SB318: Bill Text

SB318,67,12 5. The person who will be placed on supervised release will comply with the provider's treatment requirements and all of the requirements that are imposed by the department and the court.

SB318,67,15 6. The department has made provisions for the necessary services, including sex offender treatment, other counseling, medication, community support services, residential services, vocational services, and alcohol or other drug abuse treatment.

SB318,67,19 7. The degree of supervision and ongoing treatment needs of the person who will be placed on supervised release that is required for the safe management of him or her in the community can be provided through the allocation of a reasonable level of resources.

Note: Creates new s. 980.07 (4) to (7) revising current law relating to requests for supervised release. Under current law:

1. A person who is committed as an SVP may petition the committing court to authorize supervised release if at least 18 months have elapsed since the initial commitment order was entered or at least 6 months have elapsed since the most recent release petition was denied or the most recent order for supervised release was revoked. The director of the facility at which the person is placed may petition on the person's behalf at any time.

2. Within 20 days after receiving the petition, the court must appoint one or more examiners who have specialized knowledge determined by the court to be appropriate, who must examine the person and furnish a written report to the court within 30 days after the appointment. If any examiner believes that the person is appropriate for supervised release, the examiner must report on the type of treatment and services that the person may need while in the community on supervised release.

3. The court, without a jury, must hear the petition within 30 days after the examiner's report is filed, unless the time limit is waived by the petitioner.

4. The court must grant the petition unless the state proves by clear and convincing evidence that: (a) it is still likely that the person will engage in acts of sexual violence if the person is not continued in institutional care; or (b) the person has not demonstrated significant progress in his or her treatment or the person has refused treatment.

5. In making this decision, the court may consider: (a) The nature and circumstances of the behavior that was the basis of the allegation in the petition to commit the person; (b) the person's mental history and present mental condition; (c) where the person will live; (d) how the person will support himself or herself; and (e) what arrangements are available to ensure that the person has access to and will participate in necessary treatment, including pharmacological treatment if the person is a serious child sex offender.

6. If the court finds that the person is appropriate for supervised release, the court must notify DHFS. DHFS must make its best effort to arrange for placement of the person in a residential facility or dwelling that is in the person's county of residence.

7. DHFS and the county department in the county of residence must prepare a plan that does all of the following: (a) identifies the treatment and services, if any, that the person will receive in the community; (b) addresses the person's need, if any, for supervision, counseling, medication, community support services, residential services, vocational services, and AODA treatment; and (c) specifies who will be responsible for providing the treatment and services identified in the plan.

8. The plan must be presented to the court for its approval within 60 days after the court finding that the person is appropriate for supervised release, unless DHFS, the county department, and the person request additional time to develop the plan.

The bill creates a new process for granting supervised release. As noted above, DHFS must recommend continued institutional care, supervised release, or discharge through the reexamination process. The new process is:

1. Within 30 days after the filing of the reexamination report, treatment report, and DHFS recommendation, the person subject to the SVP commitment or the petitioner may object to the recommendation by filing a written objection with the court.

2. If DHFS's recommendation is continued institutional care, and there is no objection, the recommendation is implemented without a hearing. If DHFS recommends discharge or the person files an objection requesting discharge, the court shall proceed with determining whether discharge is appropriate. Otherwise the court, without a jury, must hold a hearing to determine whether to authorize supervised release within 30 days after the date on which objections are due, unless the time limit is waived by the petitioner.

3. The court must determine from all of the evidence whether to continue institutional care and, if not, what the appropriate placement would be for the person while on supervised release. As under current law, in making this decision, the court may consider the following: (a) the nature and circumstances of the behavior that was the basis of the allegation in the commitment petition; (b) the person's mental history and present mental condition; (c) the person's progress in treatment; (d) the person's refusal to participate in treatment; and (e) if the court were to authorize supervised release, where the person would live, how the person would support himself or herself, and what arrangements would be available to ensure that the person would have access to and would participate in treatment.

4. The court must select a county to prepare a report on the person's prospective residential options. Unless the court has good cause to select another county, the court must select the person's county of residence.

