall do so, appoint counsel and order
request transcripts and a copy of the court record
within 50 days after the notice under par. (b) is filed the
clerk sends the materials to the state public defender appellate
intake office under par. (c ).
(f) (title) Defendant not represented by public defender;
transcript and court record request. A defendant who
does not request representation by the state public defender
for purposes of postconviction relief shall order request
a transcript of the reporter's notes, and may request
a copy of the court record within 30 days after filing a
notice under par. (b). A defendant who is denied representation
by the state public defender for purposes of postconviction relief
shall request a transcript of the reporter's notes and may
request a copy of the court record within 90 days after filing
a notice under par. (b).
(g) (title) Filing and service of transcript and court
record.
1. The clerk of the circuit court shall serve a copy of
the court record on the defendant within 60 days after receipt
of the request for the court record.
2. The court reporter shall file the transcript with
the trial circuit court and serve a copy of the transcript
on the defendant within 60 days of the ordering of request
for the transcript. Within 20 days of the ordering of request
for a transcript of postconviction proceedings brought under
sub. (2)(h), the court reporter shall file the original with
the trial circuit court and serve a copy of that transcript
on the defendant. The reporter may seek an extension under s.
809.16(4)11(7) for filing and serving the transcript.
(h) (title) Notice of appeal or postconviction motion.
The defendant shall file in the circuit court and serve on
the district attorney a notice of appeal or motion seeking
postconviction relief within 60 days of the later of the
service of the transcript or court record. A rule 809.30
postconviction motion shall not be accompanied by a notice of
motion, and is made when filed.
(i) (title) Order determining postconviction motion.
Unless an extension is requested by the defendant or circuit
court and granted by the court, the trial circuit
court shall determine by an order the defendant's motion
for postconviction relief within 60 days of its filing or the
motion is considered to be denied and the clerk of the trial
circuit court shall immediately enter an order denying
the motion.
(k) (title) Transmittal of record. The Except
as otherwise provided in s. 809.14(3) and 809.15(4)(b) and (c),
the clerk of the trial circuit court shall transmit
the record to the court as soon as prepared but in no event more
than 40 days after the filing of the notice of appeal by the
defendant. Subsequent proceedings in the appeal are governed
by the procedures for civil appeals.
SECTION 809.30(3) of the statutes is amended to read:
(3) (title) Appeals by state or other party; Appointment
of counsel. In a felony case in which the state of Wisconsin,
the representative of the public or any other party appeals and
the defendant or subject individual is a child or claims or appears
to be indigent, the court shall refer the person to the state
public defender for the determination of indigency and the appointment
of legal counsel under ch. 977.
SECTION 809.30(4) of the statutes is created to read:
(4) Motion to withdraw as appointed counsel for defendant.
(a) If counsel has been appointed for the defendant under
ch. 977 and seeks to withdraw as appointed counsel, counsel shall
serve a motion to withdraw upon the defendant and upon the Appellate
Division Intake Unit in the Madison appellate office of the state
public defender. If the motion is filed before the notice of
appeal is filed, the motion shall be filed in the trial court.
If the motion is filed after a notice of appeal has been filed,
the motion shall be filed in the court of appeals.
(b) Within 20 days after receipt of the motion under par.
(a), the state public defender shall determine whether successor
counsel will be appointed for the defendant and shall notify
the court in which the motion was filed of its determination.
(c) Before determining the motion to withdraw, the court shall
consider the state public defender's response under par.
(b) and whether the defendant waives the right to counsel.
(d) When the motion to withdraw is filed in the trial court,
appointed counsel shall prepare and serve a copy of the order
determining counsel's motion to withdraw upon the defendant
and the Appellate Division Intake Unit in the Madison appellate
office of the state public defender within 10 days after the
court's determination.
COMMENT to Section 809.30: Subtitles have been added to
help counsel locate rules. Sub. (1) was revised to include ch.
980 and s. 971.17 proceedings. Subsection (2)(e) was revised
to amend the time for appointing appellate counsel and to clarify
that a defendant represented by appointed counsel must request
a copy of the court record from the circuit court. Subsection
(2)(f) was amended to clarify that a defendant not represented
by the state public defender may request a copy of the court
record from the trial court. The second sentence of sub. (2)(f)
is new and sets a time limit for a defendant who has unsuccessfully
sought public defender representation under sub. (2)(e) to request
the transcripts and court record. Subsection (2)(g) was amended
to require the circuit court clerk to send the court record to
the defendant within 60 days after receipt of the request. Subsection
(2)(h) was revised to require the defendant to file the notice
of appeal either within 60 days after service of the last transcript
or court record, whichever occurs later. The second sentence
of sub. (2)(h) is new and specifies that a notice of motion shall
not be filed with a s. 809.30 postconviction motion. If the trial
court grants a hearing on the motion, the trial court will notify
the parties of the date.
