809.107(6)(am)
(am)
Motion for remand. If the appellant intends to appeal on any ground that may require postjudgment fact-finding, the appellant shall file a motion in the court of appeals, within 15 days after the filing of the record on appeal, raising the issue and requesting that the court of appeals retain jurisdiction over the appeal and remand to the circuit court to hear and decide the issue. If the appellant is not represented by counsel, the appellant shall file any motion under this paragraph within 45 days after the filing of the record on appeal. The appellant's counsel or, if the appellant is not represented by counsel, the appellant, shall file an affidavit in support of the motion stating with specificity the reasons that postjudgment fact-finding is necessary. The person signing the affidavit shall in the affidavit affirm under s.
802.05 (2) that, to the best of his or her knowledge, information, and belief, remand is warranted and is not being sought to cause unnecessary delay. If the court of appeals grants the motion for remand, it shall set time limits for the circuit court to hear and decide the issue, for the appellant to request transcripts of the hearing, and for the court reporter to file and serve the transcript of the hearing. The court of appeals shall extend the time limit under par.
(a) for the appellant to file a brief presenting all grounds for relief in the pending appeal.
809.107(6)(b)
(b)
Respondent's brief. The respondent shall file a brief within 10 days after the service of the later of the appellant's brief or the guardian ad litem's brief, if the guardian ad litem takes the position of the appellant.
809.107(6)(c)
(c)
Appellant's reply brief. The appellant shall file within 10 days after the service of the later of the respondent's brief or the guardian ad litem's brief, if the guardian ad litem takes the position of the respondent, a reply brief or statement that a reply brief will not be filed.
809.107(6)(d)
(d)
Guardian ad litem's brief. If the guardian ad litem appointed under s.
48.235 (1) (c) for the child who is the subject of the proceeding takes the position of the appellant, the guardian ad litem's brief shall be filed within 15 days after the filing of the record on appeal with the court of appeals. If the guardian ad litem takes the position of a respondent, the guardian ad litem's brief shall be filed within 10 days after service of the appellant's brief. If the guardian ad litem chooses not to participate in an appeal, the guardian ad litem shall file with the court a statement of reasons for not participating under s.
48.235 (7) within 15 days of the filing of the notice of appeal.
809.107(6)(e)
(e) Decision. Cases appealed under this section shall be given preference and shall be taken in an order that ensures that a decision is issued within 30 days after the filing of the appellant's reply brief or statement that a reply brief will not be filed.
809.107(6)(f)
(f)
Petition for review. A petition for review of an appeal in the supreme court, if any, shall be filed within 30 days after the date of the decision of the court of appeals. For a petitioner other than the state, the petitioner on whose behalf the petition for review is filed shall sign the petition. Petitioner's counsel, if any, shall also sign the petition for review, but may not sign in lieu of the petitioner. The supreme court shall give preference to a petition for review of an appeal filed under this paragraph.
809.107 History
History: 1993 a. 395;
1995 a. 275; Sup. Ct. Order No.
00-02, 2001 WI 39, 242 Wis. 2d xxvii;
2005 a. 293; Sup. Ct. Order No.
05-07, 2006 WI 37, 287 Wis. 2d xix; Sup. Ct. Order No.
04-08, 2008 WI 108, filed 7-30-08, eff. 1-1-09;
2015 a. 128; Sup. Ct. Order No.
17-05, 2017 WI 95, filed 11-9-17, eff. 7-1-18;
2017 a. 258; Sup. Ct. Order No.
19-01, 2019 WI 44, 386 Wis. 2d xvii; Sup. Ct. Order No.
20-07, 2021 WI 37, filed 4-23-21, eff. 7-1-21;
2021 a. 240 s.
30.
809.107 Note
Judicial Council Note, 2001: Titles and subtitles were added. Subsection (4) is amended to require that the person who files a notice of intent to appeal must request a copy of the circuit court case record within 15 days after filing the notice of intent to appeal. Subsection (4) also requires the clerk of the circuit court to serve a copy of the circuit court case record upon the person requesting it within 30 days after the date of the request.
