SB318: Bill Text

SB318, s. 74 Section 74. 980.015 (2) (b) of the statutes is amended to read:

SB318,40,20 980.015 (2) (b) The anticipated release from 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), of a if the person was placed in the facility as a result of 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.

SB318, s. 75 Section 75. 980.015 (2) (c) of the statutes is amended to read:

SB318,41,5 980.015 (2) (c) The anticipated release of a person on conditional release under s. 971.17, the anticipated termination of a commitment order under 971.17, or the anticipated discharge of a person from a commitment order under s. 971.17, if the person who has been found not guilty of a sexually violent offense by reason of mental disease or defect under s. 971.17.

SB318, s. 76 Section 76 . 980.015 (2) (d) of the statutes is created to read:

SB318,41,8 980.015 (2) (d) The anticipated release on parole or discharge of a person committed under ch. 975 for a sexually violent offense.

Note: See the Note to Section 62.

SB318, s. 77 Section 77 . 980.015 (4) of the statutes is renumbered 980.14 (2) and amended to read:

SB318,41,13 980.14 (2) Any agency or officer, employee, or agent of an agency is immune from criminal or civil liability for any acts or omissions as the result of a good faith effort to comply with any provision of this section chapter.

Note: Revises s. 980.14 (2), stats., as renumbered, to provide that any agency or officer, employee, or agent of an agency is immune from criminal or civil liability for any acts or omissions as the result of a good faith effort to comply with any provision of ch. 980, stats. ("Agency" means DOC, DHFS, DOJ, or a DA. (See Section 124) Current law specifies that any agency or officer, employee, or agent of an agency is immune from criminal or civil liability for any acts or omissions as the result of a good faith effort to comply with the requirement that an agency notify the DA or DOJ of the anticipated release or discharge of a person who may be an SVP. See, also, Section 125.

SB318, s. 78 Section 78 . 980.02 (1) (a) of the statutes is amended to read:

SB318,41,18 980.02 (1) (a) The department of justice at the request of the agency with jurisdiction, as defined in s. 980.015 (1), over the person. If the department of justice decides to file a petition under this paragraph, it shall file the petition before the date of the release or discharge of the person.

Note: See the Note to Section 80.

SB318, s. 79 Section 79 . 980.02 (1) (b) 3. of the statutes is created to read:

SB318,42,4 980.02 (1) (b) 3. The county in which the person is in custody under a sentence, a placement to 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 a commitment order.

Note: Revises current law specifying that: (1) DOJ may file a petition to commit a person as an SVP at the request of the agency with the authority or duty to release or discharge the person; and (2) if DOJ does not file a petition, the DA for the county in which the person was convicted, adjudicated delinquent, or found not guilty by reason of insanity or mental disease, defect, or illness, or the county in which the person will reside, may file the petition.

The bill in this Section and Sections 35 and 83 : (1) permits the DA of the county in which the person is in custody to file the petition; (2) specifies that a juvenile court does not have jurisdiction over a petition involving a child; and (3) eliminates filing fees.

SB318, s. 80 Section 80 . 980.02 (1m) of the statutes is created to read:

SB318,42,7 980.02 (1m) A petition filed under this section shall be filed before the person is released or discharged.

Note: Creates s. 980.02 (1m), specifying that any SVP petition, not only a petition filed by DOJ under current law, must be filed before the person is released or discharged.

SB318, s. 81 Section 81. 980.02 (2) (ag) of the statutes is repealed.

Note: Repeals s. 980.02 (2) (ag), stats., providing that the petition may be filed only if the person is within 90 days of discharge or release or other specified circumstances apply.

SB318, s. 82 Section 82. 980.02 (4) (intro.) of the statutes is amended to read:

SB318,42,11 980.02 (4) (intro.) A petition under this section shall be filed in any one of the following:

SB318, s. 83 Section 83 . 980.02 (6) of the statutes is created to read:

SB318,42,15 980.02 (6) A court assigned to exercise jurisdiction under chs. 48 and 938 does not have jurisdiction over a petition filed under this section alleging that a child is a sexually violent person.

Note: See the Note to Section 78.