5. The court must order the county department in the county of intended placement to prepare the report, either independently or with DHFS, identifying prospective residential options. In identifying prospective residential options, the county department must consider the proximity of any potential placement to the residence of other persons on supervised release and to the residence of persons who are in the custody of DOC and regarding whom a sex offender notification bulletin has been issued. The county department must complete its report within 30 days following the court order.

6. If the court determines that the prospective residential options identified in the report are inadequate, the court must select one or more other counties to prepare a report.

7. The court may order that a person be placed on supervised release if it finds that all of the following apply:

a. The person who will be placed on supervised release: (1) has made sufficient progress in treatment such that the risk that the person will reoffend can be safely managed in the community and the progress can be sustained; and (2) the person's risk for reoffense has been reduced to a level that it is not likely that the person will reoffend if so placed.

b. That there is treatment reasonably available in the community and the person who will be placed on supervised release will be treated by a provider who is qualified to provide the necessary treatment in this state.

c. The provider presents a specific course of treatment for the person who will be placed on supervised release, agrees to assume responsibility for the person's treatment, agrees to comply with the rules and conditions of supervision imposed by the court and DHFS, agrees to report on the person's progress to the court on a regular basis, and agrees to report any violations of supervised release immediately to the court and the petitioner.

d. The person who will be placed on supervised release has housing arrangements that are sufficiently secure to protect the community, and the person or agency that is providing the housing to the person agrees in writing to accept the person, provide or allow for the level of safety the court requires, and, if the person or agency providing the housing is a state or local government agency or is licensed by DHFS, immediately report to the court and the petitioner any unauthorized absence of the person from the housing arrangement.

e. The person who will be placed on supervised release will comply with the provider's treatment requirements and all of the requirements that are imposed by DHFS and the court.

f. DHFS has made provisions for the necessary services, including sex offender treatment, other counseling, medication, community support services, residential services, vocational services, and AODA treatment.

g. The degree of supervision and ongoing treatment needs of the person who will be placed on supervised release that is required for the safe management for him or her in the community can be provided through the allocation of a reasonable level of resources.

SB318, s. 111 Section 111 . 980.08 of the statutes is repealed and recreated to read:

SB318,70,2 980.08 Supervised release; procedures, implementation, revocation. (1) If the court determines under s. 980.07 (7) that supervised release is appropriate, the court shall order the county department under s. 51.42 in the county of intended placement to assist the department of health and family services in implementing the supervised release placement.

SB318,70,5 (2) The department shall file with the court any additional rules of supervision not inconsistent with the rules or conditions imposed by the court within 10 days of imposing the rule.

SB318,70,7 (3) If the department wishes to change a rule or condition of supervision imposed by the court, it must obtain the court's approval.

SB318,70,16 (4) An order granting supervised release places the person in the care, control, and custody of the department. The department shall arrange for the care, control, and treatment of the person in the least restrictive manner consistent with the requirements of the person and in accordance with the order for supervised release. Before a person is actually released under this section, the court shall notify the municipal police department and county sheriff for the municipality and county in which the person will be residing. The notification requirement under this subsection does not apply if a municipal police department or county sheriff submits to the court a written statement waiving the right to be notified.

SB318,70,20 (5) (a) If the department concludes that a person on supervised release, or awaiting placement on supervised release, violated or threatened to violate a rule of supervised release, it may petition for revocation of the order granting supervised release. The department may also detain the person.

SB318,70,24 (b) If the department concludes that a person on supervised release, or awaiting placement on supervised release, is a threat to the safety of others, it shall detain the person and petition for revocation of the order granting supervised release.

SB318,71,11 (c) If the department concludes that the order granting supervised release should be revoked, it shall file a statement alleging the violation and a petition to revoke the order for supervised release with the committing court and provide a copy of each to the regional office of the state public defender responsible for handling cases in the county where the committing court is located. If the department has detained the person under par. (a) or (b), the department shall file the statement and the petition and provide them to the state public defender within 72 hours after the detention, excluding Saturdays, Sundays, and legal holidays. The court shall refer the matter to the authority for indigency determinations under s. 977.07 (1) and appointment of counsel under s. 977.05 (4) (j). The determination of indigency and the appointment of counsel shall be done as soon as circumstances permit.