809.107 Note
Former sub. (5) is recreated as subs. (5) (a) and (b).
809.107 Note
Subsection (5) (c) requires the appellant to request a copy of the transcript for the other parties to the appeal, and to make arrangements to pay for those copies, within 5 days after filing the notice of appeal.
809.107 Note
Subsection (5) (d) requires the appellant to file a statement on transcript within 5 days after filing the notice of appeal.
809.107 Note
Subsection (5) (e) requires the court reporter to serve copies of the transcript on the other parties to the appeal within 5 days after the appellant requests the copies.
809.107 Note
Subsection (6) (am) provides a procedure for ineffective assistance of counsel claims and other claims that require fact-finding after the final judgment or order has been entered. [Re Order No. 00-02 effective July 1, 2001]
809.107 Note
Judicial Council Note, 2006: The creation of s. 809.107 (2) (am) requires counsel representing a parent who wants to appeal the TPR disposition to file a notice of intent to pursue postdisposition or appellate relief. Trial counsel's representation continues until the notice of intent is filed.
809.107 Note
Section 809.107 (2) (bm) contains the substance of former sub. (2). The amendment adds the case number to the content requirements for the notice of intent. Subsection (2) (bm) 2. deletes a reference to the date on which the judgment or order was granted because the time limits in s. 808.04 (7m) commence on the date the judgment or order was entered.
809.107 Note
The amendment to s. 809.107 (2) (c) addresses the practical concern that arises when a notice of intent is filed before the final judgment or order is entered. Similar to s. 808.04 (8), the amendment allows the filing date of the notice of intent to be deemed the date that the judgment or order was entered, and thereby preserves appellate jurisdiction.
809.107 Note
To facilitate compliance with the time limits in this section, the amendment to (3) requires the clerk to send a copy of the judgment or order that shows the date on which it was entered and a list of transcripts already on file to the state public defender's intake office, or to the person if appearing without counsel, or to retained counsel.
809.107 Note
New s. 809.107 (4) (a) codifies existing practice and establishes a time limit for the state public defender to appoint counsel and request transcripts and circuit court case records. The public defender's time limit commences on the date that the public defender's office receives the materials from the circuit court clerk, rather than on the date the notice of intent is filed, so as to reduce the number of extension motions that must be filed when the clerk does not timely send the materials under sub. (3) (a).
809.107 Note
The amendment to s. 809.107 (4) (b) clarifies the procedure applicable to persons who are not represented by the state public defender and creates time limits applicable to a person who has applied for and has been denied public defender representation. In the latter case, the rule provides an additional 15 days for the person to obtain private counsel and request a copy of the transcript and case record. The time limit is set at 30 days because 15 days will have expired while the public defender's office determines whether the person is eligible for appointed counsel. This time limit commences on the date the notice of intent was filed, rather than the date of the public defender's determination because that determination does not appear in the case record.
809.107 Note
Subsection (4m) includes the last two sentences of former sub. (4). Subsection (4m) also creates a new requirement for the circuit court clerk to indicate the date and manner of service in the case record. The new requirement is necessary because the notice of appeal time limit is measured from the date of service of the case record or transcript, whichever is later.
809.107 Note
The amendment to s. 809.107 (5) (a) clarifies that the time limit for filing a notice of appeal commences 30 days from the later of the service of the transcript or case record. Persons contemplating filing a notice of appeal are better able to assess grounds for relief after reviewing both the transcripts and the circuit court case record. [Re Order No. 05-07 effective July 1, 2006]
809.107 Annotation
Time limits imposed by the legislature in sub. (6) do not constitute unconstitutional infringements on the judiciary, as they are subject to court modification. Time limits imposed by sub. (5) do not violate constitutional guarantees of due process or effective assistance of counsel. Rhonda R.D. v. Franklin R.D.,
191 Wis. 2d 680,
530 N.W.2d 34 (Ct. App. 1995).
809.107 Annotation
The no merit appeal procedure under s. 809.32 and the authority to extend the time for filing a notice of appeal under s. 809.82 (2) do not apply to appeals regarding terminations of parental rights. Gloria A. v. State,
195 Wis. 2d 268,
536 N.W.2d 396 (Ct. App. 1995),
95-0315.
