SB318: Bill Text

Note: See the Note to Section 40.

SB318, s. 40 Section 40 . 938.396 (2) (e) of the statutes is renumbered 938.396 (10) and amended to read:

SB318,29,8 938.396 (10) Upon request of the department of corrections to review court A law enforcement agency's records and records for the purpose of providing, under s. 980.015 (3) (a) of the court assigned to exercise jurisdiction under this chapter and ch. 48 shall be open for inspection by authorized representatives of the department of corrections, the department of health and family services, the department of justice, or a district attorney with a person's offense history, the court shall open for inspection by authorized representatives of the department of corrections the records of the court relating to any juvenile who has been adjudicated delinquent for a sexually violent offense, as defined in s. 980.01 (6) for use in the prosecution of any proceeding or any evaluation conducted under ch. 980, if the records involve or relate to an individual who is the subject of the proceeding or evaluation. The court in which the proceeding under ch. 980 is pending may issue any protective orders that it determines are appropriate concerning information made available or disclosed under this subsection. Any representative of the department of corrections, the department of health and family services, the department of justice, or a district attorney may disclose information obtained under this subsection for any purpose consistent with any proceeding under ch. 980.

Note: Makes law enforcement records relating to juveniles accessible in SVP proceedings as described in the Note to Section 5.

SB318, s. 41 Section 41 . 938.396 (5) (a) (intro.) of the statutes is amended to read:

SB318,29,13 938.396 (5) (a) (intro.) Any person who is denied access to a record under sub. (1), (1b), (1d), (1g), (1m), (1r) or, (1t), or (10) may petition the court to order the disclosure of the records governed by the applicable subsection. The petition shall be in writing and shall describe as specifically as possible all of the following:

SB318, s. 42 Section 42 . 938.78 (2) (e) of the statutes is amended to read:

SB318,30,6 938.78 (2) (e) Paragraph (a) does not prohibit the department from disclosing Notwithstanding par. (a), an agency shall, upon request, disclose information about an individual adjudged delinquent under s. 938.183 or 938.34 for a sexually violent offense, as defined in s. 980.01 (6), to authorized representatives of the department of corrections, the department of health and family services, the department of justice, or a district attorney or a judge acting under ch. 980 or to an attorney who represents a person subject to a petition for use in the prosecution of any proceeding or any evaluation conducted under ch. 980, if the information involves or relates to an individual who is the subject of the proceeding or evaluation. The court in which the petition proceeding under s. 980.02 is filed ch. 980 is pending may issue any protective orders that it determines are appropriate concerning information disclosed under this paragraph. Any representative of the department of corrections, the department of health and family services, the department of justice, or a district attorney may disclose information obtained under this paragraph for any purpose consistent with any proceeding under ch. 980.

Note: Makes specified juvenile records accessible in SVP proceedings as described in the Note to Section 5.

SB318, s. 43 Section 43. 940.20 (1g) of the statutes is created to read:

SB318,30,11 940.20 (1g) Battery by certain committed persons. Any person placed in a facility under s. 980.065 and who intentionally causes bodily harm to an officer, employee, agent, visitor, or other resident of the facility, without his or her consent, is guilty of a Class H felony.

Note: Creates s. 940.20 (1g) to provide that an SVP who has been committed under ch. 980 and who intentionally causes bodily harm to an officer, employee, agent, visitor, or other resident of the facility, without his or her consent, is guilty of a Class H felony. The term "bodily harm" is defined in s. 939.22 (4), stats., to mean physical pain or injury, illness, or any impairment of physical condition. A Class H felony is punishable by a fine not to exceed $10,000 or a term of confinement and extended supervision not to exceed 6 years, or both. The crime created in this provision is comparable to the crimes of battery by prisoners and battery to law enforcement officers and fire fighters; probation, extended supervision and parole agents and aftercare agents; and emergency medical care providers. [See s. 940.20 (1), (2), (2m), and (7), stats.]