SB318, s. 84 Section 84. 980.03 (2) (intro.) of the statutes is amended to read:

SB318,43,3 980.03 (2) (intro.)  Except as provided in ss. 980.09 (2) (a) 980.038 (2) and 980.10 980.093 and without limitation by enumeration, at any hearing under this chapter, the person who is the subject of the petition has the right to:

SB318, s. 85 Section 85. 980.03 (3) of the statutes is amended to read:

SB318,43,12 980.03 (3) 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 s. 980.05 be to a jury of 12. A request for a jury trial shall be made as provided under s. 980.05 (2). Notwithstanding s. 980.05 (2), if the person, the person's attorney, or the department of justice or the district attorney petitioner does not request a jury trial, the court may on its own motion require that the trial be to a jury of 12. The jury shall be selected as provided under s. 980.05 (2m). A verdict of a jury under this chapter is not valid unless it is unanimous.

SB318, s. 86 Section 86 . 980.03 (4) of the statutes is renumbered 980.031 (3) and amended to read:

SB318,44,2 980.031 (3) Whenever a person who is the subject of a petition filed under s. 980.02 or who has been committed under s. 980.06 is required to submit to an examination of his or her mental condition under this chapter, he or she may retain experts or a licensed physician, licensed psychologist, or other mental health professional persons to perform an examination. If the person is indigent, the court shall, upon the person's request, appoint a qualified and available licensed physician, licensed psychologist, or other mental health professional to perform an examination of the person's mental condition and participate on the person's behalf in a trial or other proceeding under this chapter at which testimony is authorized. Upon the order of the circuit court, the county shall pay, as part of the costs of the action, the costs of a licensed physician, licensed psychologist, or other mental health professional appointed by a court under this subsection to perform an examination and participate in the trial or other proceeding on behalf of an indigent person.

SB318,44,18 (4) If the person a party retains a qualified expert or the court appoints a licensed physician, licensed psychologist, or other mental health professional person of his or her own choice to conduct an examination under this chapter of the person's mental condition, the examiner shall have reasonable access to the person for the purpose of the examination, as well as 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 the person is indigent, the court shall, upon the person's request, appoint a qualified and available expert or professional person to perform an examination and participate in the trial or other proceeding on the person's behalf. Upon the order of the circuit court, the county shall pay, as part of the costs of the action, the costs of an expert or professional person appointed by a court under this subsection to perform an examination and participate in the trial or other proceeding on behalf of an indigent person. An expert (cm), past and present juvenile records, as provided under ss. 48.396 (6), 48.78 (2) (e), 938.396 (10), and 938.78 (2) (e), and the person's past and present correctional records, including presentence investigation reports under s. 972.15 (6).

SB318,45,2 (5) A licensed physician, licensed psychologist, or other mental health professional person appointed to assist an indigent person who is subject to a petition who is expected to be called as a witness by one of the parties or by the court may not be subject to any order by the court for the sequestration of witnesses at any proceeding under this chapter. No licensed physician, licensed psychologist, or other mental health professional who is expected to be called as a witness by one of the parties or by the court may testify at any proceeding under this chapter unless a written report of his or her examination has been submitted to the court and to both parties at least 10 days before the proceeding.

Note: Clarifies that a person who is required to submit to an examination will be submitting to an examination of mental condition and the person may retain a licensed physician, licensed psychologist, or other mental health professional to perform the examination. Further, the expert will have full access to juvenile records and correctional records, as well as treatment records and health care records under current law. Finally, an expert will be allowed to testify only if a written report of the examination has been submitted to the court and to both parties at least 10 days before the proceeding.

SB318, s. 87 Section 87 . 980.03 (5) of the statutes is repealed.

SB318, s. 88 Section 88. 980.031 (title) of the statutes is created to read:

SB318,45,5 980.031 (title) Examinations.

SB318, s. 89 Section 89 . 980.031 (1) and (2) of the statutes are created to read:

SB318,45,10 980.031 (1) If a person who is the subject of a petition filed under s. 980.02 denies the facts alleged in the petition, the court may appoint at least one qualified licensed physician, licensed psychologist, or other mental health professional to conduct an examination of the person's mental condition and testify at trial.

SB318,45,15 (2) The state may retain a licensed physician, licensed psychologist, or other mental health professional to examine the mental condition of a person who is the subject of a petition under s. 980.02 or who has been committed under s. 980.06 and to testify at trial or at any other proceeding under this chapter at which testimony is authorized.

Note: Revises current law specifying that whenever a person who is the subject of a commitment petition or who has been committed as an SVP is required to submit to an examination, he or she may retain experts or professional persons to perform an examination.

The bill creates s. 980.031 (1) and (2) to provide that:

1. If a person who is the subject of a commitment petition denies the facts alleged in the petition, the court may appoint at least one qualified physician, psychologist, or other mental health professional to conduct an examination of the person's mental condition and testify at trial.

