Case Appointments

This motion may be filed as part of the underlying criminal case as long as the attorney is bringing the motion prior to final adjudication or judgment. The best practice is for the attorney to identify before disposition whether there is any property belonging to the client that is being held by law enforcement. If there is such property, the attorney and the client may wish to make an informal request for return initially. If the agency declines to release the property and fails to respond promptly, the attorney and client should consider whether a motion is appropriate. Consideration should be given to the nature and value of the property, as well as any risk that additional examination or testing of the property could result in additional prosecution of the client. 

If the court orders restitution as part of sentencing, but does not determine the amount at the time, the attorney is ordinarily required to represent the client at the restitution hearing as part of the original appointment. However, if no restitution hearing is held or scheduled within one year after sentencing, the attorney may close the file. Attorneys can submit an interim bill after sentencing, but before restitution is determined.

An attorney may appeal an administrative law judge’s decision to the division of hearing and appeals. If the division of hearing and appeals rejects the appeal, judicial review of that decision is by writ of certiorari to the circuit court, but there is no constitutional right to counsel seeking a writ of certiorari to the circuit court.  

There are generally four grounds for challenging a revocation decision to the circuit court: 

1. whether the division kept within its jurisdiction;
2. whether the division acted according to law; 
3. whether the division’s actions were arbitrary, oppressive, or unreasonable; 
4. whether the evidence permitted the division to reasonably make the order or determination in question. 

If the appointed attorney is not convinced there is a reasonable chance of success, the attorney should decline to file the writ, but should advise the client on the applicable process and time limit. The Frank J. Remington Center, a program of UW Law School, has compiled a pro se inmate guide to challenging revocation by certiorari.

With prior approval, ancillary representation in a separate case is permitted solely for the purpose of representing the client in the primary case (a pending case in which the SPD has appointed an attorney). The following are examples of ancillary representation: 

Civil property forfeitures

The attorney may represent a client in a civil property forfeiture action only if it arises from another case in which the attorney has been appointed to represent the client. The attorney may not represent third parties (such as a relative or friend of the client), and the attorney may not litigate civil forfeitures after a final adjudication of the primary case, unless representation is necessary to safeguard the client’s Fifth Amendment rights. 

Administrative hearings about revocation of driving privileges

The attorney may represent clients in such hearings only if the attorney is already representing the client on an underlying criminal charge and revocation of driving privileges is relevant to the charges for which the attorney is appointed. 

“Fine-only” misdemeanors and forfeiture offenses

If the only penalty for a misdemeanor charge is a fine, SPD representation is not affirmatively authorized. See Wis. Stat. § 977.05(4)(i)(3). Similarly, the SPD lacks authority to represent on offenses punishable only by a monetary forfeiture. Ancillary representation may be appropriate, however, when a criminal case (with potential imprisonment) is joined with a “fine-only” misdemeanor or a forfeiture offense.

For example, it is appropriate to negotiate a resolution of a criminal case that includes disposition of related non-criminal citations. An attorney representing a person charged with a felony possession of a firearm and DNR forfeiture violations arising out of the same incident would be able to represent on all charges.

Extraordinary writs

Prior approval from the ACD Director is required for an attorney to file the following writs.

1. Habeas corpus to obtain the presence of a client or witness at a court proceeding or to obtain a client’s release from custody. 
2. Writ of Prohibition to obtain an order enjoining a court or party from taking specified action. 
3. Mandamus to compel production of records or to compel other specified action. 
4. Coram nobis to correct factual errors or omissions in the transcripts or other records of a proceeding. 

If you question whether certain representation is allowable, please contact the ACD Director for clarification.

An attorney is expected to represent an adult client from charging through sentencing, and a juvenile client from charging or detention through disposition. Sentencing or disposition includes the following:

• Notifying the client of appellate rights
• Filing the Notice of Intent to Pursue Post-Conviction/Disposition Relief
• Obtaining credit for jail time served

If a review hearing, for which no right to SPD representation exists, is scheduled for more than 60 days from sentencing or disposition, the review hearing is not considered part of the underlying appointment and the case should be closed.

The client will need to contact the local SPD office for re-evaluation to determine if the client still qualifies for SPD representation.

The court often adjourns proceedings pursuant to a settlement agreement or because of another occurrence that results in a delay of further proceedings. The policies for keeping cases open in these situations are as follows:

1. Mental disease or defect: In cases in which the client is adjudicated not-guilty by reason of mental disease or defect, the attorney’s responsibility ends with the entry of a commitment order under Wis. Stat. § 971.17(3) (and appropriate consultation about appellate rights), unless a review hearing is scheduled to take place within 1 year. 
2. Competency: When a client’s competency is in question, the attorney continues until the case is completed or until a court determines that the client is incompetent and unlikely to regain competency. The expectation is that the attorney will continue to represent the client at hearings set within one year of a finding of incompetency. 
3. Juvenile: A juvenile case remains open for 60 days after the court approves a consent decree. If the case is reopened after 60 days because of an alleged breach of the consent decree, the case is treated as a new case, with a new appointment of an attorney. 
4. Deferred Prosecution: When a deferred prosecution agreement or deferred adjudication agreement is entered into, the case remains open until the expiration of the agreement. The attorney may interim bill after the agreement is entered into. Attorneys should request prior approval from the program manager to submit an interim bill. 
5. Chapter 51/55: If a civil commitment case is settled with a hold-open agreement, the case remains open for up to one year after the agreement is entered into (unless the case is finalized at an earlier date). If the case is reopened because of alleged noncompliance with the “hold open” agreement, a new case may be opened and new counsel appointed. The attorney may interim bill after the agreement is entered. Attorneys should request prior approval from the program manager to submit an interim bill. 
6. Bench Warrant: If a bench warrant or capias is issued and the client has no further contact with the attorney within 60 days of the issuance of the bench warrant, the case may be closed. If the client is picked up on the warrant after 60 days a new case is opened and new counsel may be appointed. 
7. Restitution: If the court orders restitution as part of sentencing, but does not determine the amount at sentencing, the attorney is ordinarily required to represent the client at the restitution hearing as part of the original case. However, if no restitution hearing is held or scheduled within one year after sentencing, the attorney may close the file. Attorneys may interim bill after sentencing, but before restitution is determined. Attorneys should request prior approval from the program manager to submit an interim bill. 
8. P-CHIPS: In a Parental CHIPS case, the case remains open, and the attorney provides representation, during periodic permanency plan review hearings. Attorneys should request prior approval from the program manager to submit an interim bill. When closing a case, attorneys must submit a Notice of Completion of Representation to the clerk of courts for each case.

An attorney shall personally act as an advocate for the client and provide effective representation to the client at all stages of proceedings. In the event that an attorney must withdraw, they shall notify the local SPD office as soon as the attorney moves to withdraw.

If the attorney does not notify SPD of the withdrawal, SPD will not be aware that new counsel needs to be appointed. The courts do not notify SPD when motions to withdraw are filed.