Chapter 974

974.05 974.05 State’s appeal.

974.05(1) (1) Within the time period specified by s. 808.04 (4) and in the manner provided for civil appeals under chs. 808 and 809, an appeal may be taken by the state from any:

974.05(1)(a) (a) Final order or judgment adverse to the state, whether following a trial or a plea of guilty or no contest, if the appeal would not be prohibited by constitutional protections against double jeopardy.

974.05(1)(b) (b) Order granting postconviction relief under s. 974.02, 974.06, or 974.07.

974.05(1)(c) (c) Judgment and sentence or order of probation not authorized by law.

974.05(1)(d) (d) Order or judgment the substantive effect of which results in:

974.05(1)(d)1. 1. Quashing an arrest warrant;

974.05(1)(d)2. 2. Suppressing evidence; or

974.05(1)(d)3. 3. Suppressing a confession or admission.

974.05(2) (2) If the defendant appeals or prosecutes a writ of error, the state may move to review rulings of which it complains, as provided by s. 809.10 (2) (b).

974.05(3) (3) Permission of the trial court is not required for the state to appeal, but the district attorney shall serve notice of such appeal or of the procurement of a writ of error upon the defendant or the defendant’s attorney.

974.05 History History: 1971 c. 298; Sup. Ct. Order, 67 Wis. 2d 585, 784 (1975); 1977 c. 187; 1983 a. 219; 1991 a. 39; 1993 a. 486; 2001 a. 16.

974.05 Annotation If the state appeals from an order suppressing evidence, the defendant can ask for a review of another part of the order, although the defendant could not appeal directly. State v. Beals, 52 Wis. 2d 599, 191 N.W.2d 221 (1971).

974.05 Annotation That the state can appeal from an order suppressing evidence, but the defendant cannot, does not show a denial of equal protection of the law. State v. Withers, 61 Wis. 2d 37, 211 N.W.2d 456 (1973).

974.05 Annotation The granting of a motion to withdraw a guilty plea is a final order appealable by the state. State v. Bagnall, 61 Wis. 2d 297, 212 N.W.2d 122 (1973).

974.05 Annotation The trial court’s setting aside of a jury finding of guilt and its dismissal of the information was not appealable by the state because it was a final judgment adverse to the state made after jeopardy had attached, and jeopardy was not waived; hence the judgment was not within those situations from which a state appeal is authorized by this section. State v. Detco, Inc., 66 Wis. 2d 95, 223 N.W.2d 859 (1974).

974.05 Annotation The trial court’s order specifying conditions of incarceration was neither a judgment nor a sentence under sub. (1) (c). State v. Gibbons, 71 Wis. 2d 94, 237 N.W.2d 33 (1976).

974.05 Annotation Under s. 808.03 (2), both the prosecution and defense may seek permissive appeals of nonfinal orders. State v. Rabe, 96 Wis. 2d 48, 291 N.W.2d 809 (1980).

974.05 Annotation Sub. (1) (d) 2. authorizes the state to appeal an order suppressing a defendant’s oral statements. State v. Mendoza, 96 Wis. 2d 106, 291 N.W.2d 478 (1980).

974.05 Annotation Sub. (2) does not confine the right of cross-appeal to final judgments or orders. State v. Alles, 106 Wis. 2d 368, 316 N.W.2d 378 (1982).

974.05 Annotation The state may appeal as a matter of right any pretrial order barring admission of evidence that might “normally” determine the success of the prosecution’s case. State v. Eichman, 155 Wis. 2d 552, 456 N.W.2d 143 (1990).

974.05 Annotation This section does not prohibit the trial court from hearing a motion by the state to reconsider an order granting postconviction relief. A trial court has inherent power to vacate or modify an order pursuant to s. 807.03. State v. Brockett, 2002 WI App 115, 254 Wis. 2d 817, 647 N.W.2d 357, 01-1295.

974.05 Annotation A ruling that reduced a charge from operating while intoxicated (OWI) third offense to second offense was not appealable as a matter of right. Unlike a collateral challenge that would reduce an OWI charge from a fourth or greater offense to a third or lesser offense, the reduced number of prior convictions at issue in this case would not change the applicable prohibited alcohol level. The circuit court’s ruling would not require the state to present any different evidence at trial regarding the defendant’s actual level of intoxication that would prevent the successful prosecution of the current charge. State v. Knapp, 2007 WI App 273, 306 Wis. 2d 843, 743 N.W.2d 481, 07-1582.

974.06 974.06 Postconviction procedure.

974.06(1) (1) After the time for appeal or postconviction remedy provided in s. 974.02 has expired, a prisoner in custody under sentence of a court or a person convicted and placed with a volunteers in probation program under s. 973.11 claiming the right to be released upon the ground that the sentence was imposed in violation of the U.S. constitution or the constitution or laws of this state, that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

974.06(2) (2) A motion for such relief is a part of the original criminal action, is not a separate proceeding and may be made at any time. The supreme court may prescribe the form of the motion.

974.06(3) (3) Unless the motion and the files and records of the action conclusively show that the person is entitled to no relief, the court shall:

974.06(3)(a) (a) Cause a copy of the notice to be served upon the district attorney who shall file a written response within the time prescribed by the court.

974.06(3)(b) (b) If it appears that counsel is necessary and if the defendant claims or appears to be indigent, refer the person to the state public defender for an indigency determination and appointment of counsel under ch. 977.

974.06(3)(c) (c) Grant a prompt hearing.

974.06(3)(d) (d) Determine the issues and make findings of fact and conclusions of law. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or is otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the person as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the person or resentence him or her or grant a new trial or correct the sentence as may appear appropriate.

974.06(4) (4) All grounds for relief available to a person under this section must be raised in his or her original, supplemental or amended motion. Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the person has taken to secure relief may not be the basis for a subsequent motion, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental or amended motion.

974.06(5) (5) A court may entertain and determine such motion without requiring the production of the prisoner at the hearing. The motion may be heard under s. 807.13.

974.06(6) (6) Proceedings under this section shall be considered civil in nature, and the burden of proof shall be upon the person.

974.06(7) (7) An appeal may be taken from the order entered on the motion as from a final judgment.

974.06(8) (8) A petition for a writ of habeas corpus or an action seeking that remedy in behalf of a person who is authorized to apply for relief by motion under this section shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced the person, or that the court has denied the person relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his or her detention.

974.06 History History: 1971 c. 40 s. 93; 1977 c. 29, 187, 418; 1981 c. 289; Sup. Ct. Order, 141 Wis. 2d xiii (1987); 1991 a. 253.

974.06 Note Judicial Council Note, 1981: Sub. (8) has been amended to reflect the fact that habeas corpus relief is now available in an ordinary action in circuit court. See s. 781.01, stats., and the note thereto and s. 809.51, stats. [Bill 613-A]

974.06 Note Judicial Council Note, 1988: Sub. (5) is amended to allow postconviction motions under this section to be heard by telephone conference. [Re Order effective Jan. 1, 1988]

974.06 Annotation Discussing plea bargaining as a basis for withdrawal of a guilty plea and a new trial. State v. Wolfe, 46 Wis. 2d 478, 175 N.W.2d 216 (1970).

974.06 Annotation When the defendant makes a pro se motion within the time limited but counsel is not appointed until later, the court should hear the motion. A guilty plea can be withdrawn as a matter of right if it is established that: 1) there was a violation of a relevant constitutional right; 2) the violation caused the defendant to plead guilty; and 3) at the time of the guilty plea the defendant was unaware of potential constitutional challenges to the prosecution’s case because of that violation. State v. Carlson, 48 Wis. 2d 222, 179 N.W.2d 851 (1970).

974.06 Annotation A defendant’s contention that he concluded he was going to be sentenced under the Youth Service Act for no more than two years, whereas a 20-year sentence was imposed, constituted no grounds for withdrawal of the guilty plea when trial defense counsel asserted at the postconviction hearing that such a sentence was a desired objective but that no agreement had been made with the district attorney that it could be achieved nor representation made to the defendant that the lesser sentence would be imposed. State v. Froelich, 49 Wis. 2d 551, 182 N.W.2d 267 (1971).

974.06 Annotation The sentencing judge is not disqualified from conducting a hearing on a postconviction motion to withdraw a guilty plea unless the judge has interjected himself or herself into the plea bargaining to the extent that the judge may become a material witness or may otherwise be disqualified. Rahhal v. State, 52 Wis. 2d 144, 187 N.W.2d 800 (1971).

974.06 Annotation The defendant could not withdraw the defendant’s guilty plea after entering a plea bargain for a recommendation of a one-year sentence by the prosecutor when the presentence report recommended two years and the defendant did not object. Farrar v. State, 52 Wis. 2d 651, 191 N.W.2d 214 (1971).

974.06 Annotation Postconviction procedure cannot be used as a substitute for appeal. Trial errors such as insufficiency of evidence and instructions and errors in the admission of evidence cannot be raised. State v. Langston, 53 Wis. 2d 228, 191 N.W.2d 713 (1971).