SB318, s. 44 Section 44 . 946.42 (1) (a) of the statutes is amended to read:

SB318,31,12 946.42 (1) (a) "Custody" includes without limitation actual custody of an institution, including a secured correctional facility, as defined in s. 938.02 (15m), a secured child caring institution, as defined in s. 938.02 (15g), a secured group home, as defined in s. 938.02 (15p), a secure detention facility, as defined in s. 938.02 (16), a Type 2 child caring institution, as defined in s. 938.02 (19r), a facility used for the detention of persons detained under s. 980.04 (1), a facility specified in s. 980.065, or a juvenile portion of a county jail, or actual custody of a peace officer or institution guard. "Custody" also includes the constructive custody of persons placed on supervised release under ch. 980 and constructive custody of prisoners and juveniles subject to an order under s. 48.366, 938.183, 938.34 (4d), (4h) or (4m) or 938.357 (4) or (5) (e) temporarily outside the institution whether for the purpose of work, school, medical care, a leave granted under s. 303.068, a temporary leave or furlough granted to a juvenile or otherwise. Under s. 303.08 (6) it means, without limitation, that of the sheriff of the county to which the prisoner was transferred after conviction. It does not include the custody of a probationer, parolee or person on extended supervision by the department of corrections or a probation, extended supervision or parole officer or the custody of a person who has been released to aftercare supervision under ch. 938 unless the person is in actual custody or is subject to a confinement order under s. 973.09 (4).

Note: See the Note to Section 45.

SB318, s. 45 Section 45 . 946.42 (3m) of the statutes is created to read:

SB318,31,15 946.42 (3m) A person who intentionally escapes from custody under any of the following circumstances is guilty of a Class F felony:

SB318,31,17 (a) While subject to a detention order under s. 980.04 (1) or a custody order under s. 980.04 (3).

SB318,31,20 (b) While subject to an order issued under s. 980.06 committing the person to custody of the department of health and family services, regardless of whether the person is placed in institutional care or on supervised release.

Note: Revises Sections 44 and 45 , the current crime relating to a person in custody who intentionally escapes from custody (a Class H felony, punishable by a fine not to exceed $10,000 and a term of imprisonment and extended supervision not to exceed 6 years). Under current law, "custody" is defined as actual custody in an institution, including a secure juvenile facility, but does not include the custody of a probationer, parolee, or person on extended supervision unless the person is in actual custody.

The bill:

1. Modifies [in Section 44 ] the definition of "custody" to include: (a) actual custody in a facility used for the detention of persons committed as SVPs; and (b) without limitation the constructive custody of a person placed on supervised release.

2. Specifies [in Section 45 ] that a person who intentionally escapes from custody under the following circumstances is guilty of a Class F felony (punishable by a fine not to exceed $25,000 and a term of imprisonment and extended supervision not to exceed 12 years and 6 months):

(a) While subject to a detention or custody order pending a petition to commit the person as an SVP.

(b) While subject to an order committing the person to custody of DHFS, regardless of whether the person is placed in institutional care or on supervised release.

SB318, s. 46 Section 46. 950.04 (1v) (xm) of the statutes is amended to read:

SB318,32,4 950.04 (1v) (xm) To have the department of health and family services make a reasonable attempt to notify the victim under s. 980.11 regarding supervised release under s. 980.08 and discharge under s. 980.09 (3) or 980.10 980.093.

SB318, s. 47 Section 47. 967.03 of the statutes is amended to read:

SB318,32,8 967.03 District attorneys. Wherever in chs. 967 to 979 980 powers or duties are imposed upon district attorneys, the same powers and duties may be discharged by any of their duly qualified deputies or assistants.

SB318, s. 48 Section 48. 972.15 (4) of the statutes is amended to read:

SB318,32,13 972.15 (4) After sentencing, unless otherwise authorized under sub. (5) or (6) or ordered by the court, the presentence investigation report shall be confidential and shall not be made available to any person except upon specific authorization of the court.

SB318, s. 49 Section 49 . 972.15 (6) of the statutes is created to read:

SB318,32,18 972.15 (6) The presentence investigation report and any information contained in it or upon which it is based may be used by any of the following persons in any evaluation, examination, referral, hearing, trial, postcommitment relief proceeding, appeal, or other proceeding under ch. 980:

SB318,32,19 (a) The department of corrections.

SB318,33,1 (b) The department of health and family services.

