2005 Wisconsin Act 434

(b) In addition to or in place 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).

(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.

(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.

434,94 Section 94 . 980.038 of the statutes is created to read:

980.038 Miscellaneous procedural provisions. (1) Motions challenging jurisdiction or competency of court or timeliness of petition. (a) A motion challenging the jurisdiction or competency of the court or the timeliness of a petition filed under s. 980.02 shall be filed within 30 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 or competency of the court or the timeliness of a petition filed under s. 980.02.

(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 the person has not had a probable cause hearing under s. 980.04 (2).

(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 for the purpose of evaluating whether to file a petition before the petition under s. 980.02 was filed.

(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.

(3) Testimony by telephone or live audiovisual means. Unless good cause to the contrary is shown, proceedings under ss. 980.04 (2) (a) and 980.08 (7) (d) may be conducted by telephone or audiovisual means, if available. If the proceedings are required to be reported under SCR 71.02 (2), the proceedings shall be reported by a court reporter who is in simultaneous voice communication with all parties to the proceeding. Regardless of the physical location of any party to the telephone call, any action taken by the court or any party has the same effect as if made in open court. A proceeding under this subsection shall be conducted in a courtroom or other place reasonably accessible to the public. Simultaneous access to the proceeding shall be provided to a person entitled to attend by means of a loudspeaker or, upon request to the court, by making the person party to the telephone call without charge.

(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 s. 980.06 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.

(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.

(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.

(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.

434,95 Section 95. 980.04 (1) of the statutes is amended to read:

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.

434,96 Section 96. 980.04 (2) of the statutes is renumbered 980.04 (2) (a) and amended to read:

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

(b) 1. Except as provided in subd. 2., 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.

434,97 Section 97 . 980.04 (2) (b) 2. of the statutes is created to read:

980.04 (2) (b) 2. 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.

434,98 Section 98 . 980.04 (3) of the statutes is amended to read:

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.

434,99 Section 99. 980.04 (5) of the statutes is amended to read:

980.04 (5) If the person named in the petition claims or appears to be indigent, the court shall, prior to the probable cause hearing under sub. (2) (a), refer the person to the authority for indigency determinations under s. 977.07 (1) and, if applicable, the appointment of counsel.

434,100 Section 100 . 980.05 (1) of the statutes is amended to read:

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 (2) (a). 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.

434,101 Section 101 . 980.05 (1m) of the statutes is repealed.

434,102 Section 102. 980.05 (2) of the statutes is amended to read:

980.05 (2) The person who is the subject of the petition, the person's attorney, or the department of justice or the district attorney petitioner may request that a trial under this section be to a jury of 12. A request for a jury trial under this subsection shall be made within 10 days after the probable cause hearing under s. 980.04 (2) (a). If no request is made, the trial shall be to the court. The person, the person's attorney, or the district attorney or department of justice, whichever is applicable, petitioner may withdraw his, her, or its request for a jury trial if the 2 persons who did not make the request consent to the withdrawal.

434,103 Section 103 . 980.05 (2m) of the statutes is created to read:

980.05 (2m) (a) At a jury trial under this section, juries shall be selected and treated in the same manner as they are selected and treated in civil actions in circuit court, 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.

(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 of jurors, 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.

(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).

434,104 Section 104 . 980.05 (3) (a) of the statutes is amended to read:

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.

434,105 Section 105. 980.05 (3) (b) of the statutes is amended to read:

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.

434,106 Section 106. 980.07 (title) of the statutes is amended to read:

980.07 (title) Periodic reexamination and treatment progress; report from the department.

434,107 Section 107. 980.07 (1) of the statutes is amended to read:

980.07 (1) If a person has been is committed under s. 980.06 and has not been discharged under s. 980.09 (4), the department shall appoint an examiner to conduct an examination a reexamination of his or her the person's mental condition within 6 12 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 to determine whether the person has made sufficient progress for the court to consider whether the person should be placed on supervised release or discharged. The examiner shall apply the criteria under s. 980.08 (4) (cg) when considering if the person should be placed on supervised release and shall apply the criteria under s. 980.09 (3) when considering if the person should be 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), except that the court is not required to appoint an examiner if supervised release or discharge is supported by the examination conducted by the examiner appointed by the department. The county shall pay the costs of an examiner appointed by the court as provided under s. 51.20 (18) (a).

