Chapter 809

809.25 Annotation Asking the court of appeals to reweigh the testimony of witnesses and to reach a conclusion regarding credibility contrary to that reached by a trial judge was frivolous. Lessor v. Wangelin, 221 Wis. 2d 659, 586 N.W.2d 1 (Ct. App. 1998), 97-2974.

809.25 Annotation A frivolous appeal filed by a non-lawyer results in the same harm as if it were filed by a lawyer. It would not be fair or logical to say that had a lawyer filed the appeal costs would have been awarded but to deny recovery because the appeal was presented by a pro se litigant. Holz v. Busy Bees Contracting, Inc., 223 Wis. 2d 598, 589 N.W.2d 633 (Ct. App. 1998), 98-1076.

809.25 Annotation While only an appellate court can find an appeal frivolous, the case may be remanded to the circuit court to determine the amount of attorney fees to be awarded. Lucareli v. Vilas County, 2000 WI App 157, 238 Wis. 2d 84, 616 N.W.2d 153, 99-2827.

809.25 Annotation In addition to an order to pay the respondent’s costs, fees, and attorney fees, an appellant whose appeal was found frivolous after the appellant’s brief was stricken for being offensive, scurrilous, and inappropriate was barred from filing any future proceedings in the court of appeals and the circuit court arising from, relating to, or involving the respondents. Puchner v. Hepperla, 2001 WI App 50, 241 Wis. 2d 545, 625 N.W.2d 609, 98-2853.

809.25 Annotation The circuit court’s award of fees to the respondent due to the appellant’s overlitigating by filing multiple frivolous issues on appeal, in violation of the circuit court’s order, was not prevented by a court of appeals finding that no fees could be awarded under sub. (3). Zhang v. Yu, 2001 WI App 267, 248 Wis. 2d 913, 637 N.W.2d 754, 00-3237.

809.25 Annotation In order to be awarded costs, fees, and reasonable attorney fees, the moving party must prove that the entire appeal presented is frivolous. If an argument advanced has arguable merit, then the appeal is not frivolous. Baumeister v. Automated Products, Inc., 2004 WI 148, 277 Wis. 2d 21, 690 N.W.2d 1, 02-1003. But see Thompson v. Ouellette, 2023 WI App 7, 406 Wis. 2d 99, 986 N.W.2d 338, 21-1087.

809.25 Annotation The trial court cannot make a finding that an appeal is frivolous and is without authority to order the payment of frivolous costs and fees associated with an appeal. Morters v. Aiken & Scoptur, S.C., 2006 WI App 46, 289 Wis. 2d 833, 712 N.W.2d 71, 05-0703.

809.25 Annotation Discussing the interplay between sub. (3) and s. 895.044 (5), two parallel statutes that do not cross reference each other and that both purport to govern how appellate courts should direct the payment of attorney fees for frivolous appeals. Thompson v. Ouellette, 2023 WI App 7, 406 Wis. 2d 99, 986 N.W.2d 338, 21-1087.

809.26 809.26 Rule (Remittitur).

809.26(1) (1) The clerk of the court of appeals shall transmit to the circuit court the judgment and decision or order of the court and the record in the case filed pursuant to s. 809.15 31 days after the filing of the decision or order of the court, or as soon thereafter as practicable. 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.

809.26(2) (2) If the supreme court grants a petition for review of a decision of the court of appeals, the supreme court upon filing its decision shall transmit to the trial court the judgment and opinion of the supreme court and the complete record in the case unless the case is remanded to the court of appeals with specific instructions.

809.26 History History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 92 Wis. 2d xiii (1979); 1981 c. 390 s. 252; Sup. Ct. Order No. 00-02, 2001 WI 39, 242 Wis. 2d xxvii; Sup. Ct. Order No. 02-01, 2002 WI 120, 255 Wis. 2d xiii.

809.26 Note Judicial Council Committee’s Note, 1978: Former s. 817.35 is embodied in this section except that the time for issuance of the remittitur is reduced from 60 to 31 days. [Re Order effective July 1, 1978]

809.26 Note Judicial Council Committee’s Note, 1979: This section is amended by creating a sub. (2) that specifically authorizes the Supreme Court after filing its decision in the review of a decision from the Court of Appeals to remit directly to the trial court the complete record of the case without the necessity of returning the case to the Court of Appeals for remittitur to the trial court. The only exception to this new procedure will occur when the Supreme Court remands a case to the Court of Appeals with some specific instructions that the Court of Appeals is required to follow. [Re Order effective Jan. 1, 1980].