2. The state may retain a physician, psychologist, or other mental health professional to: (a) examine the mental condition of a person who is the subject of a commitment petition or who has been committed; and (b) testify at the trial or any other SVP proceeding at which testimony is authorized.

SB318, s. 90 Section 90 . 980.034 of the statutes is created to read:

SB318,46,8 980.034 Change of place of trial or jury from another county. (1) A person who is the subject of a petition filed under s. 980.02 or who has been committed under this chapter may move to change the place of a jury trial under s. 980.05 on the ground that an impartial trial cannot be had in the county in which the trial is set to be held. The motion shall be made within 20 days after the completion or waiver of the probable cause hearing under s. 980.04 (2), whichever is applicable, except that it may be made after that time for cause.

SB318,46,11 (2) The motion shall be in writing and supported by affidavit which shall state evidentiary facts showing the nature of the prejudice alleged. The petitioner may file counter affidavits.

SB318,46,17 (3) If the court determines that there exists in the county where the action is pending such prejudice that a fair trial cannot be had, it shall, except as provided in sub. (4), order that the trial be held in any county where an impartial trial can be had. Only one change may be granted under this subsection. The judge who orders the change in the place of trial shall preside at the trial. Preliminary matters before trial may be conducted in either county at the discretion of the court.

SB318,46,19 (4) (a) Instead of changing the place of trial under sub. (3), the court may require the selection of a jury under par. (b) if all of the following apply:

SB318,46,20 1. The court will sequester the jurors during the trial.

SB318,46,21 2. There are grounds for changing the place of trial under sub. (1).

SB318,46,23 3. The estimated cost to the county of using the procedure under this subsection is less than the estimated cost to the county of holding the trial in another county.

SB318,47,2 (b) A court that proceeds under this subsection shall follow the procedure under sub. (3) until the jury is chosen in the 2nd county. At that time, the proceedings shall return to the original county using the jurors selected in the 2nd county. The original county shall reimburse the 2nd county for all applicable costs under s. 814.22.

Note: Creates new s. 980.034 that: (1) specifies that the general statutory "change of venue" provision does not apply to SVP proceedings; and (2) establishes a change of venue procedure specific to ch. 980 proceedings. Under the bill, the person who is the subject of a commitment petition or who has been committed as an SVP may move for a change of the place of a jury trial on the ground that an impartial jury cannot be had in the county in which the trial is set to be held. If the court determines that there exists in the county such prejudice that a fair trial cannot be had, it must, with one exception, order that the trial be held in any county where an impartial trial can be had. Only one change may be granted and the judge who orders the change in the place of trial must preside over the trial.

Alternatively, instead of changing the place of the trial, the court may order that the jury be selected in another county if all of the following apply:

1. The court will sequester jurors during the trial.

2. There are grounds for changing the place of the trial.

3. The estimated cost to the county of using an alternate jury is less than the estimated cost to the county of changing the place of the trial.

SB318, s. 91 Section 91 . 980.036 of the statutes is created to read:

SB318,47,4 980.036 Discovery and inspection. (1) Definitions. In this section:

SB318,47,6 (a) "Person subject to this chapter" means a person who is subject to a petition filed under s. 980.02 or a person who has been committed under s. 980.06.

SB318,47,8 (b) "Prosecuting attorney" means an attorney representing the state in a proceeding under this chapter.

SB318,47,14 (2) What a prosecuting attorney must disclose to a person subject to this chapter. Upon demand, a prosecuting attorney shall disclose to a person subject to this chapter or his or her attorney, and permit the person subject to this chapter or his or her attorney to inspect and copy or photograph, all of the following materials and information, if the material or information is within the possession, custody, or control of the state:

SB318,48,2 (a) Any written or recorded statement made by the person subject to this chapter concerning the allegations in the petition filed under s. 980.02 or concerning other matters at issue in the trial or proceeding and the names of witnesses to the written statements of the person subject to this chapter.

SB318,48,5 (b) A written summary of all oral statements of the person subject to this chapter that the prosecuting attorney plans to use at the trial or proceeding and the names of witnesses to the oral statements of the person subject to this chapter.

SB318,48,7 (c) Evidence obtained in the manner described under s. 968.31 (2) (b), if the prosecuting attorney intends to use the evidence at the trial or proceeding.

