SB404,35,2322
(b) Any relevant written or recorded statements of a witness named on a list
23under par. (a), including any reports prepared in accordance with s. 980.031 (5).
SB404,36,324
(c) The results of any physical or mental examination or any scientific or
25psychological test, experiment or comparison that the person intends to offer in
1evidence at the trial or proceeding, and any raw data that were collected, used or
2considered in any manner as part of the examination, test, experiment or
3comparison.
SB404,36,54
(d) The criminal record of a witness named on a list under par. (a) which is
5known to the person's attorney.
SB404,36,76
(e) Any physical or documentary evidence that the person intends to offer in
7evidence at the trial or proceeding.
SB404,36,11
8(4) Comment or instruction on failure to call witness. No comment or
9instruction regarding the failure to call a witness at the trial shall be made or given
10if the sole basis for such comment or instruction is the fact that the name of the
11witness appears upon a list furnished pursuant to this section.
SB404,36,15
12(5) Testing or analysis of evidence. On motion of a party, the court may order
13the production of any item of evidence or raw data which is intended to be introduced
14at the trial for testing or analysis under such terms and conditions as the court
15prescribes.
SB404,36,24
16(6) Protective order. Upon motion of a party, the court may at any time order
17that discovery, inspection or the listing of witnesses required under this section be
18denied, restricted or deferred, or make other appropriate orders. If the prosecuting
19attorney or the attorney for a person subject to this chapter certifies that to list a
20witness may subject the witness or others to physical or economic harm or coercion,
21the court may order that the deposition of the witness be taken pursuant to s. 967.04
22(2) to (6). The name of the witness need not be divulged prior to the taking of such
23deposition. If the witness becomes unavailable or changes his or her testimony, the
24deposition shall be admissible at trial as substantive evidence.
SB404,37,4
1(7) In camera proceedings. Either party may move for an in camera inspection
2by the court of any document required to be disclosed under sub. (2) or (3) for the
3purpose of masking or deleting any material which is not relevant to the case being
4tried. The court shall mask or delete any irrelevant material.
SB404,37,9
5(8) Continuing duty to disclose. If, subsequent to compliance with a
6requirement of this section, and prior to or during trial, a party discovers additional
7material or the names of additional witnesses requested which are subject to
8discovery, inspection or production under this section, the party shall promptly notify
9the other party of the existence of the additional material or names.
SB404,37,13
10(9) Sanctions for failure to comply. (a) The court shall exclude any witness
11not listed or evidence not presented for inspection or copying required by this section,
12unless good cause is shown for failure to comply. The court may in appropriate cases
13grant the opposing party a recess or a continuance.
SB404,37,1714
(b) In addition to or in lieu of any sanction specified in par. (a), a court may,
15subject to sub. (4), advise the jury of any failure or refusal to disclose material or
16information required to be disclosed under sub. (2) or (3), or of any untimely
17disclosure of material or information required to be disclosed under sub. (2) or (3).
SB404,37,24
18(10) Payment of photocopy costs in cases involving indigent respondents. 19When the state public defender or a private attorney appointed under s. 977.08
20requests photocopies of any item that is discoverable under this section, the state
21public defender shall pay any fee charged for the photocopies from the appropriation
22under s. 20.550 (1) (a). If the person providing photocopies under this section charges
23the state public defender a fee for the photocopies, the fee may not exceed the actual,
24necessary and direct cost of photocopying.
SB404,38,3
1(11) Exclusive method of discovery. Chapter 804 does not apply to
2proceedings under this chapter. This section provides the only methods of obtaining
3discovery and inspection in proceedings under this chapter.
SB404, s. 77
4Section
77. 980.038 of the statutes is created to read:
SB404,38,11
5980.038 Miscellaneous procedural provisions. (1) Motions challenging
6jurisdiction of court or timeliness of petition; grounds for challenging
7jurisdiction. (a) A motion challenging the jurisdiction of the court or the timeliness
8of a petition filed under s. 980.02 shall be filed within 10 days after the court holds
9the probable cause hearing under s. 980.04 (2). Failure to file a motion within the
10time specified in this paragraph waives the right to challenge the jurisdiction of the
11court or the timeliness of a petition.