SB318,71,16 (d) The court shall hear the petition within 30 days, unless the hearing or time deadline is waived. A final decision on the petition to revoke shall be made within 90 days of the filing of the petition. Pending the final revocation hearing, the department may detain the person in the county jail or return him or her to institutional care.

SB318,71,22 (6) (a) If the court finds after a hearing, by clear and convincing evidence, that any rule has been violated and the court finds that the violation of the rule merits the revocation of the order granting supervised release, the court may revoke the order for supervised release and order that the person be placed in institutional care. The person shall remain in institutional care until he or she is discharged from the commitment or again placed on supervised release.

SB318,72,2 (b) If the court finds after a hearing, by clear and convincing evidence, that the safety of others requires that supervised release be revoked, the court shall revoke the order granting supervised release and order that the person be placed in institutional care. The person shall remain in institutional care until he or she is discharged from the commitment or again placed on supervised release.

Note: Revises, by repealing and recreating s. 980.08, stats., current law relating to supervision of persons on supervised release. Under current law:

1. An order for supervised release places the person in the custody and control of DHFS. DHFS must arrange for control, care, and treatment of the person in the least restrictive manner consistent with the requirements of the person and in accordance with the plan for supervised release. A person on supervised release is subject to the conditions set by the court and to DHFS rules.

2. If DHFS alleges that a person has violated any condition or rule, or that the safety of others requires that supervised release be revoked, he or she may be taken into custody under DHFS rules. DHFS must submit a statement showing probable cause of the detention and a petition to revoke the order for supervised release to the committing court and the regional office of the state public defender responsible for handling cases for that court's county within 72 hours after the detention.

3. The court must hear the petition within 30 days, unless the deadline is waived by the detained person. The state has the burden of proving by clear and convincing evidence that any rule or condition of release has been violated or that the safety of others requires that supervised release be revoked. If the court determines that any rule or condition of release has been violated or that the safety of others requires that supervised release be revoked, it may revoke the order for supervised release and order that the person be placed in an appropriate institution.

The bill modifies current law relating to revocation of supervised release as follows:

1. If DHFS concludes that a person on supervised release, or awaiting placement on supervised release, violated or threatened to violate a rule of supervised release, it may petition for revocation of the order granting supervised release.

2. As under current law, DHFS may detain a person for a violation or threatened violation. In addition, under the bill, if DHFS concludes that such a person is a threat to the safety of others, it must detain the person and petition for revocation of the order granting supervised release.

3. If DHFS concludes that the order granting supervised release should be revoked, it must file a statement alleging the violation and a petition to revoke the order with the committing court and provide a copy of each to the regional office of the state public defender within 72 hours after the detention. The court must hear the petition within 30 days, unless the hearing or time deadline is waived. A final decision on the petition must be made within 90 days of its filing.

4. If the court finds after a hearing, by clear and convincing evidence, that any rule has been violated and that the violation merits the revocation of the order granting supervised release, the court may revoke the order and order that the person be placed in institutional care. If the court finds by clear and convincing evidence that the safety of others requires that supervised release be revoked, the court must revoke the order granting supervised release and order that the person be placed in institutional care.

SB318, s. 112 Section 112. 980.09 (title) of the statutes is amended to read:

SB318,72,5 980.09 (title) Petition for discharge; procedure with department's approval.

SB318, s. 113 Section 113. 980.09 (1) (title) of the statutes is repealed.

SB318, s. 114 Section 114. 980.09 (1) (a) of the statutes is renumbered 980.09 (1) and amended to read:

SB318,73,10 980.09 (1) If the secretary department determines at any time that a person committed under this chapter is no longer does not meet the criteria for commitment as a sexually violent person, the secretary department shall authorize the person to petition the committing court for discharge. The person department shall file the petition with the court and serve a copy upon the department of justice or the district attorney's office that filed the petition under s. 980.02 (1), whichever is applicable. The court, upon receipt of the petition for discharge, shall order a hearing to be held within 45 90 days after the date of receipt of the petition.

Note: Amends s. 980.09 (1), as renumbered, to:

1. Change the time limit for a hearing on a DHFS petition for discharge from within 45 days to within 90 days (after the date of receipt of the petition).