SB318,48,8 (d) A copy of the criminal record of the person subject to this chapter.

SB318,48,11 (e) A list of all witnesses whom the prosecuting attorney intends to call at the trial or proceeding, together with their addresses. This paragraph does not apply to rebuttal witnesses or witnesses called for impeachment only.

SB318,48,13 (f) Any relevant written or recorded statements of a witness listed under par. (e), including all of the following:

SB318,48,14 1. Any videotaped oral statement of a child under s. 908.08.

SB318,48,15 2. Any reports prepared in accordance with s. 980.031 (5).

SB318,48,17 (g) The criminal record of a witness listed under par. (e) that is known to the prosecuting attorney.

SB318,48,22 (h) The results of any physical or mental examination or any scientific or psychological test, instrument, experiment, or comparison that the prosecuting attorney intends to offer in evidence at the trial or proceeding, and any raw data that were collected, used, or considered in any manner as part of the examination, test, instrument, experiment, or comparison.

SB318,48,24 (i) Any physical or documentary evidence that the prosecuting attorney intends to offer in evidence at the trial or proceeding.

SB318,48,25 (j) Any exculpatory evidence.

SB318,49,6 (3) What a person subject to this chapter must disclose to the prosecuting attorney. Upon demand, a person who is subject to this chapter or his or her attorney shall disclose to the prosecuting attorney, and permit the prosecuting attorney to inspect and copy or photograph, all of the following materials and information, if the material or information is within the possession, custody, or control of the person who is subject to this chapter or his or her attorney:

SB318,49,10 (a) A list of all witnesses, other than the person who is subject to this chapter, whom the person who is subject to this chapter intends to call at the trial or proceeding, together with their addresses. This paragraph does not apply to rebuttal witnesses or witnesses called for impeachment only.

SB318,49,12 (b) Any relevant written or recorded statements of a witness listed under par. (a), including any reports prepared in accordance with s. 980.031 (5).

SB318,49,14 (c) The criminal record of a witness listed under par. (a) if the criminal record is known to the attorney for the person who is subject to this chapter.

SB318,49,19 (d) The results of any physical or mental examination or any scientific or psychological test, instrument, experiment, or comparison that the person who is subject to this chapter intends to offer in evidence at the trial or proceeding, and any raw data that were collected, used, or considered in any manner as part of the examination, test, instrument, experiment, or comparison.

SB318,49,21 (e) Any physical or documentary evidence that the person who is subject to this chapter intends to offer in evidence at the trial or proceeding.

SB318,50,3 (3m) When disclosure must be made. A party required to make a disclosure under this section shall do so within a reasonable time after the probable cause hearing and within a reasonable time before a trial under s. 980.05, if the other party's demand is made in connection with a trial. If the demand is made in connection with a proceeding under s. 980.07 (7), 980.09 (2m), or 980.093 (3), the party shall make the disclosure within a reasonable time before the start of that proceeding.

SB318,50,7 (4) Comment or instruction on failure to call witness. No comment or instruction regarding the failure to call a witness at the trial may be made or given if the sole basis for the comment or instruction is the fact that the name of the witness appears upon a list furnished under this section.

SB318,50,11 (5) Testing or analysis of evidence. On motion of a party, the court may order the production of any item of evidence or raw data that is intended to be introduced at the trial for testing or analysis under such terms and conditions as the court prescribes.

SB318,50,20 (6) Protective order. Upon motion of a party, the court may at any time order that discovery, inspection, or the listing of witnesses required under this section be denied, restricted, or deferred, or make other appropriate orders. If the prosecuting attorney or the attorney for a person subject to this chapter certifies that listing a witness under sub. (2) (e) or (3) (a) may subject the witness or others to physical or economic harm or coercion, the court may order that the deposition of the witness be taken under s. 967.04 (2) to (6). The name of the witness need not be divulged prior to the taking of such deposition. If the witness becomes unavailable or changes his or her testimony, the deposition shall be admissible at trial as substantive evidence.

SB318,50,24 (7) In camera proceedings. Either party may move for an in camera inspection of any document required to be disclosed under sub. (2) or (3) for the purpose of masking or deleting any material that is not relevant to the case being tried. The court shall mask or delete any irrelevant material.

SB318,51,5 (8) Continuing duty to disclose. If, after complying with a requirement of this section, and before or during trial, a party discovers additional material or the names of additional witnesses requested that are subject to discovery, inspection, or production under this section, the party shall promptly notify the other party of the existence of the additional material or names.