SB404,38,1612
(b) Notwithstanding s. 801.11, a court may exercise personal jurisdiction over
13a person who is the subject of a petition filed under s. 980.02 even though the person
14is not served as provided under s. 801.11 (1) or (2) with a verified petition and
15summons or with an order for detention under s. 980.04 (1) and probable cause
16hearing under s. 980.04 (2).
SB404,38,23
17(2) Evidence of refusal to participate in examination. (a) At any hearing
18under this chapter, the state may present evidence or comment on evidence that a
19person who is the subject of a petition filed under s. 980.02 or a person who has been
20committed under this chapter refused to participate in an examination of his or her
21mental condition that was being conducted under this chapter or that was conducted
22before the petition under s. 980.02 was filed for the purpose of evaluating whether
23to file a petition.
SB404,39,224
(b) A licensed physician, licensed psychologist or other mental health
25professional may indicate in any written report that he or she prepares in connection
1with a proceeding under this chapter that the person whom he or she examined
2refused to participate in the examination.
SB404,39,3
3(3) Testimony by telephone or live audiovisual means.
SB404,39,54
(b) Testimony may not be received by telephone or live audiovisual means at
5a trial under s. 980.05 or a hearing under s. 980.09 (1) (b) or (2) (b).
SB404,39,15
6(4) Motions for postcommitment relief; appeal. (a) A motion for
7postcommitment relief by a person committed under s. 980.06 shall be made in the
8time and manner provided in ss. 809.30 and 809.40. An appeal by a person who has
9been committed under ch. 980 from a final order under s. 980.06, 980.08 or 980.09
10or from an order denying a motion for postcommitment relief or from both shall be
11taken in the time and manner provided in ss. 808.04 (3), 809.30 and 809.40. If a
12person is seeking relief from an order of commitment under s. 980.06, the person
13shall file a motion for postcommitment relief in the trial court prior to an appeal
14unless the grounds for seeking relief are sufficiency of the evidence or issues
15previously raised.
SB404,39,1816
(b) An appeal by the state from a final judgment or order under this chapter
17may be taken to the court of appeals within the time specified in s. 808.04 (4) and in
18the manner provided for civil appeals under chs. 808 and 809.
SB404,39,25
19(5) Failure to comply with time limits; effect. Failure to comply with any time
20limit specified in this chapter does not deprive the circuit court of personal or subject
21matter jurisdiction or of competency to exercise that jurisdiction. Failure to comply
22with any time limit specified in this chapter is not grounds for an appeal or grounds
23to vacate any order, judgment or commitment issued or entered under this chapter.
24Failure to object to a period of delay or a continuance waives the time limit that is
25the subject of the period of delay or continuance.
SB404,40,3
1(6) Errors and defects not affecting substantial rights. The court shall, in
2every stage of a proceeding under this chapter, disregard any error or defect in the
3pleadings or proceedings that does not affect the substantial rights of either party.
SB404,40,196
980.04
(1) Upon the filing of a petition under s. 980.02, the court shall review
7the petition to determine whether to issue an order for detention of the person who
8is the subject of the petition. The person shall be detained only if there is
probable 9cause to believe that the person is eligible for commitment under s. 980.05 (5). A
10person detained under this subsection shall be held in a facility approved by the
11department. If the person is serving a sentence of imprisonment, is in a secured
12correctional facility, as defined in s. 938.02 (15m), a secured child caring institution,
13as defined in s. 938.02 (15g), or a secured group home, as defined in s. 938.02 (15p),
14or is committed to institutional care, and the court orders detention under this
15subsection, the court shall order that the person be transferred to a detention facility
16approved by the department. A detention order under this subsection remains in
17effect until the
person is discharged petition is dismissed after a hearing under sub.