434,108 Section 108 . 980.07 (2) of the statutes is amended to read:

980.07 (2) Any examiner conducting an examination a reexamination under this section sub. (1) shall prepare a written report of the examination reexamination no later than 30 days after the date of the examination reexamination. The examiner shall place a copy of the report in the person's medical records and shall provide a copy of the report to the court that committed the person under s. 980.06 department.

434,109 Section 109. 980.07 (3) of the statutes is amended to read:

980.07 (3) Notwithstanding sub. (1), the court that committed a person under s. 980.06 may order a reexamination of the person at any time during the period in which the person is subject to the commitment order. Any reexamination ordered under this subsection shall conform to sub. (1).

434,110 Section 110. 980.07 (4), (5) and (6) of the statutes are created to read:

980.07 (4) At any reexamination under sub. (1), the treating professional shall prepare a treatment progress report. The treating professional shall provide a copy of the treatment progress report to the department. The treatment progress report shall consider all of the following:

(a) The specific factors associated with the person's risk for committing another sexually violent offense.

(b) Whether the person has made significant progress in treatment or has refused treatment.

(c) The ongoing treatment needs of the person.

(d) Any specialized needs or conditions associated with the person that must be considered in future treatment planning.

(5) Any examiners under sub. (1) and treating professionals under sub. (4) shall have reasonable access to the person for purposes of reexamination, to the person's past and present treatment records, as defined in s. 51.30 (1) (b), and to the person's patient health care records, as provided under s. 146.82 (2) (c).

(6) The department shall submit an annual report comprised of the reexamination report under sub. (1) and the treatment progress report under sub. (4) to the court that committed the person under s. 980.06. A copy of the annual report shall be placed in the person's treatment records. The department shall provide a copy of the annual report to the person committed under s. 980.06, the department of justice, and the district attorney, if applicable. The court shall provide a copy of the annual report to the person's attorney as soon as he or she is retained or appointed.

434,110m Section 110m. 980.07 (6m) of the statutes is created to read:

980.07 (6m) If a person committed under s. 980.06 is incarcerated at a county jail, state correctional institution, or federal correction institution for a new criminal charge or conviction or because his or her parole was revoked, any reporting requirement under sub. (1), (4), or (6) does not apply during the incarceration period. A court may order a reexamination of the person under sub. (3) if the courts finds reexamination to be necessary. The schedule for reporting established under sub. (1) shall resume upon the release of the person.

434,111 Section 111. 980.075 of the statutes is created to read:

980.075 Patient petition process. (1) When the department submits its report to the court under s. 980.07 (6), the person who has been committed under s. 980.06 may retain or have the court appoint an attorney as provided in s. 980.03 (2) (a).

(1m) (a) When the department provides a copy of the report under s. 980.07 (6) to the person who has been committed under s. 980.06, the department shall provide to the person a standardized petition form for supervised release under s. 980.08 and a standardized petition form for discharge under s. 980.09.

(b) The department shall, after consulting with the department of justice and the state public defender, develop the standardized petition forms required under par. (a).

(2) (a) Within 30 days after the department submits its report to the court under s. 980.07 (6), the person who has been committed under s. 980.06 or his or her attorney may submit one of the completed forms provided under sub. (1m) to the court to initiate either a petition for supervised release or a petition for discharge.

(b) If no completed petition is filed in a timely manner under par. (a), the person who has been committed under s. 980.06 will remain committed and the person's placement at a facility described under s. 980.065 or the person's supervised release status under s. 980.08 remains in effect without review by the court.