SB318,33,3 (c) The person who is the subject of the presentence investigation report, his or her attorney, or an agent or employee of the attorney.

SB318,33,4 (d) The attorney representing the state or an agent or employee of the attorney.

SB318,33,6 (e) A licensed physician, licensed psychologist, or other mental health professional who is examining the subject of the presentence investigation report.

SB318,33,7 (f) The court and, if applicable, the jury hearing the case.

Note: Revises the current law specifying that, after a conviction, the court may order a presentence investigation, and, if ordered, it must be disclosed to the defendant's attorney (or the defendant, if unrepresented) and the DA prior to sentencing. The DOC may use the investigation report for correctional programming, parole consideration, or care and treatment.

The bill creates new s. 972.15 (6), permitting the presentence investigation report and any information contained in it or upon which it is based to be used by any of the following agencies or persons in any evaluation, examination, referral, hearing, trial, post commitment relief proceeding, appeal, or other SVP proceeding: (1) DOC and DHFS; (2) the person who is the subject of the presentence investigation report and his or her attorney; (3) the attorney representing the state or an agent or employee of the attorney; (4) a physician, psychologist, or other mental health professional who is examining the subject of the report; and (5) the court and, if applicable, the jury hearing the case.

SB318, s. 50 Section 50. 973.155 (1) (c) of the statutes is created to read:

SB318,33,12 973.155 (1) (c) The categories in par. (a) include time during which the convicted offender was in the custody of the department of health and family services under ch. 980 only if the offender was confined during that time and the confinement and the offender's conviction resulted from the same course of conduct.

Note: Creates s. 973.155 (1) (c), relating to allowing sentence credit time for a convicted offender who was in the custody of the DHFS under ch. 980 if the offender was confined during that time and the confinement and the offender's conviction resulted from the same course of conduct.

SB318, s. 51 Section 51. 978.03 (3) of the statutes, as affected by 2005 Wisconsin Act 25, is amended to read:

SB318,34,4 978.03 (3) Any assistant district attorney under sub. (1), (1m), or (2) must be an attorney admitted to practice law in this state and, except as provided in s. 978.043 (1), may perform any duty required by law to be performed by the district attorney. The district attorney of the prosecutorial unit under sub. (1), (1m), or (2) may appoint such temporary counsel as may be authorized by the department of administration.

SB318, s. 52 Section 52. 978.04 of the statutes is amended to read:

SB318,34,12 978.04 Assistants in certain prosecutorial units. The district attorney of any prosecutorial unit having a population of less than 100,000 may appoint one or more assistant district attorneys as necessary to carry out the duties of his or her office and as may be requested by the department of administration authorized in accordance with s. 16.505. Any such assistant district attorney must be an attorney admitted to practice law in this state and, except as provided in s. 978.043 (1), may perform any duty required by law to be performed by the district attorney.

SB318, s. 53 Section 53. 978.043 of the statutes is renumbered 978.043 (1) and amended to read.

SB318,34,24 978.043 (1) The district attorney of the prosecutorial unit that consists of Brown County and the district attorney of the prosecutorial unit that consists of Milwaukee County shall each assign one assistant district attorney in his or her prosecutorial unit to be a sexually violent person commitment prosecutor. An assistant district attorney assigned under this section subsection to be a sexually violent person commitment prosecutor may engage only in the prosecution of sexually violent person commitment proceedings under ch. 980 and, at the request of the district attorney of the prosecutorial unit, may file and prosecute sexually violent person commitment proceedings under ch. 980 in any prosecutorial unit in this state.

SB318, s. 54 Section 54 . 978.043 (2) of the statutes is created to read:

SB318,35,8 978.043 (2) If an assistant district attorney assigned under sub. (1) prosecutes or assists in the prosecution of a case under ch. 980 in a prosecutorial unit other than his or her own, the prosecutorial unit in which the case is heard shall reimburse the assistant district attorney's own prosecutorial unit for his or her reasonable costs associated with the prosecution, including transportation, lodging, and meals. Unless otherwise agreed upon by the prosecutorial units involved, the court hearing the case shall determine the amount of money to be reimbursed for expert witness fees under this subsection.