18(3) or after a trial under s. 980.05
(5) or until the effective date of a commitment order
19under s. 980.06, whichever is applicable.
SB404, s. 79
20Section
79. 980.04 (2) of the statutes is renumbered 980.04 (2) (a) and
21amended to read:
SB404,41,622
980.04
(2) (a) Whenever a petition is filed under s. 980.02, the court shall hold
23a hearing to determine whether there is probable cause to believe that the person
24named in the petition is a sexually violent person.
If the person named in the petition
25is in custody, the court shall hold the probable cause hearing within 72 hours after
1the petition is filed, excluding Saturdays, Sundays and legal holidays. If the person
2named in the petition is not in custody, the Except as provided in par. (b), the court
3shall hold the probable cause hearing within
a reasonable time 30 days, excluding
4Saturdays, Sundays and legal holidays, after the filing of the petition
, unless that
5time is extended by the court for good cause shown upon its own motion, the motion
6of any party or the stipulation of the parties.
SB404, s. 80
7Section
80. 980.04 (2) (b) of the statutes is created to read:
SB404,41,158
980.04
(2) (b) If the person named in the petition is in custody under a sentence,
9dispositional order or commitment and the probable cause hearing will be held after
10the date on which the person is scheduled to be released or discharged from the
11sentence, dispositional order or commitment, the probable cause hearing under par.
12(a) shall be held no later than 10 days after the person's scheduled release or
13discharge date, excluding Saturdays, Sundays and legal holidays, unless that time
14is extended by the court for good cause shown upon its own motion, the motion of any
15party or the stipulation of the parties.
SB404, s. 81
16Section
81. 980.04 (3) of the statutes is amended to read:
SB404,41,2417
980.04
(3) If the court determines after a hearing that there is probable cause
18to believe that the person named in the petition is a sexually violent person, the court
19shall order that the person be taken into custody if he or she is not in custody and
20shall order the person to be transferred within a reasonable time to an appropriate
21facility
specified by the department for an evaluation
by the department as to
22whether the person is a sexually violent person. If the court determines that
23probable cause does not exist to believe that the person is a sexually violent person,
24the court shall dismiss the petition.
SB404, s. 82
25Section
82. 980.05 (1) of the statutes is amended to read:
SB404,42,5
1980.05
(1) A trial to determine whether the person who is the subject of a
2petition under s. 980.02 is a sexually violent person shall commence no later than
45 390 days after the date of the probable cause hearing under s. 980.04. The court may
4grant
a continuance one or more continuances of the trial date for good cause upon
5its own motion, the motion of any party or the stipulation of the parties.
SB404, s. 83
6Section
83. 980.05 (1m) of the statutes is repealed.
SB404, s. 84
7Section
84. 980.05 (2m) of the statutes is created to read:
SB404,42,168
980.05
(2m) (a) At a jury trial under this section, the summoning of jurors, the
9selection and qualifications of the jury, the challenge of jurors for cause and the duty
10of the court in charging the jury and giving instructions and discharging the jury
11when unable to agree shall be the same as in jury trials in civil actions, except that,
12notwithstanding s. 805.08 (3), each party shall be entitled to 4 peremptory challenges
13or, if the court orders additional jurors to be selected under s. 805.08 (2), to 5
14peremptory challenges. A party may waive in advance any or all of its peremptory
15challenges and the number of jurors called under par. (b) shall be reduced by this
16number.
SB404,42,2417
(b) The number of jurors selected shall be the number prescribed in sub. (2),
18unless a lesser number has been stipulated to and approved under par. (c) or the court
19orders that additional jurors be selected. That number, plus the number of
20peremptory challenges available to all of the parties, shall be called initially and
21maintained in the jury box by calling others to replace jurors excused for cause until
22all jurors have been examined. The parties shall thereupon exercise in their order,
23the state beginning, the peremptory challenges available to them, and if any party
24declines to challenge, the challenge shall be made by the clerk by lot.