809.26 Note Judicial Council Note, 2002: Subsection (1) is amended to permit the clerk of courts some flexibility in the 31-day remittitur deadline to accommodate workload fluctuation. By Supreme Court Order 00-02, 2001 WI 39, “within” was added immediately preceding “31 days.” The Judicial Council had not intended to suggest changing the substance of existing time parameters for remittitur, when it petitioned for that amendment, but merely proposed the additional word for ease of reading. Since that amendment, it has been argued that the addition of “within” permits remittitur prior to the expiration of the 31-day period. However, the 31-day period coincides with the time limit for filing a petition for review. Absent stipulation among the parties that no petition for review will be filed, remittitur should not occur before the expiration of the petition for review deadline. [Re Order No. 02-01 effective January 1, 2003]

809.26 Annotation An appellate court’s jurisdiction ceases upon remittitur in the absence of inadvertence, fraud, or void judgment. The inadvertence exception applies to the act of remitting the record itself, which must be inadvertently done. State ex rel. Fuentes v. Court of Appeals, 225 Wis. 2d 446, 593 N.W.2d 48 (1999), 98-1534.

subch. III of ch. 809 SUBCHAPTER III

APPEAL PROCEDURE IN COURT OF APPEALS
IN S. 971.17 PROCEEDINGS AND IN CRIMINAL
AND CH. 48, 51, 55, 938, AND 980 CASES

809.30 809.30 Rule (Appeals in s. 971.17 proceedings and in criminal, ch. 48, 51, 55, 938, and 980 cases).

809.30(1) (1) Definitions. In this subchapter:

809.30(1)(a) (a) “Final adjudication” means the entry of a final judgment or order by the circuit court in a s. 971.17 proceeding, in a criminal case, or in a ch. 48, 51, 55, 938, or 980 case, other than a termination of parental rights case under s. 48.43, a guardianship proceeding under s. 48.9795, or a parental consent to abortion case under s. 48.375 (7).

809.30(1)(b) (b) “Person” means any of the following:

809.30(1)(b)1. 1. A defendant seeking postconviction relief in a criminal case.

809.30(1)(b)2. 2. A party, other than the state, seeking postdisposition relief in a case under ch. 48, other than a termination of parental rights case under s. 48.43, a guardianship proceeding under s. 48.9795, or a parental consent to abortion case under s. 48.375 (7).

809.30(1)(b)3. 3. A party, other than the state, seeking postdisposition relief in a case under ch. 938.

809.30(1)(b)4. 4. A subject individual or ward seeking postdisposition relief in a s. 971.17 proceeding or a case under ch. 51, 55, or 980.

809.30(1)(b)5. 5. Any other person who may appeal under ss. 51.13 (5), 51.20 (15), or 55.20.

809.30(1)(c) (c) “Postconviction relief” means an appeal or a motion for postconviction relief in a criminal case, other than an appeal, motion, or petition under ss. 302.113 (7m) or (9g), 973.19, 973.195, 973.198, 974.06, or 974.07 (2). In a ch. 980 case, the term means an appeal or a motion for postcommitment relief under s. 980.038 (4).

809.30(1)(d) (d) “Postdisposition relief” means an appeal or a motion for relief under this subchapter from a circuit court’s final adjudication.

809.30(1)(e) (e) “Prosecutor” means a district attorney, corporation counsel, or other attorney authorized by law to represent the state in a criminal case, a proceeding under s. 971.17, or a case under ch. 48, 51, 55, 938, or 980.

809.30(1)(f) (f) “Sentencing” means the imposition of a sentence, a fine, or probation in a criminal case. In a ch. 980 case, the term means the entry of an order under s. 980.06.

809.30(2) (2) Appeal; postconviction or postdisposition motion.

809.30(2)(a) (a) Appeal procedure; counsel to continue. A person seeking postconviction relief in a criminal case; a person seeking postdisposition relief in a case under ch. 48 other than a termination of parental rights case under s. 48.43, a guardianship proceeding under s. 48.9795, or a parental consent to abortion case under s. 48.375 (7); or a person seeking postdisposition relief in a s. 971.17 proceeding or in a case under ch. 51, 55, 938, or 980 shall comply with this section. Counsel representing the person at sentencing or at the time of the final adjudication shall continue representation by filing a notice under par. (b) if the person desires to pursue postconviction or postdisposition relief unless counsel is discharged by the person or allowed to withdraw by the circuit court before the notice must be filed.

809.30(2)(b) (b) Notice of intent to pursue postconviction or postdisposition relief. Within 20 days after the date of sentencing or final adjudication, the person shall file in circuit court and serve on the prosecutor and any other party a notice of intent to pursue postconviction or postdisposition relief. If the record discloses that sentencing or final adjudication occurred after the notice of intent was filed, the notice shall be treated as filed after sentencing or final adjudication on the day of the sentencing or final adjudication. The notice shall include all of the following:

809.30(2)(b)1. 1. The case name and number.

809.30(2)(b)2. 2. An identification of the judgment or order from which the person intends to seek postconviction or postdisposition relief and the date on which the judgment or order was entered.

809.30(2)(b)3. 3. The name and address of the person and his or her trial counsel.

809.30(2)(b)4. 4. Whether the person’s trial counsel was appointed by the state public defender and, if so, whether the person’s financial circumstances have materially improved since the date on which his or her indigency was determined.

809.30(2)(b)5. 5. Whether the person requests the state public defender to appoint counsel for purposes of postconviction or postdisposition relief.

809.30(2)(b)6. 6. Whether a person 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 person has retained counsel to pursue postconviction or postdisposition relief, counsel’s name and address shall be included.

809.30(2)(c) (c) Clerk to send materials. Within 5 days after a notice under par. (b) is filed, the clerk of circuit court shall:

809.30(2)(c)1. 1. If the person requests representation by the state public defender for purposes of postconviction or postdisposition relief, send to the state public defender’s appellate intake office a copy of the notice that shows the date on which it was filed or entered, a copy of the judgment or order specified in the notice that shows the date on which 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 with the clerk of circuit court.

809.30(2)(c)2. 2. If the person does not request representation by the state public defender, send or furnish to the person, if appearing without counsel, or to the person’s attorney if one has been retained, a copy of the judgment or order specified in the notice that shows the date on which 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 with the clerk of circuit court.

809.30(2)(d) (d) Indigency redetermination. Except as provided in this paragraph, whenever a person whose trial counsel is appointed by the state public defender files a notice under par. (b) requesting public defender representation for purposes of postconviction or postdisposition relief, the prosecutor may, within 5 days after the notice is served and filed, file in the circuit court and serve upon the state public defender a request that the person’s indigency be redetermined before counsel is appointed or transcripts are requested. This paragraph does not apply to a child who is entitled to be represented by counsel under s. 48.23 or 938.23 or a person who is entitled to be represented by counsel under s. 51.60 (1), 55.105, or 980.03 (2) (a).

809.30(2)(e) (e) State public defender appointment of counsel; transcript and circuit court case record request. Within 30 days after the state public defender appellate intake office receives the materials from the clerk of circuit court under par. (c), the state public defender shall appoint counsel for the person and request a transcript of the court reporter’s verbatim record and a copy of the circuit court case record, except that if the person’s indigency must first be determined or redetermined the state public defender shall do so, appoint counsel, and request transcripts and a copy of the circuit court case record within 50 days after the state public defender appellate intake office receives the material from the clerk of circuit court under par. (c).

809.30(2)(f) (f) Person not represented by public defender; transcript and circuit court case record request. A person who does not request representation by the state public defender for purposes of postconviction or postdisposition relief shall request a transcript of the court reporter’s verbatim record, and may request a copy of the circuit court case record, within 30 days after filing a notice under par. (b). A person who is denied representation by the state public defender for purposes of postconviction or postdisposition relief shall request a transcript of the court reporter’s verbatim record, and may request a copy of the circuit court case record, within 90 days after filing a notice under par. (b).

809.30(2)(fm) (fm) Transcript and circuit court case record request in chs. 48 and 938 proceedings. A child or juvenile who has filed a notice of intent to pursue relief from a judgment or order entered in a ch. 48 or 938 proceeding shall be furnished at no cost a transcript of the proceedings or as much of the transcript as is requested, and may request a copy of the circuit court case record. To obtain the transcript and circuit court case record at no cost, an affidavit must be filed stating that the person who is legally responsible for the child’s or juvenile’s care and support is financially unable or unwilling to purchase the transcript and a copy of the circuit court case record.

809.30(2)(g) (g) Filing and service of transcript and circuit court case record.

809.30(2)(g)1. 1. The clerk of circuit court shall serve a copy of the circuit court case record on the person within 60 days after receipt of the request for the circuit court case record.

809.30(2)(g)2. 2. The court reporter shall file the transcript with the circuit court and serve a copy of the transcript on the person within 60 days of the request for the transcript. Within 20 days after the request for a transcript of postconviction or postdisposition proceedings brought under sub. (2) (h), the court reporter shall file the original with the circuit court and serve a copy of that transcript on the person. The reporter may seek an extension under s. 809.11 (7) for filing and serving the transcript.

809.30(2)(h) (h) Notice of appeal, postconviction or postdisposition motion. The person shall file in circuit court and serve on the prosecutor and any other party a notice of appeal or motion seeking postconviction or postdisposition relief within 60 days after the later of the service of the transcript or circuit court case record. The person shall file a motion for postconviction or postdisposition relief before a notice of appeal is filed unless the grounds for seeking relief are sufficiency of the evidence or issues previously raised. A postconviction or postdisposition motion under this section may not be accompanied by a notice of motion and is made when filed. A notice of appeal filed under this section shall conform to the requirements set forth in s. 809.10. The appeal shall be initiated and docketed in accordance with ss. 809.10 and 809.11.

809.30(2)(i) (i) Order determining postconviction or postdisposition motion. Unless an extension is requested by a party or the circuit court and granted by the court of appeals, the circuit court shall determine by an order the person’s motion for postconviction or postdisposition relief within 60 days after the filing of the motion or the motion is considered to be denied and the clerk of circuit court shall immediately enter an order denying the motion.

809.30(2)(j) (j) Appeal from judgment and order. The person shall file in circuit court and serve on the prosecutor and any other party a notice of appeal from the judgment of conviction and sentence or final adjudication and, if necessary, from the order of the circuit court on the motion for postconviction or postdisposition relief within 20 days of the entry of the order on the postconviction or postdisposition motion. A notice of appeal filed under this section shall conform to the requirements set forth in s. 809.10. The appeal shall be initiated and docketed in accordance with ss. 809.10 and 809.11. Appeals in cases under chs. 48, 51, 55, and 938 are subject to the docketing statement requirements of s. 809.10 (1) (d) and may be eligible for the expedited appeals program in the discretion of the court.

809.30(2)(k) (k) Transmittal of record. Except as otherwise provided in ss. 809.14 (3) and 809.15 (4) (b) and (c), the clerk of circuit court shall transmit the record on appeal to the court of appeals as soon as prepared but in no event more than 40 days after the filing of the notice of appeal. Subsequent proceedings in the appeal are governed by the procedures for civil appeals.

809.30(2)(L) (L) Appeals under s. 974.06 or 974.07. An appeal under s. 974.06 or 974.07 is governed by the procedures for civil appeals.

809.30(3) (3) Appeals by state or other party; appointment of counsel. In a case in which the state of Wisconsin, the representative of the public, any other party, or any person who may appeal under s. 51.13 (5), 51.20 (15), or 55.20 appeals and the person who is the subject of the case or proceeding is a child or claims to be indigent, the court shall refer the person who is the subject of the case or proceeding to the state public defender for the determination of indigency and the appointment of legal counsel under ch. 977.

809.30(4) (4) Motion to withdraw as appointed counsel.

809.30(4)(a) (a) If postconviction, postdisposition, or appellate counsel appointed for the person under ch. 977 seeks to withdraw from the case, counsel shall serve a motion to withdraw upon the person 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 circuit court. If the motion is filed after a notice of appeal has been filed, the motion shall be filed in the court of appeals. Service of the motion to withdraw on the state public defender is not required when the motion is filed by an assistant state public defender or when a no-merit report is filed with the motion.

809.30(4)(b) (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 person and shall notify the court in which the motion was filed of the state public defender’s determination.

