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SECTION 809.19(4) of the statutes is repealed and recreated to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SECTION 809.19(6) of the statutes is repealed and recreated to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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