2. Require DHFS, not the person committed, to file the petition when the department determines that the person does not meet the criteria of an SVP.

SB318, s. 115 Section 115. 980.09 (1) (b) of the statutes is renumbered 980.09 (2m) and amended to read:

SB318,73,19 980.09 (2m) At a hearing under this subsection section, the district attorney or the department of justice, whichever filed the original petition, shall represent the state and shall have the right to 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. The state has the burden of proving by clear and convincing evidence that the petitioner is still currently meets the criteria for commitment as a sexually violent person.

SB318, s. 116 Section 116. 980.09 (1) (c) of the statutes is renumbered 980.09 (3) and amended to read:

SB318,74,6 980.09 (3) If the court is satisfied that the state has not met its burden of proof under par. (b) sub. (2m), the petitioner shall be discharged from the custody or supervision of the department. If the court is satisfied that the state has met its burden of proof under par. (b) sub. (2m), the court may proceed under 980.07 (7) (b) to (d) to determine, using the criterion specified in s. 980.08 (4) (b), whether to modify the petitioner's existing commitment order by authorizing supervised release.

SB318, s. 117 Section 117. 980.09 (2) of the statutes is repealed.

Note: Repeals the current provision regarding a discharge petition brought without the approval of DHFS. See the Note to Section 118 for the replacement to s. 980.09 (2).

SB318, s. 118 Section 118 . 980.093 of the statutes is created to read:

SB318,74,14 980.093 Petition for discharge without department's approval. (1) Petitions in general. A committed person may petition the committing court for discharge without the department's approval. The court shall deny the petition under this section without a hearing unless the petition alleges facts from which the court or jury may conclude the person's condition has changed so that the person does not meet the criteria for commitment as a sexually violent person.

SB318,75,2 (2) Court review of petition. The court shall review the petition within 30 days and the court may hold a hearing to determine if it contains facts from which the court or jury may conclude that the person does not meet the criteria for commitment as a sexually violent person. In determining under this subsection whether facts exist that might warrant such a conclusion, the court shall consider any current or past reports filed under s. 980.07, relevant facts and arguments in the petition and in the state's written response, arguments of counsel, and any supporting documentation provided by the person or the state. If the court determines that the petition does not contain facts from which a court or jury may conclude that the person does not meet the criteria for commitment, the court shall deny the petition.

SB318,75,7 (3) Hearing. The court shall hold a hearing within 90 days of the determination that the petition contains facts from which the court or jury may conclude that the person does not meet the criteria for commitment as a sexually violent person. The state has the burden of proving by clear and convincing evidence that the person meets the criteria for commitment as a sexually violent person.

SB318,75,13 (4) Disposition. If the court or jury is satisfied that the state has not met its burden of proof under sub. (3), the petitioner shall be discharged from the custody of the department. If the court or jury is satisfied that the state has met its burden of proof under sub. (3), the court may proceed under s. 980.07 (7) (b) to (d) to determine whether to modify the petitioner's existing commitment order by authorizing supervised release.

Note: Creates new s. 980.093 revising the current law relating to discharge from commitment. Under current law:

1. If the secretary of DHFS determines at any time that a person is no longer an SVP, the secretary must authorize the person to petition the committing court for discharge. The court must hold a hearing within 45 days after receipt of the petition. The hearing must be before the court without a jury. The state has the burden of proving by clear and convincing evidence that the person is still an SVP.

2. If the court is satisfied that the state has not met its burden of proof, the petitioner must be discharged from the custody and supervision of DHFS. If the court is satisfied that the state has met its burden, the court may proceed to determine whether to modify the person's existing commitment order by authorizing supervised release.

3. A person may also petition the court for discharge from custody or supervision without the approval of the secretary of DHFS.

4. At the time of the person's reexamination, the secretary of DHFS must provide the person with written notice of the person's right to petition for discharge over the secretary's objections. If the person does not affirmatively waive the right to petition, the court must set a probable cause hearing to determine whether facts exist that warrant a hearing on whether the person is still an SVP.