809.107 Annotation
While s. 809.32 relating to no merit reports does not apply to appeals under this section, the filing of a no merit report is not precluded if the notice of intent and notice of appeal under subs. (2) and (5) are timely filed and the report is filed within the time for filing the appellant's brief under sub. (6) (a). Brown County v. Edward C.T.,
218 Wis. 2d 160,
579 N.W.2d 293 (Ct. App. 1998),
98-0075.
809.107 Annotation
Despite the express service provisions in this section, service does not initiate the appeal and confer jurisdiction, filing does. Carla B. v. Timothy N.,
228 Wis. 2d 695,
598 N.W.2d 924 (Ct. App. 1999),
99-0853.
809.108
809.108
Appeals in proceedings related to political subdivision approvals. 809.108(1)(1)
Applicability. This section applies to the appeal of a judgment or order under s.
781.10 (2) (d) 5. and supersedes all inconsistent provisions of this chapter.
809.108(2)
(2) Initiating an appeal. A party may initiate an appeal under this section by filing a notice of appeal with the clerk of the circuit court in which the judgment or order appealed from was entered and shall specify in the notice of appeal the judgment or order appealed from.
809.108(3)
(3) Appeal procedure. Subsequent proceedings in an appeal under this section are governed by the procedures for civil appeals under this subchapter and the procedures under subch.
VI, except as follows:
809.108(3)(a)
(a) The appellant shall file a brief within 30 days after the filing of the record on appeal.
809.108(3)(b)
(b) The respondent shall file a brief within 30 days after the service of the appellant's brief.
809.108(3)(c)
(c) The appellant shall file within 15 days after the service of the respondent's brief a reply brief or statement that a reply brief will not be filed.
809.108(4)
(4) Decision. The court of appeals shall give preference to an appeal under this section and shall take the appeal in an order that ensures that the court of appeals issues a decision no later than 90 days after the deadline under sub.
(3) (c).
809.108 History
History: 2023 a. 16.
809.109
809.109
Rule (Appeals from orders entered pursuant to s. 971.14). 809.109(1)(1)
Applicability. This
section
applies
to
the
appeal
of
an
order
under s.
971.14 and
supersedes
all
inconsistent
provisions
of
this
chapter.
809.109(2)(a)
(a)
Appeal procedure; counsel to continue. A person seeking postdisposition
or
appellate
relief
shall
comply
with
this
section. If the person desires to pursue postdisposition or appellate relief, counsel
representing
the
person
during
circuit
court
proceedings
under s.
971.14 shall
continue
representation
by
filing
a
notice
under
par.
(2) (b) unless
sooner
discharged
by the
person
or by the
circuit court.
809.109(2)(b)
(b)
Notice of intent to pursue postdisposition or appellate relief. Within 14 days of the entry of an order under s.
971.14 determining competency to proceed or ordering the involuntary administration
of
medication,
the
person
shall
file
in
the
circuit
court and serve on the prosecutor, any other party, and the department of health services, a notice of intent to pursue postdisposition or appellate relief. If the record discloses that entry of the order occurred after the notice of intent was filed, the notice shall be treated as filed after entry of the order appealed from on the day of the entry of the final order. The notice of intent shall include all of the following:
809.109(2)(b)2.
2. An
identification
of
the
order
from
which
the
person
intends
to seek
postdisposition
or
appellate
relief
and
the
date
on
which
the
order was entered.
809.109(2)(b)3.
3. The name and address of the person and the person's trial counsel.
809.109(2)(b)4.
4. Whether
the
person
requests
representation
by
the
state
public defender for purposes of postdisposition or appellate relief.
809.109(2)(b)5.
