SB404: Bill Text

SB404,37,13 (9) Sanctions for failure to comply. (a) The court shall exclude any witness not listed or evidence not presented for inspection or copying required by this section, unless good cause is shown for failure to comply. The court may in appropriate cases grant the opposing party a recess or a continuance.

SB404,37,17 (b) In addition to or in lieu of any sanction specified in par. (a), a court may, subject to sub. (4), advise the jury of any failure or refusal to disclose material or information required to be disclosed under sub. (2) or (3), or of any untimely disclosure of material or information required to be disclosed under sub. (2) or (3).

SB404,37,24 (10) Payment of photocopy costs in cases involving indigent respondents. When the state public defender or a private attorney appointed under s. 977.08 requests photocopies of any item that is discoverable under this section, the state public defender shall pay any fee charged for the photocopies from the appropriation under s. 20.550 (1) (a). If the person providing photocopies under this section charges the state public defender a fee for the photocopies, the fee may not exceed the actual, necessary and direct cost of photocopying.

SB404,38,3 (11) Exclusive method of discovery. Chapter 804 does not apply to proceedings under this chapter. This section provides the only methods of obtaining discovery and inspection in proceedings under this chapter.

SB404, s. 77 Section 77. 980.038 of the statutes is created to read:

SB404,38,11 980.038 Miscellaneous procedural provisions. (1) Motions challenging jurisdiction of court or timeliness of petition; grounds for challenging jurisdiction. (a) A motion challenging the jurisdiction of the court or the timeliness of a petition filed under s. 980.02 shall be filed within 10 days after the court holds the probable cause hearing under s. 980.04 (2). Failure to file a motion within the time specified in this paragraph waives the right to challenge the jurisdiction of the court or the timeliness of a petition.

SB404,38,16 (b) Notwithstanding s. 801.11, a court may exercise personal jurisdiction over a person who is the subject of a petition filed under s. 980.02 even though the person is not served as provided under s. 801.11 (1) or (2) with a verified petition and summons or with an order for detention under s. 980.04 (1) and probable cause hearing under s. 980.04 (2).

SB404,38,23 (2) Evidence of refusal to participate in examination. (a) At any hearing under this chapter, the state may present evidence or comment on evidence that a person who is the subject of a petition filed under s. 980.02 or a person who has been committed under this chapter refused to participate in an examination of his or her mental condition that was being conducted under this chapter or that was conducted before the petition under s. 980.02 was filed for the purpose of evaluating whether to file a petition.

SB404,39,2 (b) A licensed physician, licensed psychologist or other mental health professional may indicate in any written report that he or she prepares in connection with a proceeding under this chapter that the person whom he or she examined refused to participate in the examination.

SB404,39,3 (3) Testimony by telephone or live audiovisual means.

SB404,39,5 (b) Testimony may not be received by telephone or live audiovisual means at a trial under s. 980.05 or a hearing under s. 980.09 (1) (b) or (2) (b).

SB404,39,15 (4) Motions for postcommitment relief; appeal. (a) A motion for postcommitment relief by a person committed under s. 980.06 shall be made in the time and manner provided in ss. 809.30 and 809.40. An appeal by a person who has been committed under ch. 980 from a final order under s. 980.06, 980.08 or 980.09 or from an order denying a motion for postcommitment relief or from both shall be taken in the time and manner provided in ss. 808.04 (3), 809.30 and 809.40. If a person is seeking relief from an order of commitment under s. 980.06, the person shall file a motion for postcommitment relief in the trial court prior to an appeal unless the grounds for seeking relief are sufficiency of the evidence or issues previously raised.

SB404,39,18 (b) An appeal by the state from a final judgment or order under this chapter may be taken to the court of appeals within the time specified in s. 808.04 (4) and in the manner provided for civil appeals under chs. 808 and 809.

SB404,39,25 (5) Failure to comply with time limits; effect. Failure to comply with any time limit specified in this chapter does not deprive the circuit court of personal or subject matter jurisdiction or of competency to exercise that jurisdiction. Failure to comply with any time limit specified in this chapter is not grounds for an appeal or grounds to vacate any order, judgment or commitment issued or entered under this chapter. Failure to object to a period of delay or a continuance waives the time limit that is the subject of the period of delay or continuance.