5. If the court determines at the probable cause hearing that probable cause exists to believe that the committed person is no longer an SVP, the court must set a hearing on the issue. The hearing must be to the court. The state has the right to have the person evaluated by experts chosen by the state. The state has the burden of proving by clear and convincing evidence that the committed person is likely to engage in acts of sexual violence or has not made significant progress in treatment or has refused treatment. If the court is satisfied that the state has not met its burden of proof, the petitioner must be discharged from the custody and supervision of DHFS. If the court is satisfied that the state has met its burden, the court may proceed to determine whether to modify the person's existing SVP commitment order by authorizing supervised release.

The bill modifies the provisions relating to petitions for discharge that do not have DHFS's approval as follows:

1. The court must deny the petition without a hearing unless the petition alleges facts from which the court may conclude that the person's condition has changed so that the person does not meet the criteria for commitment as an SVP. In determining whether such facts exist, the court must consider any current or past reports filed in connection with a reexamination, relevant facts and arguments in the petition and in the state's written response, arguments of counsel, and any supporting documentation provided by the person or the state.

2. The court must hold a hearing within 90 days of the determination that the petition contains facts from which the court may conclude that the person does not meet the criteria for commitment as an SVP. Upon request, the hearing may be to a jury of 6. A verdict must be agreed to by at least 5 of the 6 jurors. The state has the burden of proving by clear and convincing evidence that the person meets the criteria for commitment. The bill specifies that the general rules of evidence are inapplicable at such hearings.

3. If the court is satisfied that the state has not met its burden of proof, the petitioner must be discharged from the custody and supervision of DHFS. If the court is satisfied that the state has met its burden, the court may proceed to determine whether to modify the person's existing commitment order by authorizing supervised release.

SB318, s. 119 Section 119 . 980.095 of the statutes is created to read:

SB318,76,6 980.095 Procedures for discharge hearings. (1) Use of juries. (a) The district attorney or the department of justice, whichever filed the original petition, or the petitioner or his or her attorney may request that a hearing under s. 980.093 be to a jury of 6. A jury trial is deemed waived unless it is demanded within 10 days of the filing of the petition for discharge.

SB318,76,13 (b) Juries shall be selected and treated in the same manner as they are selected and treated in civil actions in circuit court. The number of jurors prescribed in par. (a), 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 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.

SB318,77,2 (c) No verdict shall be valid or received unless at least 5 of the jurors agree to it.

SB318,77,7 (2) Department's right to be heard. The department of justice shall represent the department of health and family services at any discharge hearing unless the departments have adverse interest. If the departments have adverse interests, the department of health and family services shall be represented at the hearing by its agency counsel or an attorney that it retains.

SB318,77,9 (3) Post verdict motions. Motions after verdict may be made without further notice upon receipt of the verdict.

SB318,77,11 (4) Appeals. Any party may appeal an order under this subsection as a final order under chs. 808 and 809.

Note: Creates new s. 980.095 providing for a separate jury requirement for discharge hearings. Specifically, the DA or DOJ, whichever filed the original petition, or the petitioner may request that the discharge hearing be to a jury of 6. A jury trial is deemed waived unless it is demanded within 10 days after the filing of the petition for discharge. No verdict is valid unless it is agreed to by at least 5 of the jurors. See, also, the Note to Section 118 .

SB318, s. 120 Section 120. 980.10 of the statutes is repealed.

Note: Repeals a provision granting an additional method by which a committed person may petition a committing court for discharge at any time. However, under this provision, if a person has previously filed a petition for discharge without the secretary's approval and the court determined that the petition was frivolous or that the petitioner remained an SVP, than the court was required to deny any subsequent petition without a hearing until the petition contained facts upon which a court could find that the condition of the person had so changed that a hearing was warranted.

SB318, s. 121 Section 121. 980.101 (2) (a) of the statutes is amended to read:

SB318,78,2 980.101 (2) (a) If the sexually violent offense was the sole basis for the allegation under s. 980.02 (2) (a) and there are no other judgments relating to a sexually violent offense committed by the person, the court shall reverse, set aside, or vacate the judgment under s. 980.05 (5) that the person is a sexually violent person, vacate the commitment order, and discharge the person from the custody or supervision of the department.

SB318, s. 122 Section 122. 980.11 (2) (intro.) of the statutes is amended to read: