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
11Section
115. 980.09 (1) (b) of the statutes is renumbered 980.09 (2m) and
12amended to read:
SB318,73,1913
980.09
(2m) At a hearing under this
subsection section, the district attorney
14or the department of justice, whichever filed the original petition, shall represent the
15state and shall have the right to have the petitioner examined by an expert or
16professional person of his, her or its choice.
The hearing shall be before the court
17without a jury. The state has the burden of proving by clear and convincing evidence
18that the petitioner
is still currently meets the criteria for commitment as a sexually
19violent person.
SB318, s. 116
20Section
116. 980.09 (1) (c) of the statutes is renumbered 980.09 (3) and
21amended to read:
SB318,74,6
1980.09
(3) If the court is satisfied that the state has not met its burden of proof
2under
par. (b) sub. (2m), the petitioner shall be discharged from the custody
or
3supervision of the department. If the court is satisfied that the state has met its
4burden of proof under
par. (b) sub. (2m), the court may proceed
under 980.07 (7) (b)
5to (d) to determine
, using the criterion specified in s. 980.08 (4) (b), whether to modify
6the petitioner's existing commitment order by authorizing supervised release.
SB318, s. 117
7Section
117. 980.09 (2) of the statutes is repealed.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
8Section
118
. 980.093 of the statutes is created to read:
SB318,74,14
9980.093 Petition for discharge without department's approval. (1) 10Petitions in general. A committed person may petition the committing court for
11discharge without the department's approval. The court shall deny the petition
12under this section without a hearing unless the petition alleges facts from which the
13court or jury may conclude the person's condition has changed so that the person does
14not meet the criteria for commitment as a sexually violent person.
SB318,75,2
15(2) Court review of petition. The court shall review the petition within 30
16days and the court may hold a hearing to determine if it contains facts from which
17the court or jury may conclude that the person does not meet the criteria for
18commitment as a sexually violent person. In determining under this subsection
19whether facts exist that might warrant such a conclusion, the court shall consider
20any current or past reports filed under s. 980.07, relevant facts and arguments in the
21petition and in the state's written response, arguments of counsel, and any
22supporting documentation provided by the person or the state. If the court
23determines that the petition does not contain facts from which a court or jury may
1conclude that the person does not meet the criteria for commitment, the court shall
2deny the petition.
SB318,75,7
3(3) Hearing. The court shall hold a hearing within 90 days of the determination
4that the petition contains facts from which the court or jury may conclude that the
5person does not meet the criteria for commitment as a sexually violent person. The
6state has the burden of proving by clear and convincing evidence that the person
7meets the criteria for commitment as a sexually violent person.
SB318,75,13
8(4) Disposition. If the court or jury is satisfied that the state has not met its
9burden of proof under sub. (3), the petitioner shall be discharged from the custody
10of the department. If the court or jury is satisfied that the state has met its burden
11of proof under sub. (3), the court may proceed under s. 980.07 (7) (b) to (d) to
12determine whether to modify the petitioner's existing commitment order by
13authorizing 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
1Section
119
. 980.095 of the statutes is created to read:
SB318,76,6
2980.095 Procedures for discharge hearings. (1) Use of juries. (a) The
3district attorney or the department of justice, whichever filed the original petition,
4or the petitioner or his or her attorney may request that a hearing under s. 980.093
5be to a jury of 6. A jury trial is deemed waived unless it is demanded within 10 days
6of the filing of the petition for discharge.
SB318,76,137
(b) Juries shall be selected and treated in the same manner as they are selected
8and treated in civil actions in circuit court. The number of jurors prescribed in par.
9(a), plus the number of peremptory challenges available to all of the parties, shall be
10called initially and maintained in the jury box by calling others to replace jurors
11excused for cause until all jurors have been examined. The parties shall exercise in
12their order, the state beginning, the peremptory challenges available to them, and
13if any party declines to challenge, the challenge shall be made by the clerk by lot.
SB318,77,2
1(c) No verdict shall be valid or received unless at least 5 of the jurors agree to
2it.
SB318,77,7
3(2) Department's right to be heard. The department of justice shall represent
4the department of health and family services at any discharge hearing unless the
5departments have adverse interest. If the departments have adverse interests, the
6department of health and family services shall be represented at the hearing by its
7agency counsel or an attorney that it retains.
SB318,77,9
8(3) Post verdict motions. Motions after verdict may be made without further
9notice upon receipt of the verdict.
SB318,77,11
10(4) Appeals. Any party may appeal an order under this subsection as a final
11order 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
.
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
13Section
121. 980.101 (2) (a) of the statutes is amended to read:
SB318,78,214
980.101
(2) (a) If the sexually violent offense was the sole basis for the
15allegation under s. 980.02 (2) (a) and there are no other judgments relating to a
16sexually violent offense committed by the person, the court shall reverse, set aside,
17or vacate the judgment under s. 980.05 (5) that the person is a sexually violent
1person, vacate the commitment order, and discharge the person from the custody
or
2supervision of the department.
SB318, s. 122
3Section
122. 980.11 (2) (intro.) of the statutes is amended to read:
SB318,78,64
980.11
(2) (intro.) If the court places a person on supervised release under s.
5980.08 or discharges a person under s. 980.09
(3) or
980.10 980.093, the department
6shall do all of the following:
SB318, s. 123
7Section
123. 980.12 (1) of the statutes is amended to read:
SB318,78,118
980.12
(1) Except as provided in ss.
980.03 (4) 980.031 (3) and
980.08 (3)
980.07
9(1) (a), the department shall pay from the appropriations under s. 20.435 (2) (a) and
10(bm) for all costs relating to the evaluation, treatment
, and care of persons evaluated
11or committed under this chapter.
SB318, s. 124
12Section
124
. 980.14 (title) of the statutes is created to read:
SB318,78,13
13980.14 (title)
Immunity.
SB318, s. 125
14Section
125
. 980.14 (1) of the statutes is created to read:
SB318,78,1715
980.14
(1) In this section, "agency" means the department of corrections, the
16department of health and family services, the department of justice, or a district
17attorney.
Note: See the Note to Section 77.
SB318,78,2319
(1) This act first applies to reviews regarding detention and probable cause
20hearings under section 980.04 of the statutes, as affected by this act, and trials under
21section 980.05 of the statutes, as affected by this act, that are based on a petition filed
22under s. 980.02 of the statutes, as affected by this act, on the effective date of this
23subsection.
SB318,79,3
1(2) This act first applies to periodic reexaminations conducted under section
2980.07 of the statutes, as affected by this act, begun on the effective date of this
3subsection and to court proceedings resulting from those reexaminations.
SB318,79,94
(3) This act first applies to proceedings to revoke supervised release under
5section 980.08 (5) of the statutes, as affected by this act, that are commenced on the
6effective date of this subsection, except that the treatment of section 980.08 (5) of the
7statutes, with respect to where a person may be detained while a petition to revoke
8supervised release is pending, first applies to a person whose detention commences
9on the effective date of this subsection.
SB318,79,1110
(4) This act first applies to discharge proceedings commenced on the effective
11date of this subsection.
SB318,79,1413
(1) This act takes effect on the first day of the 2nd month beginning after
14publication.