The first clause of sub. (2)(i) is new and specifies that
an extension may be granted by the court of appeals.
Subsection (3) was revised to clarify that it applies in
all appeals utilizing s. 809.30, including cases under chs. 48,
51, 55, 938, 980, and proceedings under s. 971.17.
Subsection (4) is new and establishes a procedure for making
and determining motions to withdraw by appointed counsel. This
rule does not change existing law concerning when a withdrawal
motion is necessary. See e.g. State ex rel. Flores v. State,
183 Wis. 2d 587, 622-24, 516 N.W.2d 362 (1994).
Often motions to withdraw are the result of a disagreement
between appointed counsel and the defendant, sometimes inaccurately
called a "conflict," about the existence of a meritorious
issue for appeal, or about the manner in which any such issue
should be raised. It is counsel's duty to decide what issues
in a case have merit for an appeal. Jones v. Barnes, 463 U.S.
745 (1983). Post-conviction counsel is entitled to exercise reasonable
professional judgment in winnowing out even arguable issues in
favor of others perceived to be stronger. Id. Counsel's
failure to raise an issue on direct appeal may prevent the defendant
from raising it in a subsequent s. 974.06 collateral review proceeding,
absent "sufficient reason." State v. Escalona-Naranjo,
185 Wis. 2d 168, 517 N.W.2d 157 (1994).
The rules of appellate procedure require that a defendant
choose whether to proceed with the assistance of appointed counsel
or proceed pro se. State v. Redmond, 203 Wis. d 13, 552
N.W.2d 115 (Ct. App. 1996). A defendant has neither the right
to appointed counsel of choice nor the right to insist that a
particular issue be raised. Oimen v. McCaughtry, 130 F.2d
809 (7th Cir. 1997). "The defendant may terminate appellate
counsel's representation and proceed pro se or the defendant
may allow post-conviction relief to continue based on counsel's
brief and then seek relief on the grounds of ineffective assistance
of appellate counsel." State v. Debra A.E., 188 Wis.
2d 111, 137-39, 523 N.W.2d 727 (1994). On ineffective assistance
of appellate counsel claims, the court will determine whether
counsel's choice of issues met the objective standard of
reasonableness. Gray v. Greer, 778 F.2d 350 (7th Cir.
1985).
The SPD will not appoint successor counsel where a defendant
disagrees with the legal conclusions of appointed counsel or
when a defendant wants a second opinion as to the merits of an
appeal. To do so would unduly delay the disposition of the appeal,
and would be contrary to the interests of justice. Wis. Admin.
Code § PD 2.04.
If a defendant elects to waive counsel and proceed pro
se, the court must find that the defendant has been provided
with clear warnings with respect to forfeiture of the right to
counsel and the dangers of self-representation. State v.
Cummings, 199 Wis. 2d 721, 546 N.W.2d 406 (1996).
SECTION 809.31(5) of the statutes is repealed and recreated
to read:
(5) The defendant or the state may seek review of the order
of the trial court by filing a motion with the court of appeals
pursuant to s. 809.14. The party seeking review must attach to
its motion a copy of the judgment of conviction or other final
judgment or order, the trial court's order regarding release
pending appeal, the trial court's statement of reasons for
the decision regarding release pending appeal, and the transcript
of any release proceedings in the trial court or a statement
explaining why no transcript is available. The motion shall be
filed within 14 days of the entry of the trial court order. The
opposing party may file a response within 14 days of the filing
of the motion.
COMMENT to Section 809.31: Current rules require a party
seeking review of a release decision to file a petition for discretionary
review, and pay a separate filing fee, generating a separate
appeal. The new motion procedure provides a more efficient mechanism
for appellants seeking release pending appeal. No change in the
substantive standards governing release decisions is intended.
See State v. Whitty, 86 Wis. 2d 380, 272 N.W.2d 843 (1978);
State v. Salmon, 163 Wis. 2d 369, 471 N.W.2d 286 (Ct.
App. 1991).
SECTION 809.32(1) and (2) of the statutes are amended to read:
809.32 Rule (No merit reports). (1)(a) (title) No
merit report, response and supplemental no merit report.