SB404,43,4
1(c) At any time before the verdict in a jury trial under this section, the parties
2may stipulate in writing or by statement in open court, on the record, with the
3approval of the court, that the jury shall consist of any number less than the number
4prescribed in sub. (2).
SB404, s. 85
5Section
85. 980.05 (3) (a) of the statutes is amended to read:
SB404,43,86
980.05
(3) (a) At a trial on a petition under this chapter, the petitioner has the
7burden of proving
the allegations in the petition beyond a reasonable doubt
that the
8person who is the subject of the petition is a sexually violent person.
SB404, s. 86
9Section
86. 980.05 (3) (b) of the statutes is amended to read:
SB404,43,1310
980.05
(3) (b) If the state alleges that the sexually violent offense or act that
11forms the basis for the petition was an act that was sexually motivated as provided
12in s. 980.01 (6) (b)
or (bm), the state is required to prove beyond a reasonable doubt
13that the alleged sexually violent act was sexually motivated.
SB404,43,2416
980.07
(1) If a person has been committed under s. 980.06 and has not been
17discharged under s. 980.09, the department shall conduct an examination of his or
18her mental condition within
6 18 months after
an the date of the initial commitment
19order under s. 980.06 and again thereafter at least once each 12 months for the
20purpose of determining whether the person has made sufficient progress for the
21court to consider whether the person should be placed on supervised release or
22discharged. At the time of a reexamination under this section, the person who has
23been committed may retain or seek to have the court appoint an examiner as
24provided under s.
980.03 (4) 980.031 (3).
SB404, s. 88
25Section
88. 980.07 (3) of the statutes is repealed.
SB404,44,203
980.08
(3) Within 20 days after receipt of the petition, the court shall appoint
4one or more examiners having the specialized knowledge determined by the court to
5be appropriate, who shall examine the
mental condition of the person and furnish
6a written report of the examination to the court within 30 days after appointment.
7The
district attorney or the department of justice, whichever filed the original
8petition, may have the petitioner examined as provided under s. 980.031 (2). An
9examiner retained by the district attorney or department of justice under s. 980.031
10(2) or retained by or appointed for the petitioner under s. 980.031 (3) shall file a
11written report of his or her examination with the court within 45 days of being
12retained or appointed. All of the examiners
acting under this subsection shall have
13reasonable access to the person
for purposes of examination and to the person's
past
14and present treatment records,
as defined in s. 51.30 (1) (b), and patient health care
15records, as provided under s.
146.82 (2) (c)
980.031 (4). If any such examiner believes
16that the person is appropriate for supervised release under the criterion specified in
17sub. (4), the examiner shall report on the type of treatment and services that the
18person may need while in the community on supervised release. The county shall
19pay the costs of an examiner appointed under this subsection as provided under s.
2051.20 (18) (a).
SB404,45,1823
980.08
(4) The court, without a jury, shall hear the petition within 30 days after
24the
report of the court-appointed examiner is reports of all persons who examined
25the petitioner under sub. (3) are filed with the court, unless the petitioner waives this
1time limit. Expenses of proceedings under this subsection shall be paid as provided
2under s. 51.20 (18) (b), (c) and (d). The court shall grant the petition unless the state
3proves by clear and convincing evidence that the person is still a sexually violent
4person and that it is still substantially probable that the person will engage in acts
5of sexual violence if the person is not continued in institutional care. In making a
6decision under this subsection, the court may consider, without limitation because
7of enumeration, the nature and circumstances of the behavior that was the basis of
8the allegation in the petition under s. 980.02 (2) (a), the person's mental history and
9present mental condition, where the person will live, how the person will support
10himself or herself and what arrangements are available to ensure that the person
11has access to and will participate in necessary treatment, including pharmacological
12treatment using an antiandrogen or the chemical equivalent of an antiandrogen if
13the person is a serious child sex offender. A decision under this subsection on a
14petition filed by a person who is a serious child sex offender may not be made based
15on the fact that the person is a proper subject for pharmacological treatment using
16an antiandrogen or the chemical equivalent of an antiandrogen or on the fact that
17the person is willing to participate in pharmacological treatment using an
18antiandrogen or the chemical equivalent of an antiandrogen.