(3) If the person files a petition for discharge under s. 980.09 without counsel, the court shall serve a copy of the petition and any supporting documents on the district attorney or department of justice, whichever is applicable. If the person petitions for discharge under s. 980.09 through counsel, his or her attorney shall serve the district attorney or department of justice, whichever is applicable.

(4) (a) The petitioner may use experts or professional persons to support his or her petition.

(b) The district attorney or the department of justice may use experts or professional persons to support or oppose any petition.

(5) Subject to s. 980.03 (2) (a), before proceeding under s. 980.08 or 980.09 but as soon as circumstances permit, 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) if the person is not represented by counsel.

(6) At any time before a hearing under s. 980.08 or 980.09, the department may file a supplemental report if the department determines that court should have additional information.

434,112 Section 112 . 980.08 (title) of the statutes is repealed and recreated to read:

980.08 (title) Supervised release; procedures, implementation, revocation.

434,113 Section 113. 980.08 (1) of the statutes is amended to read:

980.08 (1) Any person who is committed under s. 980.06 may petition the committing court to modify its order by authorizing supervised release if at least 18 12 months have elapsed since the initial commitment order was entered or at least 6 12 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 file a petition under this subsection on the person's behalf at any time.

434,114 Section 114. 980.08 (3) of the statutes is amended to read:

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 person and furnish a written report of the examination to the court within 30 days after appointment. The examiners 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). If any such examiner believes that the person is appropriate for supervised release under the criteria specified in sub. (4) (b) (cg), 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).

434,115 Section 115. 980.08 (4) (a) of the statutes is amended to read:

980.08 (4) (a) The court, without a jury, shall hear the petition within 30 days after the report of the court-appointed examiner is filed with the court, unless the petitioner waives court for good cause extends this time limit. Expenses of proceedings under this subsection shall be paid as provided under s. 51.20 (18) (b), (c), and (d).

434,116 Section 116. 980.08 (4) (b) of the statutes is repealed.

434,117 Section 117. 980.08 (4) (c) of the statutes is amended to read:

980.08 (4) (c) In making a decision under par. (b) (cg), 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 par. (b) (cg) 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.

434,118 Section 118. 980.08 (4) (cg) of the statutes is created to read:

980.08 (4) (cg) The court may not authorize supervised release unless, based on all of the reports, trial records, and evidence presented, the court finds that all of the following criteria are met:

1. The person has made significant progress in treatment and the person's progress can be sustained while on supervised release.

2. It is substantially probable that the person will not engage in an act of sexual violence while on supervised release.

3. Treatment that meets the person's needs and a qualified provider of the treatment are reasonably available.

4. The person can be reasonably expected to comply with his or her treatment requirements and with all of his or her conditions or rules of supervised release that are imposed by the court or by the department.

5. A reasonable level of resources can provide for the level of residential placement, supervision, and ongoing treatment needs that are required for the safe management of the person while on supervised release.

434,119 Section 119. 980.08 (4) (cm) of the statutes is created to read:

980.08 (4) (cm) If the court finds that all of the criteria in par. (cg) are met, the court shall select a county to prepare a report under par. (e). Unless the court has good cause to select another county, the court shall select the person's county of residence as determined by the department under s. 980.105. The court may not select a county where there is a facility in which persons committed to institutional care under this chapter are placed unless that county is also that person's county of residence.

434,120 Section 120. 980.08 (4) (d), (e), (f) and (g) of the statutes are created to read:

980.08 (4) (d) The court shall authorize the petitioner, the person's attorney, the district attorney, any law enforcement agency in the county of intended placement, and any local governmental unit in the county of intended placement to submit prospective residential options for community placement to the department within 60 days following the selection of the county under par. (cm).

(e) The court shall order the county department under s. 51.42 in the county of intended placement to prepare a report, either independently or with the department of health and family services, identifying prospective residential options for community placement. In identifying prospective residential options, the county department shall 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 the department of corrections and regarding whom a sex offender notification bulletin has been issued to law enforcement agencies under s. 301.46 (2m) (a) or (am). The county department shall submit its report to the department within 60 days following the court order.