5. For a person who does not request representation by the state public defender, whether the person will proceed without counsel or will be represented by retained counsel. If the person has retained counsel to pursue postdisposition or appellate relief, counsel's name and address shall be included.
809.109(2)(c)
(c)
Clerk to send materials. Within 5 days after a notice under par.
(b) is filed, the clerk of the circuit court shall do all of the following:
809.109(2)(c)1.
1. If the person requests representation by the state public defender
for
purposes
of
postdisposition
or
appellate
relief,
the
clerk shall send to the state public defender's appellate intake office a copy of the notice of intent that shows the date on which the notice was filed, a copy of the order specified in the notice that shows the date on which the order was entered, a list of the court reporters for each proceeding under s.
971.14 in the action in which the order was entered,
and
a
list
of
those
proceedings
for
which
a
transcript
already has been filed with the clerk of circuit court.
809.109(2)(c)2.
2. If the person does not request representation by the state public defender, the clerk shall send or furnish to the person, if the person is appearing without counsel, or to the person's attorney, if one has been retained, a copy of the order or order specified in the notice that shows the date on which the order was entered, a list of the
court
reporters
for
each
proceeding
in
the
action
in
which
the
order was entered, and a list of those proceedings in which a transcript already has been filed with the clerk of circuit court.
809.109(2)(d)
(d)
State public defender appointment of counsel; request for transcript and circuit court case record. Within 15 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, if not ordered under par.
(f) 1., and a copy of the circuit court case record.
809.109(2)(e)
(e)
Person not represented by public defender. A person who does not
request
representation
by
the
state
public
defender
for
purposes
of postdisposition or appellate relief shall request a transcript of the court
reporter's
verbatim
record,
and
may
request
a
copy
of
the
circuit court
case
record
within
15
days
after
filing
the
notice
of
intent
under par.
(b). A person who is denied representation by the state public defender for purposes of postdisposition or appellate 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 of intent under par.
(b).
809.109(2)(f)
(f)
Filing and service of transcript and circuit court case record. 809.109(2)(f)1.1. If involuntary medication is ordered under s.
971.14, the subject of the order or counsel representing the person shall within 3 days
of
involuntary
medication
being
ordered,
request
the
transcript
of any portion of the proceedings relating to the involuntary medication order. The court reporter shall file the transcript with the circuit court and serve copies on the parties within 14 days of the request.
809.109(2)(f)2.
2. Except
transcripts
requested
under
subd.
1., the
court
reporter shall file the transcript with the circuit court and serve a copy of the transcript on the person within 30 days after the transcript is requested; within 10 days after the request for a transcript of postdisposition
proceedings
brought
under
par.
(g),
the
court
reporter shall file the transcript with the circuit court and serve a copy on the
parties
entitled
to
a
copy. The
clerk
of
circuit
court
shall
serve a copy of the circuit court case record on the person within 30 days after the case record is requested, and shall indicate in the case record the date and manner of service.
809.109(2)(g)
(g)
Notice of appeal, postdisposition motion. The person shall file in the circuit court a notice of appeal or motion seeking postdisposition
relief
within
30
days
after
the
later
of
the
service
of the transcript or circuit court case record. 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.
809.109(2)(h)
(h)
Order determining 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 postdisposition relief within 30 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. The person shall file a motion for postdisposition relief in the circuit court
before
a
notice
of
appeal
is
filed
unless
the
grounds
for
seeking relief are sufficiency of the evidence or issues previously raised.
809.109(2)(i)
(i)
Appeal from order. The
person
shall
file
in
the
circuit
court a notice of appeal from the order and, if necessary, from the order of the circuit court on the motion for postdisposition relief within 5 days
of
the
entry
of
the
order
on
the
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.
809.109(2)(j)
(j)
Notice of abandonment of appeal. If a person who filed a notice of intent to seek postdisposition relief under par.
(b) and requested a transcript and case record under par.
(d) or
(e) decides not to file a notice of appeal, the person shall notify the circuit court, prosecutor, and the Department of Health Services of the decision, within 30 days after the service of the transcript and case record under par.