SB404,40,3 (6) Errors and defects not affecting substantial rights. The court shall, in every stage of a proceeding under this chapter, disregard any error or defect in the pleadings or proceedings that does not affect the substantial rights of either party.

SB404, s. 78 Section 78. 980.04 (1) of the statutes, as affected by 1999 Wisconsin Act 9, is amended to read:

SB404,40,19 980.04 (1) Upon the filing of a petition under s. 980.02, the court shall review the petition to determine whether to issue an order for detention of the person who is the subject of the petition. The person shall be detained only if there is probable cause to believe that the person is eligible for commitment under s. 980.05 (5). A person detained under this subsection shall be held in a facility approved by the department. If the person is serving a sentence of imprisonment, is in a secured correctional facility, as defined in s. 938.02 (15m), a secured child caring institution, as defined in s. 938.02 (15g), or a secured group home, as defined in s. 938.02 (15p), or is committed to institutional care, and the court orders detention under this subsection, the court shall order that the person be transferred to a detention facility approved by the department. A detention order under this subsection remains in effect until the person is discharged petition is dismissed after a hearing under sub. (3) or after a trial under s. 980.05 (5) or until the effective date of a commitment order under s. 980.06, whichever is applicable.

SB404, s. 79 Section 79. 980.04 (2) of the statutes is renumbered 980.04 (2) (a) and amended to read:

SB404,41,6 980.04 (2) (a) Whenever a petition is filed under s. 980.02, the court shall hold a hearing to determine whether there is probable cause to believe that the person named in the petition is a sexually violent person. If the person named in the petition is in custody, the court shall hold the probable cause hearing within 72 hours after the petition is filed, excluding Saturdays, Sundays and legal holidays. If the person named in the petition is not in custody, the Except as provided in par. (b), the court shall hold the probable cause hearing within a reasonable time 30 days, excluding Saturdays, Sundays and legal holidays, after the filing of the petition, unless that time is extended by the court for good cause shown upon its own motion, the motion of any party or the stipulation of the parties.

SB404, s. 80 Section 80. 980.04 (2) (b) of the statutes is created to read:

SB404,41,15 980.04 (2) (b) If the person named in the petition is in custody under a sentence, dispositional order or commitment and the probable cause hearing will be held after the date on which the person is scheduled to be released or discharged from the sentence, dispositional order or commitment, the probable cause hearing under par. (a) shall be held no later than 10 days after the person's scheduled release or discharge date, excluding Saturdays, Sundays and legal holidays, unless that time is extended by the court for good cause shown upon its own motion, the motion of any party or the stipulation of the parties.

SB404, s. 81 Section 81. 980.04 (3) of the statutes is amended to read:

SB404,41,24 980.04 (3) If the court determines after a hearing that there is probable cause to believe that the person named in the petition is a sexually violent person, the court shall order that the person be taken into custody if he or she is not in custody and shall order the person to be transferred within a reasonable time to an appropriate facility specified by the department for an evaluation by the department as to whether the person is a sexually violent person. If the court determines that probable cause does not exist to believe that the person is a sexually violent person, the court shall dismiss the petition.

SB404, s. 82 Section 82. 980.05 (1) of the statutes is amended to read:

SB404,42,5 980.05 (1) A trial to determine whether the person who is the subject of a petition under s. 980.02 is a sexually violent person shall commence no later than 45 90 days after the date of the probable cause hearing under s. 980.04. The court may grant a continuance one or more continuances of the trial date for good cause upon its own motion, the motion of any party or the stipulation of the parties.

SB404, s. 83 Section 83. 980.05 (1m) of the statutes is repealed.