SB404, s. 91
19Section
91. 980.09 (1) (b) of the statutes is amended to read:
SB404,46,320
980.09
(1) (b) At a hearing under this subsection, the district attorney or the
21department of justice, whichever filed the original petition, shall represent the state
22and
shall have the right to may have the petitioner examined
by an expert or
23professional person of his, her or its choice. The hearing shall be before the court
24without a jury as provided under s. 980.031 (2). The
district attorney or the
25department of justice, whichever filed the original petition, or the petitioner or his
1or her attorney may request that the hearing under this subsection be to a jury of 6.
2At the hearing under this subsection, the state has the burden of proving by clear and
3convincing evidence that the petitioner is still a sexually violent person.
SB404, s. 92
4Section
92. 980.09 (2) (a) of the statutes is amended to read:
SB404,46,215
980.09
(2) (a) A person may petition the committing court for discharge from
6custody or supervision without the secretary's approval. At the time of an
7examination under s. 980.07 (1), the secretary shall provide the committed person
8with a written notice of the person's right to petition the court for discharge over the
9secretary's objection.
The notice shall contain a waiver of rights. The secretary shall
10forward
a copy of the notice
and waiver form to the court with the report of the
11department's examination under s. 980.07
and shall file with the court proof that the
12person received the notice. If the person
does not affirmatively waive the right to
13petition petitions for discharge from custody or supervision without the secretary's
14approval, the court shall set a
probable cause hearing to determine whether facts
15exist that warrant a hearing on whether the person is still a sexually violent person.
16The committed person has a right to have an attorney represent him or her at the
17probable cause hearing, but the person is not entitled to be present at the
probable
18cause hearing.
In determining under this paragraph whether facts exist that
19warrant a hearing on whether the person is still a sexually violent person, the court
20shall consider only the examination report filed under s. 980.07 (2) and relevant
21arguments and supporting documentation provided by the person or the state.
SB404, s. 93
22Section
93. 980.09 (2) (b) of the statutes is amended to read:
SB404,47,1123
980.09
(2) (b) If the court determines at the
probable cause hearing under par.
24(a) that
probable cause exists to believe that the committed person is no longer facts
25exist that warrant a hearing on whether the person is still a sexually violent person,
1then the court shall set a hearing on the issue. At a hearing under this paragraph,
2the committed person is entitled to be present and to the benefit of the protections
3afforded to the person under s. 980.03. The district attorney or the department of
4justice, whichever filed the original petition, shall represent the state at a hearing
5under this paragraph.
The hearing under this paragraph shall be to the court. The
6district attorney or the department of justice, whichever filed the original petition,
7or the petitioner or his or her attorney may request that the hearing under this
8subsection be to a jury of 6. The state
has the right to may have the committed person
9evaluated by experts chosen by the state examined as provided under s. 980.031 (2).
10At the hearing, the state has the burden of proving by clear and convincing evidence
11that the committed person is still a sexually violent person.
SB404, s. 94
12Section
94. 980.09 (3) of the statutes is created to read:
SB404,47,1913
980.09
(3) Jury selection. (a) At a hearing to a jury under sub. (1) (b) or (2)
14(b), the summoning of jurors, the selection and qualifications of the jury, the
15challenge of jurors for cause and the duty of the court in charging the jury and giving
16instructions and discharging the jury when unable to agree shall be the same as in
17jury trials in civil actions. A party may waive in advance any or all of its peremptory
18challenges and the number of jurors called under par. (b) shall be reduced by this
19number.