(f) 2. 809.109(2)(k)
(k)
Requesting transcripts for other parties. The
appellant
shall request
a
copy
of
the
transcript
of
the
court
reporter's
verbatim
record of the proceedings for each of the parties to the appeal and make arrangements to pay for the transcript and copies within 5 days after the filing of the notice of appeal.
809.109(2)(L)
(L)
Statement on transcript. Within
5
days
after
filing
the
notice of appeal, the appellant shall file a statement on transcript with the clerk of circuit court, who shall transmit the statement on transcript to the clerk of the court of appeals within 3 days after its filing. The statement on transcript shall either designate the portions of the transcript that have been requested by the appellant or contain a statement by the appellant that a transcript is not necessary for prosecution
of
the
appeal. If
a
transcript
is
necessary
for
prosecution of the appeal, the statement on transcript shall also contain a statement
by
the
court
reporter
that
the
appellant
has
requested
copies of the transcript or designated portions thereof for each of the other parties; that the appellant has made arrangements to pay for the original transcript and for all copies for other parties; the date on which the appellant requested the transcript and made arrangements to pay for it; and the date on which the transcript must be served on the parties.
809.109(2)(m)
(m)
Service of transcript on other parties. The court reporter shall serve copies of the transcript on the parties indicated in the statement on transcript within 5 days after the date the appellant requested copies of the transcript under par.
(k).
809.109(3)
(3)
Appeal by state; appointment of counsel. The State may appeal
an order entered under s.
971.14 by filing a notice of appeal within 14 days after entry of the judgment or order. If the person who is the subject
of
the
case
or
proceeding
claims
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.
809.109(4)
(4)
No-merit reports. A s.
809.32 no-merit report, response, and supplemental no-merit report may be filed in an appeal from an order entered
under
s.
971.14. The
appointed
attorney
shall
file
in
the
court of appeals and serve on the appellant the no-merit report and certification within 15 days after the filing of the record on appeal. The appointed attorney shall serve on the appellant a copy of the transcript and the record on appeal at the same time that the no-merit report
is
served
on
the
appellant. The
appellant
may
file
in
the
court of appeals a response to the no-merit report within 10 days after service of the no-merit report. The attorney may file a supplemental no-merit report and affidavit within 10 days after receiving the response to the no-merit report.
809.109(5)
(5)
Subsequent proceedings in court of appeals; petition for review in supreme court. Subsequent proceedings in the appeal are governed by the procedures
for
civil
appeals
and
the
procedures
under
subch.
VI,
except as follows:
809.109(5)(a)
(a)
Appellant's brief-in-chief. The
appellant
shall
file
a
brief within 15 days after the filing of the record on appeal.
809.109(5)(b)
(b)
Respondent's brief. The
respondent
shall
file
a
brief
within 15
days
after the
service
of the
appellant's brief.
809.109(5)(c)
(c)
Appellant's reply brief. The appellant shall file a reply brief, or a statement that a reply brief will not be filed, within 11 days after service of the respondent's brief.
809.109(5)(d)
(d)
Decision. Cases appealed under this section shall be given preference and shall be taken in an order that ensures that a decision is
issued
within
30
days
after
the
filing
of
the
appellant's
reply
brief or statement that a reply brief will not be filed.
809.109(5)(e)
(e)
Petition for review. A petition for review of an appeal in the
supreme
court,
if
any,
shall
be
filed
within
30
days
after
the
date of the decision of the court of appeals. The supreme court shall give preference to a petition for review of an appeal filed under this paragraph.
809.109(6)
(6)
Confidential party designation. For
appeals
under
this
section,
the notice
of
appeal
and
any
other
filed
documents
shall
refer
to
the
person subject to the s.
971.14 order that is being appealed by one or more initials or other appropriate pseudonym or designation.
809.109(7)
(7)
Stay pending postdisposition proceeding and appeal. 809.109(7)(a)(a)
Automatic stay. The
involuntary
administration
of
medication ordered
for
purposes
of
restoring
competency
pursuant
to
s.