809.30(4)(c) (c) Before determining the motion to withdraw, the court shall consider the state public defender’s response under par. (b) and whether the person waives the right to counsel.

809.30(4)(d) (d) When the motion to withdraw is filed in circuit court, appointed counsel shall prepare and serve a copy of the order determining counsel’s motion to withdraw upon the person and the appellate division intake unit in the Madison appellate office of the state public defender within 14 days after the court’s determination.

809.30 History History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); Sup. Ct. Order, 92 Wis. 2d xiii (1979); Sup. Ct. Order, 104 Wis. 2d xi (1981); 1981 c. 390 s. 252; Sup. Ct. Order, 112 Wis. 2d xvii (1985); Sup. Ct. Order, 123 Wis. 2d xi (1985); 1985 a. 332; Sup. Ct. Order, 136 Wis. 2d xxv (1987); Sup. Ct. Order, 161 Wis. 2d xiii (1991); Sup. Ct. Order No. 93-19, 179 Wis. 2d xxiii (1994); 1993 a. 16, 395, 451; 1995 a. 77; Sup. Ct. Order No. 00-02, 2001 WI 39, 242 Wis. 2d xxvii; 2001 a. 16; Sup. Ct. Order No. 02-01, 2002 WI 120, 255 Wis. 2d xiii; 2005 a. 264, 434; 2007 a. 20; Sup. Ct. Order No. 04-08, 2008 WI 108, filed 7-30-08, eff. 1-1-09; 2009 a. 26, 28, 180, 276; 2011 a. 38; 2017 a. 184, 359; Sup. Ct. Order No. 19-01, 2019 WI 44, 386 Wis. 2d xvii; 2019 a. 109; Sup. Ct. Order No. 20-07, 2021 WI 37, 397 Wis. 2d xiii; 2021 a. 238 ss. 31, 45.

809.30 Note Judicial Council Committee’s Note, 1978: Many changes are made in prior practice in criminal cases and in protective placement, juvenile and mental commitment cases. Under the former procedure counsel, usually the State Public Defender appointed by the Supreme Court, was required to order a transcript, wait for its preparation, review it, present to the trial court by a post-trial motion any issues which the defendant desired to raise on appeal even if the issue had been presented to and decided by the court during the trial, [see State v. Charette, 51 Wis. 2d 531, 187 N.W.2d 203 (1971) and State v. Wuensch, 69 Wis. 2d 467, 230 N.W.2d 665 (1975)], and after the court ruled on the motion, appeal both the original conviction and the denial of the post-trial motion to the Supreme Court. Often a year or more elapsed between the sentencing of the defendant and the docketing of his appeal in the Supreme Court. This delay, combined with the delay in the Supreme Court caused by its backlog, often resulted in an appeal not being decided by the Supreme Court until two or three years after conviction.

809.30 Note The procedures in this section are designed to expedite the entire process by putting time limits on each step and by eliminating the necessity of each issue being presented twice to the trial court.

809.30 Note The term “postconviction relief”, as used in this Rule, includes new trial, reduction of sentence and any other type of relief which the trial court is authorized to give, other than under s. 974.06.

809.30 Note Extensions of time for taking various steps under this section can be granted by the court of appeals under Rule 809.82. [Re Order effective July 1, 1978]

809.30 Note Judicial Council Committee’s Note, 1979: Sub. (1) (h) is amended to increase from 10 to 20 days the period for a defendant to file a notice of appeal after entry of a trial court’s order denying postconviction relief. It is sometimes difficult to meet the present 10-day requirement for filing an appeal under this subsection due to the delays that may occur in the prompt delivery by mail of the order of the trial court on a motion for postconviction relief. Increasing the time period by 10 days does not unduly lengthen the appellate process for determination of an appeal on its merits. [Re Order effective Jan. 1, 1980]

809.30 Note Judicial Council Committee’s Note, 1981: Sub. (1) (e) is amended to increase from 40 to 60 days the period for the court reporter to complete and serve a copy of the transcript on the defendant and sub. (1) (f) is amended to increase from 30 to 60 days the period for the defendant to either file a notice of appeal or motion seeking postconviction relief. The previous time periods were often insufficient for preparation of the transcript and for review of the transcript and record by the defendant determining which, if any, postconviction proceedings to commence.