SB404, s. 84 Section 84. 980.05 (2m) of the statutes is created to read:

SB404,42,16 980.05 (2m) (a) At a jury trial under this section, the summoning of jurors, the selection and qualifications of the jury, the challenge of jurors for cause and the duty of the court in charging the jury and giving instructions and discharging the jury when unable to agree shall be the same as in jury trials in civil actions, except that, notwithstanding s. 805.08 (3), each party shall be entitled to 4 peremptory challenges or, if the court orders additional jurors to be selected under s. 805.08 (2), to 5 peremptory challenges. A party may waive in advance any or all of its peremptory challenges and the number of jurors called under par. (b) shall be reduced by this number.

SB404,42,24 (b) The number of jurors selected shall be the number prescribed in sub. (2), unless a lesser number has been stipulated to and approved under par. (c) or the court orders that additional jurors be selected. That number, plus the number of peremptory challenges available to all of the parties, shall be called initially and maintained in the jury box by calling others to replace jurors excused for cause until all jurors have been examined. The parties shall thereupon exercise in their order, the state beginning, the peremptory challenges available to them, and if any party declines to challenge, the challenge shall be made by the clerk by lot.

SB404,43,4 (c) At any time before the verdict in a jury trial under this section, the parties may stipulate in writing or by statement in open court, on the record, with the approval of the court, that the jury shall consist of any number less than the number prescribed in sub. (2).

SB404, s. 85 Section 85. 980.05 (3) (a) of the statutes is amended to read:

SB404,43,8 980.05 (3) (a) At a trial on a petition under this chapter, the petitioner has the burden of proving the allegations in the petition beyond a reasonable doubt that the person who is the subject of the petition is a sexually violent person.

SB404, s. 86 Section 86. 980.05 (3) (b) of the statutes is amended to read:

SB404,43,13 980.05 (3) (b) If the state alleges that the sexually violent offense or act that forms the basis for the petition was an act that was sexually motivated as provided in s. 980.01 (6) (b) or (bm), the state is required to prove beyond a reasonable doubt that the alleged sexually violent act was sexually motivated.

SB404, s. 87 Section 87. 980.07 (1) of the statutes, as affected by 1999 Wisconsin Act 9, is amended to read:

SB404,43,24 980.07 (1) If a person has been committed under s. 980.06 and has not been discharged under s. 980.09, the department shall conduct an examination of his or her mental condition within 6 18 months after an the date of the initial commitment order under s. 980.06 and again thereafter at least once each 12 months for the purpose of determining whether the person has made sufficient progress for the court to consider whether the person should be placed on supervised release or discharged. At the time of a reexamination under this section, the person who has been committed may retain or seek to have the court appoint an examiner as provided under s. 980.03 (4) 980.031 (3).

SB404, s. 88 Section 88. 980.07 (3) of the statutes is repealed.

SB404, s. 89 Section 89. 980.08 (3) of the statutes, as affected by 1999 Wisconsin Act 9, is amended to read:

SB404,44,20 980.08 (3) Within 20 days after receipt of the petition, the court shall appoint one or more examiners having the specialized knowledge determined by the court to be appropriate, who shall examine the mental condition of the person and furnish a written report of the examination to the court within 30 days after appointment. The district attorney or the department of justice, whichever filed the original petition, may have the petitioner examined as provided under s. 980.031 (2). An examiner retained by the district attorney or department of justice under s. 980.031 (2) or retained by or appointed for the petitioner under s. 980.031 (3) shall file a written report of his or her examination with the court within 45 days of being retained or appointed. All of the examiners acting under this subsection shall have reasonable access to the person for purposes of examination and to the person's past and present treatment records, as defined in s. 51.30 (1) (b), and patient health care records, as provided under s. 146.82 (2) (c) 980.031 (4). If any such examiner believes that the person is appropriate for supervised release under the criterion specified in sub. (4), the examiner shall report on the type of treatment and services that the person may need while in the community on supervised release. The county shall pay the costs of an examiner appointed under this subsection as provided under s. 51.20 (18) (a).

SB404, s. 90 Section 90. 980.08 (4) of the statutes, as affected by 1999 Wisconsin Act 9, is amended to read:

SB404,45,18 980.08 (4) The court, without a jury, shall hear the petition within 30 days after the report of the court-appointed examiner is reports of all persons who examined the petitioner under sub. (3) are filed with the court, unless the petitioner waives this time limit. Expenses of proceedings under this subsection shall be paid as provided under s. 51.20 (18) (b), (c) and (d). The court shall grant the petition unless the state proves by clear and convincing evidence that the person is still a sexually violent person and that it is still substantially probable that the person will engage in acts of sexual violence if the person is not continued in institutional care. In making a decision under this subsection, the court may consider, without limitation because of enumeration, the nature and circumstances of the behavior that was the basis of the allegation in the petition under s. 980.02 (2) (a), the person's mental history and present mental condition, where the person will live, how the person will support himself or herself and what arrangements are available to ensure that the person has access to and will participate in necessary treatment, including pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen if the person is a serious child sex offender. A decision under this subsection on a petition filed by a person who is a serious child sex offender may not be made based on the fact that the person is a proper subject for pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen or on the fact that the person is willing to participate in pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen.

SB404, s. 91 Section 91. 980.09 (1) (b) of the statutes is amended to read:

SB404,46,3 980.09 (1) (b) At a hearing under this subsection, the district attorney or the department of justice, whichever filed the original petition, shall represent the state and shall have the right to may have the petitioner examined by an expert or professional person of his, her or its choice. The hearing shall be before the court without a jury as provided under s. 980.031 (2). The district attorney or the department of justice, whichever filed the original petition, or the petitioner or his or her attorney may request that the hearing under this subsection be to a jury of 6. At the hearing under this subsection, the state has the burden of proving by clear and convincing evidence that the petitioner is still a sexually violent person.

SB404, s. 92 Section 92. 980.09 (2) (a) of the statutes is amended to read:

SB404,46,21 980.09 (2) (a) A person may petition the committing court for discharge from custody or supervision without the secretary's approval. At the time of an examination under s. 980.07 (1), the secretary shall provide the committed person with a written notice of the person's right to petition the court for discharge over the secretary's objection. The notice shall contain a waiver of rights. The secretary shall forward a copy of the notice and waiver form to the court with the report of the department's examination under s. 980.07 and shall file with the court proof that the person received the notice. If the person does not affirmatively waive the right to petition petitions for discharge from custody or supervision without the secretary's approval, the court shall set a probable cause hearing to determine whether facts exist that warrant a hearing on whether the person is still a sexually violent person. The committed person has a right to have an attorney represent him or her at the probable cause hearing, but the person is not entitled to be present at the probable cause hearing. In determining under this paragraph whether facts exist that warrant a hearing on whether the person is still a sexually violent person, the court shall consider only the examination report filed under s. 980.07 (2) and relevant arguments and supporting documentation provided by the person or the state.

SB404, s. 93 Section 93. 980.09 (2) (b) of the statutes is amended to read:

SB404,47,11 980.09 (2) (b) If the court determines at the probable cause hearing under par. (a) that probable cause exists to believe that the committed person is no longer facts exist that warrant a hearing on whether the person is still a sexually violent person, then the court shall set a hearing on the issue. At a hearing under this paragraph, the committed person is entitled to be present and to the benefit of the protections afforded to the person under s. 980.03. The district attorney or the department of justice, whichever filed the original petition, shall represent the state at a hearing under this paragraph. The hearing under this paragraph shall be to the court. The district attorney or the department of justice, whichever filed the original petition, or the petitioner or his or her attorney may request that the hearing under this subsection be to a jury of 6. The state has the right to may have the committed person evaluated by experts chosen by the state examined as provided under s. 980.031 (2). At the hearing, the state has the burden of proving by clear and convincing evidence that the committed person is still a sexually violent person.

SB404, s. 94 Section 94. 980.09 (3) of the statutes is created to read:

SB404,47,19 980.09 (3) Jury selection. (a) At a hearing to a jury under sub. (1) (b) or (2) (b), the summoning of jurors, the selection and qualifications of the jury, the challenge of jurors for cause and the duty of the court in charging the jury and giving instructions and discharging the jury when unable to agree shall be the same as in jury trials in civil actions. A party may waive in advance any or all of its peremptory challenges and the number of jurors called under par. (b) shall be reduced by this number.