971.14 shall be automatically stayed for 14 days.
809.109(7)(b)
(b)
Notice of motion to continue stay. If a notice of intent to pursue
postdisposition
or
appellate
relief
is
filed
under
sub.
(2) (b), the person may file in the court of appeals a notice of motion to continue the stay under par.
(a) pending postdisposition proceedings and appeal.
809.109(7)(b)1.
1. The stay is continued upon filing the notice in this paragraph, and continues until the motion is decided by the court.
809.109(7)(b)2.
2. The moving party shall file a memorandum in support of the motion for stay within 11 days after service of the transcript in sub.
(2) (f) 1. 809.109(7)(b)3.
3. The respondent shall file a response within 11 days after service of the memorandum.
809.109(7)(b)4.
4. The court shall decide the motion for stay of the medication order within 14 days after the response is filed.
Effective date note
NOTE: This section is created eff. 7-1-24 by Sup. Ct. Order No.
23-05.
809.109 History
History: Sup. Ct. Order No.
23-05, 2024 WI 20, filed 5-2-24, eff. 7-1-24; s. 35.17 correction in (2) (f) 2., (g), (j), (7) (b) 1.
809.109 Note
NOTE: Sup. Ct. Order No.
23-05 states that the Judicial Council Note to s. 809.109 “is not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule."
809.109 Note
Judicial Council Note, 2024: This section provides a uniform, organized, and expedited handling of appeals from orders under s. 971.14. Such appeals are unique in that the underlying case is criminal, but the nature of the appeal involves the defendant's mental health and is deemed a special civil proceeding. Further, the competency orders are final for purposes of appeal, even though the criminal case has not been resolved.
See State v. Scott,
2018 WI 74, ¶31,
382 Wis. 2d 476,
914 N.W.2d 141.
809.109 Note
The unique nature of these appeals, including the short timeline within which the State must restore a defendant to competency per s.
971.14
(5)
(a)
1.,
supports
an
expedited
procedure
for
handling
these appeals. Section
809.109
also
codifies
miscellaneous
aspects
of
court decisions. To the extent that any provision of this section is inconsistent with preexisting case authority, this rule governs. For example, this section creates a limited automatic stay of involuntary medication orders in the prejudgment context, even though case law no longer requires an automatic stay.
See State v. Green, 2022 WI 30,
Effective date note
NOTE: The 2024 Judicial Council Note is created eff. 7-1-24 by Sup. Ct. Order No.
23-05.
809.11
809.11
Rule (Items to be filed and transmitted). 809.11(1)(1)
Fee. The appellant shall pay the filing fee to the clerk of the court of appeals when the notice of appeal is filed. Payment may be made by check or through the court electronic payment system, unless arrangements are made with the clerk of court or otherwise ordered by the court. An appellant may file with the court of appeals a petition or motion for waiver of the filing fee under s.
814.29 (1) or
(1m), using a form provided by the court for that purpose.
809.11(2)
(2) Transmittal of notice of appeal. The clerk of the circuit court shall transmit to the court of appeals, within 3 days of the filing of the notice of appeal, the notice of appeal, the appellant's docketing statement, the appellant's motion filed under s.
809.41 (1) or
(4), if any, and the circuit court record of the case maintained pursuant to s.
59.40 (2) (b) or
(c).
809.11(3)(a)(a) The clerk of the court of appeals shall docket the appeal upon receipt of the items referred to in sub.
(2), create a notice of docketing, and transmit the notice of docketing to the clerk of circuit court.
809.11(3)(b)
(b) For electronic filing users in the circuit court case, receipt of the notice of docketing through the circuit court electronic filing system shall constitute service of the notice of docketing and notification that the court of appeals proceeding has been commenced. Where service on the attorney general is required by s.
809.802 (1), service shall be made as provided in s.
809.802 (2). The clerk shall serve the notice of docketing on the paper parties by traditional methods.