If an attorney appointed under is of the opinion s. 809.30(2)(e)
or ch. 977 concludes that further appellate proceedings a
direct appeal on behalf of the defendant would be frivolous
and without any arguable merit within the meaning of Anders
v. California, 386 U.S. 738 (1967), and the defendant
requests that a no merit report be filed or declines to consent
to have the attorney close the file without further representation
by the attorney, the attorney shall file with the court of
appeals 3 copies of a brief no merit report in which is stated.
The no merit report shall identify anything in the record
that might arguably support the appeal and a discussion of discuss
the reasons why the each identified issue lacks merit.
Prior to the filing of a no merit report, the attorney shall
discuss with the defendant all potential issues identified by
the attorney and the defendant, and the merit of an appeal on
these issues. The attorney shall inform the defendant that the
defendant has three options: (1) to have the attorney file a
no merit report, (2) to have the attorney close the file without
an appeal, and (3) to proceed pro se or with counsel retained
at the defendant's expense. The attorney shall inform the
defendant that a no merit report will be filed if the defendant
either requests a no merit report or does not consent to have
the attorney close the file without further representation by
the attorney. The attorney shall also inform the defendant that
the attorney may 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. The attorney shall serve
a copy of the brief no merit report on the defendant and shall
file a statement in the court of appeals that service has been
made upon the defendant. After a no merit report has been
filed and upon request of the defendant, the attorney shall transmit
to the defendant a copy of the transcript and court record.
The defendant may file a response to the brief no merit report
within 30 days after service. If the defendant files a response,
the clerk shall, within 5 days after the filing of the response,
send a copy of the response to the attorney who filed the no
merit report. If the attorney is aware of facts outside the record
that rebut allegations made in the defendant's response,
the attorney may file, within 30 days after service of the defendant's
response, a supplemental no merit report and an affidavit(s)
including facts outside the record. The supplemental report and
affidavit(s) shall be served on the defendant, and the attorney
shall file a statement in the court that service has been made
upon the defendant.
(b) Certification by attorney. The attorney shall append
to the no merit report a signed certification that the attorney
has complied with the client counseling and notification requirements
of par. (a). The certification shall be in the following form:
I hereby certify that I have discussed with the defendant
all potential issues identified by me and by the defendant and
the merit of an appeal on these issues, and have informed the
defendant that the defendant must choose one of the following
three options: (1) to have me file a no merit report, (2) to
have me close the file without an appeal, or (3) to proceed pro
se or with counsel retained at the defendant's expense.
I have informed the defendant that a no merit report will be
filed if the defendant either requests a no merit report or does
not consent to have me close the file without further representation.
I have also informed the defendant that I may file a supplemental
no merit report and affidavit(s) containing facts outside the
record, possibly including confidential information, to rebut
allegations made in the defendant's response to the no merit
report.
Signed: ...
Signature
(2) (title) Notice of appeal, statement on transcript,
service of copies. The attorney also shall file in the trial
circuit court a notice of appeal of the judgment of conviction
and of any order denying a postconviction motion. The notice
of appeal shall be identified as a no merit notice of appeal
and shall state the date on which the no merit report is due
and whether the due date is calculated under par. (a) or (b).
The clerk of the trial circuit court shall transmit the
record in the case to the court pursuant to s. 809.15. The
attorney also shall file a statement on transcript complying
with the requirements of s. 809.11(4), except that copies of
the transcript need not be provided to other parties. All papers
filed with the court under this subsection, except the transcript,
shall be served on the state in accordance with s. 809.80(2)(b).
The no merit brief report, and notice of appeal and
statement on transcript must be filed within whichever
of the following is later:
(a) 180 One hundred and eighty days of after
the service upon the defendant of the transcript and court
record requested under s. 809.30(2)(g)(e).
(b) Sixty days after the entry of the order determining
a postconviction motion.
SECTION 809.32(3) (title) of the statutes is created to read:
809.32(3) (title) Decision on no merit report.
SECTION 809.32(4) of the statutes is amended to read:
809.32(4) (title) No merit petition for review. 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 defendant of
the reasons for this opinion and that the defendant has the right
to file a petition for review. If requested by the defendant,
the attorney shall file a petition satisfying the requirements
of s. 809.62(2)(d) and (f) and the defendant shall file a supplemental
petition satisfying the requirements of s. 809.62(2)(a), (b),
(c) and (e). Except as provided in s. 809.62(8), the petition
and supplemental petition shall both be filed within 30 days
of the date of the decision or order of the court of appeals.
Except as provided in s. 809.62(8), an opposing party
may file a response to the petition and supplemental petition
within 10 14 days of after the service of the supplemental
petition.
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