974.06 Annotation A motion under this section is not a substitute for a motion for a new trial. The motion is limited in scope to matters of jurisdiction or of constitutional dimensions and must not be used to raise issues disposed of by a previous appeal. Peterson v. State, 54 Wis. 2d 370, 195 N.W.2d 837 (1972).

974.06 Annotation No hearing need be granted when the record refutes a defendant’s claims and they can be found to have no merit. Nelson v. State, 54 Wis. 2d 489, 195 N.W.2d 629 (1972).

974.06 Annotation This section is not a remedy for an ordinary rehearing or reconsideration of sentencing on its merits. Only constitutional and jurisdictional questions may be raised. This section may be used to review sentences and convictions regardless of the date of prosecution. State ex rel. Warren v. County Court, 54 Wis. 2d 613, 197 N.W.2d 1 (1972).

974.06 Annotation A petition under this section is limited to jurisdictional and constitutional issues. It is not a substitute for a motion for a new trial. Vara v. State, 56 Wis. 2d 390, 202 N.W.2d 10 (1972).

974.06 Annotation A question of sufficiency of the evidence cannot be reached by a motion under this section. The complete failure to produce any evidence could be reached because conviction without evidence of guilt would be a denial of due process. Weber v. State, 59 Wis. 2d 371, 208 N.W.2d 396 (1973).

974.06 Annotation A motion for postconviction relief may be denied without a hearing if the defendant fails to allege sufficient facts to raise a question of fact or presents only conclusory allegations, or the record conclusively demonstrates that the defendant is not entitled to relief. If multiple grounds for relief are claimed, particularized rulings as to each are to be made in denying the motion without an evidentiary hearing. Smith v. State, 60 Wis. 2d 373, 210 N.W.2d 678 (1973).

974.06 Annotation In view of s. 971.31 (2), objection to an arrest, insufficiency of the complaint, or the use of illegal means to obtain evidence may not be raised for the first time under this section. State v. Kuecey, 60 Wis. 2d 677, 211 N.W.2d 453 (1973).

974.06 Annotation When a defendant, ordered to be present at a hearing under this section, escapes from prison, the court may summarily dismiss the petition. State v. John, 60 Wis. 2d 730, 211 N.W.2d 463 (1973).

974.06 Annotation The supreme court does not encourage the assignment of members of the prosecutor’s staff to review petitions for postconviction relief. Holmes v. State, 63 Wis. 2d 389, 217 N.W.2d 657 (1974).

974.06 Annotation Facts must be alleged in the petition and the petitioner cannot stand on conclusory allegations, hoping to supplement them at a hearing. Levesque v. State, 63 Wis. 2d 412, 217 N.W.2d 317 (1974).

974.06 Annotation The failure to establish a factual basis for a guilty plea is of constitutional dimensions and is the type of error that can be reached by a motion under this section. Loop v. State, 65 Wis. 2d 499, 222 N.W.2d 694 (1974).

974.06 Annotation The necessity or desirability of the presence of the defendant at a hearing on postconviction motions is a matter of discretion for the trial court and depends upon the existence of substantial issues of fact. There was no abuse of discretion in the denial of the defendant’s motion to be present at the hearing on the defendant’s motions under this section when only issues of law were raised and defense counsel had other opportunities to consult with the defendant. Sanders v. State, 69 Wis. 2d 242, 230 N.W.2d 845 (1975).

974.06 Annotation Although the defendant’s allegation had no support in the record of the original proceedings, a silent record did not conclusively show that the defendant was entitled to no relief. When the defendant refuted his earlier statement that no promises were made to induce his confession other than that he would not have to go to jail that day and alleged a promise of probation, an issue of fact was presented requiring an evidentiary hearing. Zuehl v. State, 69 Wis. 2d 355, 230 N.W.2d 673 (1975).

974.06 Annotation Procedures made applicable by the postconviction relief statute shall be the exclusive procedure utilized to seek correction of an allegedly unlawful sentence. Spannuth v. State, 70 Wis. 2d 362, 234 N.W.2d 79 (1975).

974.06 Annotation State courts do not have subject-matter jurisdiction over postconviction motions of federal prisoners not in custody under the sentence of a state court. State v. Theoharopoulos, 72 Wis. 2d 327, 240 N.W.2d 635 (1976).

974.06 Annotation An issue considered on direct review cannot be reconsidered on a motion under this section. Beamon v. State, 93 Wis. 2d 215, 286 N.W.2d 592 (1980).