SB404,48,3 (b) The number of jurors selected shall be the number prescribed in sub. (1) (b) or (2) (b), whichever is applicable, unless a lesser number has been stipulated to and approved under par. (c) or the court orders that additional jurors be selected. That number, plus the number of peremptory challenges available to all of the parties, shall be called initially and maintained in the jury box by calling others to replace jurors excused for cause until all jurors have been examined. The parties shall thereupon exercise in their order, the state beginning, the peremptory challenges available to them, and if any party declines to challenge, the challenge shall be made by the clerk by lot.

SB404,48,7 (c) At any time before the verdict in a hearing to a jury under sub. (1) (b) or (2) (b), the parties may stipulate in writing or by statement in open court, on the record, with the approval of the court, that the jury shall consist of any number less than the number prescribed in sub. (1) (b) or (2) (b), whichever is applicable.

SB404, s. 95 Section 95. 980.12 (1) of the statutes, as affected by 1999 Wisconsin Act 9, is amended to read:

SB404,48,13 980.12 (1) Except as provided in ss. 980.03 (4) 980.031 (3) and 980.08 (3), the department shall pay from the appropriations under s. 20.435 (2) (a) and (bm) for all costs relating to the evaluation, treatment and care of persons evaluated or committed under this chapter.

SB404, s. 96 Section 96. 980.14 (title) of the statutes is created to read:

SB404,48,15 980.14 (title) Immunity.

SB404, s. 97 Section 97. 980.14 (1) of the statutes is created to read:

SB404,48,19 980.14 (1) In this section, "agency" means the department of corrections, the department of health and family services, the department of justice or a district attorney.

SB404, s. 98 Section 98. Initial applicability.

SB404,49,8 (1) Sexually violent person commitment proceedings generally. The treatment of sections 48.396 (6), 48.78 (2) (e), 48.981 (7) (a) 8s., 51.30 (3) (bm) and (4) (b) 8m., 8s. and 10m., 118.125 (2) (ck), 146.82 (2) (c) and (cm), 801.52, 808.04 (3) and (4), 809.10 (1) (a), 809.30 (1) (a) and (b), 809.40 (1), 814.61 (1) (c) 6., 905.04 (4) (a), 911.01 (4) (c), 938.35 (1) (e), 938.396 (2) (e), 938.78 (2) (e), 972.15 (6), 980.01 (2), (5) and (6) (a), (am), (b), (bm), (c) and (d), 980.015 (2) (c), 980.03 (2) (intro.), (3), (4) and (5), 980.031 (title), (1) and (2), 980.034, 980.035, 980.036, 980.038, 980.04 (1) and (3), 980.05 (1), (1m), (2m) and (3) (a) and (b), 980.07 (1) and (3), 980.08 (3) and (4) and 980.09 (1) (b), (2) (a) and (b) and (3) of the statutes, the renumbering and amendment of section 980.04 (2) of the statutes and the creation of section 980.04 (2) (b) of the statutes first apply to proceedings under chapter 980 of the statutes that are initiated by a petition filed under section 980.02 of the statutes, as affected by this act, on the effective date of this subsection.

SB404,49,11 (2) Sexually violent person commitment petitions. The treatment of section 980.02 (1) (a) and (b) 3., (1m), (2) (ag) and (4) (intro.) of the statutes first applies to petitions filed on the effective date of this subsection.

SB404,49,14 (3) Immunity provisions. The treatment of sections 980.015 (4) and 980.14 (title) and (1) of the statutes first applies to acts or omissions occurring on the effective date of this subsection.

SB404,49,21 (4) Increased penalty for persons with prior convictions for certain crimes. The renumbering and amendment of sections 939.623 (1) and 939.624 (1) of the statutes and the creation of sections 939.623 (1) (b) and 939.624 (1) (b) of the statutes first apply to offenses committed on the effective date of this subsection, but do not preclude the counting of other offenses as prior serious sex crimes, prior serious violent crimes or prior child sex crimes for purposes of sentencing a person under section 939.623 or 939.624 of the statutes, as affected by this act.

SB404,49,22 (End)