2021 Wisconsin Statutes & Annotations
Chapter 809 - Rules of appellate procedure.
809.31 - Rule (Release on bond pending seeking postconviction relief).
809.31 Rule (Release on bond pending seeking postconviction relief).
(1) A defendant convicted of a misdemeanor or felony who is seeking relief from a conviction and sentence of imprisonment or to the intensive sanctions program and who seeks release on bond pending a determination of a motion or appeal shall file in the trial court a motion seeking release.
(2) The trial court shall promptly hold a hearing on the motion of the defendant, determine the motion by order and state the grounds for the order.
(3) Release may be granted if the court finds that:
(a) There is no substantial risk the appellant will not appear to answer the judgment following the conclusion of postconviction proceedings;
(b) The defendant is not likely to commit a serious crime, intimidate witnesses, or otherwise interfere with the administration of justice;
(c) The defendant will promptly prosecute postconviction proceedings; and
(d) The postconviction proceedings are not taken for purposes of delay.
(4) In making the determination on the motion, the court shall take into consideration the nature of the crime, the length of sentence and other factors relevant to pretrial release.
(5) The defendant or the state may seek review of the order of the circuit court by filing a motion in the court of appeals under 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 circuit court order regarding release pending appeal, the circuit court statement of reasons for the decision regarding release pending appeal, and the transcript of any release proceedings in the circuit court or a statement explaining why no transcript is available. The party filing the motion shall request a transcript of the court reporter's verbatim record for any proceeding in the circuit court regarding release pending appeal for all parties to the appeal and make arrangements to pay for the transcript within 7 days after the entry of the circuit court order regarding release pending appeal. Within 7 days after the date on which the transcript was requested and arrangements were made for payment, the reporter shall serve copies of the transcript on the parties to the appeal, file the transcript with the circuit court, and notify the clerk of the court of appeals and the parties to the appeal that the transcript has been filed and served. The motion shall be filed within 21 days after the entry of the circuit court order. The opposing party may file a response within 14 days after the filing of the motion.
(6) The court ordering release shall require the defendant to post a bond in accordance with s. 969.09 and may impose other terms and conditions. The defendant shall file the bond in the trial court.
History: Sup. Ct. Order, 83 Wis. 2d xiii (1978); 1981 c. 390 s. 252; 1991 a. 39; 1997 a. 232; 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; Sup. Ct. Order No. 19-01, 2019 WI 44, 386 Wis. 2d xvii.
Judicial Council Committee's Note, 1978: Section 969.09 provides for release on bond pending appeal and the conditions of the bond. Section 969.01 (2) provides for bond in felony cases after conviction in the discretion of the trial court or by the Supreme Court or a justice thereof or the Court of Appeals or a judge thereof. Neither the statutes nor case law, however, establishes the standards for release or indicates whether the Supreme Court or Court of Appeals is reviewing the action of the trial court or acting de novo. This Rule is intended to meet these deficiencies. The standards for release are those included in the American Bar Association Criminal Justice Standards, Criminal Appeals, s. 2.5. [Re Order effective July 1, 1978]
Judicial Council Note, 2001: Former rules required 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 under sub. (5) 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). [Re Order No. 00-02 effective July 1, 2001]
Judicial Council Note, 2002: Subsection (5) is amended to establish time limits within which a party must request a transcript of the reporter's notes of any circuit court proceeding concerning release pending postconviction relief or appeal, and within which the reporter must file and serve the transcript, and to require the party seeking relief from the circuit court order to request, and make arrangements to pay for, a copy of the transcript for all parties. The amendment also enlarges the time within which a party must file a motion in the court of appeals to allow time to review the transcript before deciding to file a motion. [Re Order No. 02-01 effective January 1, 2003]
Appellate procedure for a petition for bail pending appeal is discussed. State v. Whitty, 86 Wis. 2d 380, 272 N.W.2d 842 (1978).
The power of a circuit court to stay execution of a sentence for legal cause does not include the power to stay sentence while a collateral attack is being made on a conviction by habeas corpus proceeding in federal court. This rule has no application to that situation. State v. Shumate, 107 Wis. 2d 460, 319 N.W.2d 834 (1982).
The merits of the underlying appeal may be considered by the trial court in considering release pending appeal and by the appellate court in determining whether immediate review of the order denying release pending appeal is necessary. State v. Salmon, 163 Wis. 2d 369, 471 N.W.2d 286 (Ct. App. 1991).