974.06 Annotation This section does not supplant the writ of error coram nobis. Jessen v. State, 95 Wis. 2d 207, 290 N.W.2d 685 (1980).

974.06 Annotation A court had no jurisdiction under this section to hear a challenge of the computation of a prisoner’s good time. Habeas corpus is the proper avenue of relief. State v. Johnson, 101 Wis. 2d 698, 305 N.W.2d 188 (Ct. App. 1981).

974.06 Annotation The power of a circuit court to stay the execution of a sentence for legal cause does not include the power to stay the sentence while a collateral attack is being made on the conviction by a habeas corpus proceeding in federal court. State v. Shumate, 107 Wis. 2d 460, 319 N.W.2d 834 (1982).

974.06 Annotation The burden of proof under sub. (6) is clear and convincing evidence. State v. Walberg, 109 Wis. 2d 96, 325 N.W.2d 687 (1982).

974.06 Annotation A defendant’s uncorroborated allegations will not support a claim of ineffective representation when counsel is unavailable to rebut the claim of ineffectiveness. State v. Lukasik, 115 Wis. 2d 134, 340 N.W.2d 62 (Ct. App. 1983).

974.06 Annotation Formal violation of s. 971.08 may not be remedied under this section. Motions under this section are limited to jurisdictional and constitutional matters. State v. Carter, 131 Wis. 2d 69, 389 N.W.2d 1 (1986).

974.06 Annotation While a trial court’s failure to submit a lesser-included offense instruction to the jury would probably result in reversal upon timely direct appeal, the error is not of constitutional proportion entitling a defendant to pursue relief under this section. State v. Nicholson, 148 Wis. 2d 353, 435 N.W.2d 298 (Ct. App. 1988).

974.06 Annotation A defendant challenging a sentence on due process grounds based upon a failure to receive a copy of the presentence investigation report is entitled to a hearing only upon showing that the court had a blanket policy of denial of access and the policy was specifically applied to the defendant, or that before sentencing the defendant personally sought access and was denied it. State v. Flores, 158 Wis. 2d 636, 462 N.W.2d 899 (Ct. App. 1990).

974.06 Annotation A court should permit post sentencing withdrawal of a guilty or no contest plea only to correct a manifest injustice. State v. Krieger, 163 Wis. 2d 241, 471 N.W.2d 599 (Ct. App. 1991).

974.06 Annotation A defendant’s death did not moot a motion under this section or the appeal of its denial. State v. Witkowski, 163 Wis. 2d 985, 473 N.W.2d 512 (Ct. App. 1991).

974.06 Annotation If a defendant is represented by the same attorney at trial and after conviction, the attorney’s inability to assert the attorney’s own ineffectiveness is a sufficient reason under sub. (4) for not asserting the matter in the original motion under this section. State v. Robinson, 177 Wis. 2d 46, 501 N.W.2d 831 (Ct. App. 1993).

974.06 Annotation When a defendant must be present for a postconviction evidentiary hearing, the use of a telephone hearing is not authorized. State v. Vennemann, 180 Wis. 2d 81, 508 N.W.2d 404 (1993).

974.06 Annotation A defendant is prohibited from raising a constitutional issue on a motion under this section if the claim could have been raised in a previously filed s. 974.02 motion or a direct appeal. State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994).

974.06 Annotation Generally new rules of law will not be applied retroactively to cases on collateral review under this section. State v. Horton, 195 Wis. 2d 280, 536 N.W.2d 155 (Ct. App. 1995), 93-3380.

974.06 Annotation A motion may not be filed under this section while an appeal of the same case is pending. When an appeal has not been resolved, the time for appeal under sub. (1) has not expired. State v. Redmond, 203 Wis. 2d 13, 552 N.W.2d 115 (Ct. App. 1996), 94-1544.

974.06 Annotation The Escalona-Naranjo, 185 Wis. 2d 169 (1994), rule that a prisoner is compelled to raise in an original motion all grounds for postconviction relief that could have all been brought at the same time is extended to appeals by certiorari from parole and probation revocation hearings. State ex rel. Macemon v. Christie, 216 Wis. 2d 337, 576 N.W.2d 84 (Ct. App. 1998), 97-0660.

974.06 Annotation Subject to any other bars, all defendants on probation have standing to pursue postconviction relief under this section. State v. Mentzel, 218 Wis. 2d 734, 581 N.W.2d 581 (Ct. App. 1998), 97-1814.