Note: Creates a new provision specifying that if an assistant DA prosecutes or assists in the prosecution of an SVP case in another prosecutorial unit, the prosecutorial unit in which the case is heard must reimburse the assistant DA's own prosecutorial unit for his or her reasonable costs associated with the prosecution, including transportation, lodging, and meals. Current law requires the DA in Brown County and the DA in Milwaukee County to each assign one assistant DA to be an SVP commitment prosecutor, and specifies that those assistant DAs may file and prosecute SVP commitment proceedings in any prosecutorial unit in the state.

SB318, s. 55 Section 55. 978.045 (1r) (intro.) of the statutes is amended to read:

SB318,35,18 978.045 (1r) (intro.) Any judge of a court of record, by an order entered in the record stating the cause therefor for it, may appoint an attorney as a special prosecutor to perform, for the time being, or for the trial of the accused person, the duties of the district attorney. An attorney appointed under this subsection shall have all of the powers of the district attorney. The judge may appoint an attorney as a special prosecutor at the request of a district attorney to assist the district attorney in the prosecution of persons charged with a crime, in grand jury or John Doe proceedings, in proceedings under ch. 980, or in investigations. The judge may appoint an attorney as a special prosecutor if any of the following conditions exists:

SB318, s. 56 Section 56. 978.05 (6) (a) of the statutes is amended to read:

SB318,36,11 978.05 (6) (a) Institute, commence or appear in all civil actions or special proceedings under and perform the duties set forth for the district attorney under ch. 980 and ss. 17.14, 30.03 (2), 48.09 (5), 59.55 (1), 59.64 (1), 70.36, 103.50 (8), 103.92 (4), 109.09, 343.305 (9) (a), 453.08, 806.05, 938.09, 938.18, 938.355 (6) (b) and (6g) (a), 946.86, 946.87, 961.55 (5), 971.14 and 973.075 to 973.077, perform any duties in connection with court proceedings in a court assigned to exercise jurisdiction under chs. 48 and 938 as the judge may request and perform all appropriate duties and appear if the district attorney is designated in specific statutes, including matters within chs. 782, 976 and 979 and ss. 51.81 to 51.85. Nothing in this paragraph limits the authority of the county board to designate, under s. 48.09 (5), that the corporation counsel provide representation as specified in s. 48.09 (5) or to designate, under s. 48.09 (6) or 938.09 (6), the district attorney as an appropriate person to represent the interests of the public under s. 48.14 or 938.14.

SB318, s. 57 Section 57. 978.05 (8) (b) of the statutes, as affected by 2005 Wisconsin Act 25, is amended to read:

SB318,36,23 978.05 (8) (b) Hire, employ, and supervise his or her staff and, subject to s. 978.043 (1), make appropriate assignments of the staff throughout the prosecutorial unit. The district attorney may request the assistance of district attorneys, deputy district attorneys, or assistant district attorneys from other prosecutorial units or assistant attorneys general who then may appear and assist in the investigation and prosecution of any matter for which a district attorney is responsible under this chapter in like manner as assistants in the prosecutorial unit and with the same authority as the district attorney in the unit in which the action is brought. Nothing in this paragraph limits the authority of counties to regulate the hiring, employment, and supervision of county employees.

SB318, s. 58 Section 58. 978.13 (2) of the statutes is renumbered 978.13 (2) (b).

SB318, s. 59 Section 59. 978.13 (2) (a) of the statutes is created to read:

SB318,37,4 978.13 (2) (a) In this subsection, "costs related to the operation of the district attorney's office" include costs that a prosecutorial unit must pay under s. 978.043 (2) but do not include costs for which a prosecutorial unit receives reimbursement under s. 978.043 (2).

Note: See the Note to Section 54.

SB318, s. 60 Section 60. 980.01 (1) of the statutes is renumbered 980.01 (1h).

SB318, s. 61 Section 61 . 980.01 (1b) of the statutes is created to read:

SB318,37,8 980.01 (1b) "Act of sexual violence" means conduct that constitutes the commission of a sexually violent offense.

Note: Creates a new provision [s. 980.01 (1b)] defining "act of sexual violence" to mean conduct that constitutes the commission of an SVO. Under current law, one part of the definition of "sexually violent person" is that the person is dangerous because he or she suffers from a mental disorder that makes it likely that the person will engage in "acts of sexual violence."

SB318, s. 62 Section 62 . 980.01 (1j) of the statutes is created to read:

SB318,37,14 980.01 (1j) "Incarceration" includes confinement in a secured correctional facility, as defined in s. 938.02 (15m), or a secured child caring institution, as defined in s. 938.02 (15g), or a secured group home, as defined in s. 938.02 (15p), if the person was placed in the facility for being adjudicated delinquent under s. 48.34, 1993 stats., or under s. 938.183 or 938.34 on the basis of a sexually violent offense.

Note: Defines "incarceration" to include confinement in a juvenile facility if the person was placed in the facility for being adjudicated delinquent on the basis of an SVO.

SB318, s. 63 Section 63. 980.01 (3) of the statutes is created to read:

SB318,37,17 980.01 (3) Except in ss. 980.09, 980.093, and 980.095, "petitioner" means the agency or person that filed a petition under s. 980.02.

SB318, s. 64 Section 64. 980.01 (5) of the statutes is amended to read:

SB318,38,3 980.01 (5) "Sexually motivated" means that one of the purposes for an act is for the actor's sexual arousal or gratification or for the sexual humiliation or degradation of the victim.

Note: Revises the definition of "sexually motivated" for purposes of ch. 980. Under the bill, "sexually motivated" means that one of the purposes for an act is for the actor's sexual arousal or gratification or for the sexual humiliation or degradation of the victim. Current law specifies that "sexually motivated" means that one of the purposes for an act is for the actor's sexual arousal or gratification.

SB318, s. 65 Section 65 . 980.01 (6) (a) of the statutes is amended to read:

SB318,38,6 980.01 (6) (a) Any crime specified in s. 940.225 (1) or, (2), or (3), 948.02 (1) or (2), 948.025, 948.06, or 948.07.

SB318, s. 66 Section 66. 980.01 (6) (am) of the statutes is created to read:

SB318,38,9 980.01 (6) (am) An offense that, prior to June 2, 1994, was a crime under the law of this state and that is comparable to any crime specified in par. (a).

SB318, s. 67 Section 67. 980.01 (6) (b) of the statutes is amended to read:

SB318,38,14 980.01 (6) (b) Any crime specified in s. 940.01, 940.02, 940.03, 940.05, 940.06, 940.19 (4) or (5), 940.195 (4) or (5), 940.30, 940.305, 940.31 or, 941.32, 943.10, 943.32, or 948.03 that is determined, in a proceeding under s. 980.05 (3) (b), to have been sexually motivated.

SB318, s. 68 Section 68 . 980.01 (6) (bm) of the statutes is created to read:

SB318,38,18 980.01 (6) (bm) An offense that, prior to June 2, 1994, was a crime under the law of this state, that is comparable to any crime specified in par. (b) and that is determined, in a proceeding under s. 980.05 (3) (b), to have been sexually motivated.

Note: Revises [in Sections 65 to 68 ] the definition of "sexually violent offense" in ch. 980 to:

1. Add 3rd-degree sexual assault to the list of sexually violent offenses. Under current law, "sexually violent offense" means first- or 2nd-degree sexual assault, first- or 2nd-degree sexual assault of a child, incest with a child, or child enticement. In addition, "sexually violent offense" includes first- or 2nd-degree intentional homicide, first- or 2nd-degree reckless homicide, aggravated battery, aggravated battery to an unborn child, false imprisonment, taking hostages, kidnapping, or burglary if determined to be sexually motivated.

2. Add felony murder, administering a dangerous or stupefying drug, robbery, and physical abuse of a child to the list of sexually violent offenses if such an offense is determined to be sexually motivated.

3. Expand the list of sexually violent offenses to include comparable crimes committed prior to June 2, 1994.

SB318, s. 69 Section 69. 980.01 (6) (c) of the statutes is amended to read:

SB318,39,3 980.01 (6) (c) Any solicitation, conspiracy, or attempt to commit a crime under par. (a) or, (am), (b), or (bm).