SB404,48,320
(b) The number of jurors selected shall be the number prescribed in sub. (1) (b)
21or (2) (b), whichever is applicable, unless a lesser number has been stipulated to and
22approved under par. (c) or the court orders that additional jurors be selected. That
23number, plus the number of peremptory challenges available to all of the parties,
24shall be called initially and maintained in the jury box by calling others to replace
25jurors excused for cause until all jurors have been examined. The parties shall
1thereupon exercise in their order, the state beginning, the peremptory challenges
2available to them, and if any party declines to challenge, the challenge shall be made
3by the clerk by lot.
SB404,48,74
(c) At any time before the verdict in a hearing to a jury under sub. (1) (b) or (2)
5(b), the parties may stipulate in writing or by statement in open court, on the record,
6with the approval of the court, that the jury shall consist of any number less than the
7number prescribed in sub. (1) (b) or (2) (b), whichever is applicable.
SB404,48,1310
980.12
(1) Except as provided in ss.
980.03 (4) 980.031 (3) and 980.08 (3), the
11department shall pay from the appropriations under s. 20.435 (2) (a) and (bm) for all
12costs relating to the evaluation, treatment and care of persons evaluated or
13committed under this chapter.
SB404, s. 96
14Section
96. 980.14 (title) of the statutes is created to read:
SB404,48,15
15980.14 (title)
Immunity.
SB404, s. 97
16Section
97. 980.14 (1) of the statutes is created to read:
SB404,48,1917
980.14
(1) In this section, "agency" means the department of corrections, the
18department of health and family services, the department of justice or a district
19attorney.
SB404,49,821
(1)
Sexually violent person commitment proceedings generally. The
22treatment of sections 48.396 (6), 48.78 (2) (e), 48.981 (7) (a) 8s., 51.30 (3) (bm) and
23(4) (b) 8m., 8s. and 10m., 118.125 (2) (ck), 146.82 (2) (c) and (cm), 801.52, 808.04 (3)
24and (4), 809.10 (1) (a), 809.30 (1) (a) and (b), 809.40 (1), 814.61 (1) (c) 6., 905.04 (4)
25(a), 911.01 (4) (c), 938.35 (1) (e), 938.396 (2) (e), 938.78 (2) (e), 972.15 (6), 980.01 (2),
1(5) and (6) (a), (am), (b), (bm), (c) and (d), 980.015 (2) (c), 980.03 (2) (intro.), (3), (4)
2and (5), 980.031 (title), (1) and (2), 980.034, 980.035, 980.036, 980.038, 980.04 (1) and
3(3), 980.05 (1), (1m), (2m) and (3) (a) and (b), 980.07 (1) and (3), 980.08 (3) and (4) and
4980.09 (1) (b), (2) (a) and (b) and (3) of the statutes, the renumbering and amendment
5of section 980.04 (2) of the statutes and the creation of section 980.04 (2) (b) of the
6statutes first apply to proceedings under chapter 980 of the statutes that are
7initiated by a petition filed under section 980.02 of the statutes, as affected by this
8act, on the effective date of this subsection.
SB404,49,119
(2)
Sexually violent person commitment petitions. The treatment of section
10980.02 (1) (a) and (b) 3., (1m), (2) (ag) and (4) (intro.) of the statutes first applies to
11petitions filed on the effective date of this subsection.
SB404,49,1412
(3)
Immunity provisions. The treatment of sections 980.015 (4) and 980.14
13(title) and (1) of the statutes first applies to acts or omissions occurring on the
14effective date of this subsection.
SB404,49,2115
(4)
Increased penalty for persons with prior convictions for certain crimes. 16The renumbering and amendment of sections 939.623 (1) and 939.624 (1) of the
17statutes and the creation of sections 939.623 (1) (b) and 939.624 (1) (b) of the statutes
18first apply to offenses committed on the effective date of this subsection, but do not
19preclude the counting of other offenses as prior serious sex crimes, prior serious
20violent crimes or prior child sex crimes for purposes of sentencing a person under
21section 939.623 or 939.624 of the statutes, as affected by this act.