974.06 Annotation Section 973.13 commands that all sentences in excess of that authorized by law be declared void, including the repeater portion of a sentence. Prior postconviction motions that failed to challenge the validity of the sentence do not bar seeking relief from faulty repeater sentences. State v. Flowers, 221 Wis. 2d 20, 586 N.W.2d 175 (Ct. App. 1998), 97-3682.

974.06 Annotation Escalona-Naranjo, 185 Wis. 2d 169 (1994), did not overrule Robinson, 177 Wis. 2d 46 (Ct. App. 1993). State v. Hensley, 221 Wis. 2d 473, 585 N.W.2d 683 (Ct. App. 1998), 97-3052.

974.06 Annotation A motion to modify a sentence under this section, due to an improperly entered restitution order, does not allow granting a money judgment against the state for the recovery of improperly collected restitution under the improper sentence. State v. Minniecheske, 223 Wis. 2d 493, 590 N.W.2d 17 (Ct. App. 1998), 98-1369.

974.06 Annotation Whether a claim that newly discovered evidence entitles a probation revokee to an evidentiary hearing to determine whether a new probation revocation hearing should be conducted shall be governed by procedures analogous to those in criminal cases. State ex rel. Booker v. Schwarz, 2004 WI App 50, 270 Wis. 2d 745, 678 N.W.2d 361, 03-0217.

974.06 Annotation Trial courts may correct obvious errors in sentences when it is clear that a good faith mistake was made in an initial sentencing pronouncement, the court promptly recognizes the error, and the court, by reducing an erroneous original sentence on one count and increasing the original sentence on another, seeks to impose a lawfully structured sentence that achieves the overall disposition the court originally intended. State v. Gruetzmacher, 2004 WI 55, 271 Wis. 2d 585, 679 N.W.2d 533, 02-3014.

974.06 Annotation A hearing on a postconviction motion is required only when the movant states sufficient material facts that, if true, would entitle the defendant to relief. The mere assertion of a claim of manifest injustice, in this case the ineffective assistance of counsel, does not entitle a defendant to the granting of relief. State v. Allen, 2004 WI 106, 274 Wis. 2d 568, 682 N.W.2d 433, 02-2555.

974.06 Annotation When a defendant’s postconviction issues have been addressed by the no merit procedure under s. 809.32, the defendant may not thereafter again raise those issues or other issues that could have been raised in a previous postconviction motion under this section, absent the defendant demonstrating a sufficient reason for failing to raise those issues previously. State v. Tillman, 2005 WI App 71, 281 Wis. 2d 157, 696 N.W.2d 574, 04-0966.

974.06 Annotation This section and Escalona-Naranjo, 185 Wis. 2d 169 (1994), preclude a defendant from pursuing claims in a subsequent appeal that could have been raised in the defendant’s direct appeal, unless the defendant provides sufficient reason for failure to raise the claims in the first instance. That the appeal was dismissed pursuant to s. 809.83 (2) does not change the result. State v. Thames, 2005 WI App 101, 281 Wis. 2d 772, 700 N.W.2d 285, 04-1257.

974.06 Annotation A sufficiency of the evidence challenge may be raised directly in a motion under this section because such a claim is a matter of constitutional dimension. State v. Miller, 2009 WI App 111, 320 Wis. 2d 724, 772 N.W.2d 188, 07-1052.

974.06 Annotation A defendant is not required to file a response to the no-merit report under s. 809.32, but the fact that a defendant does not file a response to a no-merit report is not, by itself, a sufficient reason to permit the defendant to raise new claims under this section. Defendants must show a sufficient reason for failing to raise an issue in a response to a no-merit report because the court will have performed an examination of the record and determined any issues noted or any issues that are apparent to be without arguable merit. State v. Allen, 2010 WI 89, 328 Wis. 2d 1, 786 N.W.2d 124, 07-0795.

974.06 Annotation A defendant gets review of issues not raised only if the court of appeals follows the no-merit protocol. If the no-merit procedure was followed, then it is irrelevant whether the defendant raised the defendant’s claims. The defendant got review of those claims from the court of appeals and is barred from raising them again. If it was not followed, it is similarly irrelevant whether the claims were raised. The failure to raise them may or may not have contributed to the court of appeals’ failure to identify issues of arguable merit, but the court of appeals and appellate counsel should have found them, and the defendant may not be barred from bringing a motion under this section if the no-merit procedure was not followed. State v. Allen, 2010 WI 89, 328 Wis. 2d 1, 786 N.W.2d 124, 07-0795.