809.30 Note Sub. (1) (e) is clarified to establish that the original of the transcript is filed with the trial court by the court reporter whereas a copy is served by the court reporter on the defendant. Also, the transcript of postconviction proceedings must be filed and served by the court reporter within 20 days of ordering by the defendant.

809.30 Note Sub. (1) (i) is amended to provide that the clerk of the trial court shall transmit the record to the court of appeals no later than 40 days after the filing of the notice of appeal. Presently transmittal of the record is governed by Rule 809.15 (4) which allows up to 90 days from the filing of the notice of appeal.

809.30 Note The total time period from ordering the transcript to transmittal of the record to the court of appeals has not been altered by these amendments.

809.30 Note Judicial Council Committee’s Note, 1978, explained that extensions of time for taking various steps under Rule 809.30 can be granted by the court of appeals under Rule 809.82. In State v. Rembert, 99 Wis. 2d 401, 299 N.W.2d 292 (Ct. App. 1980), the court of appeals stated that its authority to extend the time periods of Rule 809.30 is to the exclusion of the trial court. The court of appeals, not the trial court, is responsible for monitoring, enforcing or extending the time periods of Rule 809.30. [Re Order effective Jan. 1, 1982]

809.30 Note Judicial Council Note, 1984: Requiring that the appellate process be initiated by filing a notice in the trial court within 20 days after sentencing is intended to:

809.30 Note Expedite the process; the information needed for a decision regarding postconviction relief is available to the defendant at sentencing and the decision can usually be made shortly thereafter.

809.30 Note Emphasize trial counsel’s duties to counsel the defendant about the decision to seek postconviction relief and to continue representation until appellate counsel is retained or appointed. SCR 20.34 (2) (d); Whitmore v. State, 56 Wis. 2d 706, 203 N.W.2d 56 (1973).

809.30 Note Create a record in the trial court showing whether the postconviction process has been timely invoked.

809.30 Note Notify the judge, clerk, court reporter and district attorney that postconviction relief is contemplated and allow the district attorney to request a redetermination of indigency in public defender cases.

809.30 Note Give the public defender the information needed to appoint counsel and order transcripts promptly, and to decide whether the defendant’s indigency must first be determined or redetermined. [Re order effective July 1, 1985]

809.30 Note Judicial Council Note, 1986: Sub. (1) is amended to clarify the application of the statute when the appeal is taken from the final judgment or order in a non-criminal case.

809.30 Annotation Sub. (2) (fm) is prior s. 48.47 (2), renumbered for more logical placement in the statutes. [Re Order eff. 7-1-87]

809.30 Note Judicial Council Note, 2001: Subtitles have been added. 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 circuit court case 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 circuit court case record from the circuit court. The second sentence of sub. (2) (f) sets a time limit for a defendant who has unsuccessfully sought public defender representation under sub. (2) (e) to request the transcripts and circuit court case record. Subsection (2) (g) was amended to require the circuit court clerk to send the circuit court case 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 the circuit court case record, whichever occurs later. The second sentence of sub. (2) (h) specifies that a notice of motion shall not be filed with a s. 809.30 postconviction motion. If the circuit court grants a hearing on the motion, the circuit court will notify the parties of the date.

809.30 Note The first clause of sub. (2) (i) specifies that an extension may be granted by the court of appeals.

809.30 Note Subsection (3) was revised to clarify that it applies in all appeals utilizing s. 809.30, including cases under chs. 48, 51, 55, and 938.

809.30 Note Subsection (4) 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).

809.30 Note 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). Postconviction 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).

809.30 Note 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. 2d 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 postconviction 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).

809.30 Note The state public defender 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 s. PD 2.04.

809.30 Note 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). [Re Order No. 00-02 effective July 1, 2001]

809.30 Note Judicial Council Note, 2002: The terminology throughout s. 809.30 is amended to clarify that persons seeking to appeal final judgments or orders in criminal, ch. 48 (child or unborn child in need of protection or services, guardianship or adoption), ch. 51 (civil commitment), ch. 55 (protective placement), and ch. 938 (delinquency or juvenile justice) cases must comply with this rule. Prior language referred to all such persons as defendants and to all appeal proceedings as “postconviction,” and was confusing to parties and practitioners.