SB318: Bill Text

SB318,53,14 (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.

SB318,53,18 (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.

SB318,54,4 (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 (5) (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.

SB318,54,14 (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.

SB318,54,17 (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.

SB318,54,24 (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.

SB318,55,3 (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.

Note: Creates s. 980.038, providing that:

1. Notwithstanding the normal process for gaining personal jurisdiction in a judicial proceeding, a court may exercise personal jurisdiction over the subject of an SVP petition even though the person is not served under the normal process with a verified petition and summons or served with an order for detention and the person has not had a probable cause hearing.

2. A motion for post-commitment relief by an SVP or an appeal from a final order or from an order denying a motion for post-commitment relief must follow criminal appellate procedure.

3. An appeal by the state from a final judgment or order must follow the procedure for civil appeals.

4. The state is permitted to present evidence or comment on evidence that a person who is the subject of an SVP commitment petition, or that a person who has been committed, refused to participate in an examination of his or her mental condition that was being conducted as part of an SVP proceeding or that was conducted before the commitment petition was filed for the purpose of evaluating whether to file a petition. The bill does not affect the general right to remain silent at any hearing relating to an SVP commitment.

The bill also creates new provisions relating to failure to comply with time limits, specifying that:

1. Failure to comply with any time limit specified in ch. 980, stats., does not deprive the court of personal or subject matter jurisdiction or of competency to exercise that jurisdiction.

2. Failure to comply with any time limit is not grounds for an appeal or grounds to vacate any order, judgment, or commitment issued or entered.

3. 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.

SB318, s. 93 Section 93. 980.04 (1) of the statutes is amended to read:

SB318,56,6 980.04 (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.

SB318, s. 94 Section 94. 980.04 (2) of the statutes is renumbered 980.04 (2) (a) and amended to read:

SB318,56,14 980.04 (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, the

SB318,56,19 (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.

SB318, s. 95 Section 95 . 980.04 (2) (b) 2. of the statutes is created to read:

SB318,57,3 980.04 (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.

Note: Revises current law [s. 980.04 (2)] which specifies that: (1) whenever an SVP commitment petition is filed, the court must hold a hearing to determine whether there is probable cause to believe that the person named in the petition is an SVP; (2) if the person is in custody, the court must hold the probable cause hearing within 72 hours after the petition is filed, excluding Saturdays, Sundays, and legal holidays; and (3) if the person is not in custody, the court must hold the hearing within a reasonable time after the filing of the petition.

The bill:

1. Requires the court, in general, to hold the probable cause hearing within 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.

2. If the person named in the petition is in custody and the probable cause hearing will be held after the date on which the person is scheduled to be released or discharged, requires the hearing to 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. See, also, Section 96.

SB318, s. 96 Section 96 . 980.04 (3) of the statutes is amended to read:

SB318,57,12 980.04 (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.

SB318, s. 97 Section 97. 980.04 (5) of the statutes is amended to read:

SB318,57,17 980.04 (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.

SB318, s. 98 Section 98 . 980.05 (1) of the statutes is amended to read:

SB318,58,6 980.05 (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.

Note: Revises s. 980.05 (1), stats., to require the trial to commence no later than 90 days after the probable cause hearing (45 days under current law) and permits the court to grant one or more continuances of the trial date for good cause (current law permits granting "a continuance").

SB318, s. 99 Section 99 . 980.05 (1m) of the statutes is repealed.

Note: Specifies, by repealing s. 980.05 (1m), that constitutional rights available to a defendant in a criminal proceeding are not necessarily available to the person who is the subject to an SVP commitment petition. Current s. 980.05 (1m), stats., specifies that: (1) at the trial to determine whether the person is a "sexually violent person," all rules of evidence in criminal actions apply; and (2) all constitutional rights available to a defendant in a criminal proceeding are available to the person.

SB318, s. 100 Section 100. 980.05 (2) of the statutes is amended to read:

SB318,58,16 980.05 (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.

SB318, s. 101 Section 101 . 980.05 (2m) of the statutes is created to read:

SB318,59,4 980.05 (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.

SB318,59,12 (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.

SB318,59,16 (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).

Note: Revises current law specifying that: (1) the person who is the subject of an SVP commitment petition, the person's attorney, DOJ, or the DA may request that the trial be to a jury of 12 in order to determine whether the person who is the subject of a commitment petition is an SVP; (2) the court may also, on its own motion, require that the trial be to a jury of 12; and (3) a verdict of a jury is not valid unless it is unanimous.

The bill creates s. 980.05 (2m) to provide:

1. For a jury of 12, but the parties may stipulate to a smaller number of jurors.

2. That juries must be selected and treated in the same manner as they are selected and treated in civil actions in circuit court, except that each party is entitled to 4 peremptory challenges (instead of 3, as for other civil actions), unless fewer jurors are to serve on the jury.

SB318, s. 102 Section 102 . 980.05 (3) (a) of the statutes is amended to read:

SB318,60,3 980.05 (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.

Note: Revises s. 980.05 (3) (a) to clarify that in a trial under ch. 980, the petitioner's burden is to prove beyond a reasonable doubt that the person is an SVP (and not the general "allegations in the petition" under current law).

SB318, s. 103 Section 103. 980.05 (3) (b) of the statutes is amended to read:

SB318,60,8 980.05 (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.

SB318, s. 104 Section 104 . 980.07 (1) of the statutes is renumbered 980.07 (1) (intro.) and amended to read:

SB318,60,19 980.07 (1) (intro.) If a person has been is committed under s. 980.06 and has not been discharged under s. 980.09 (3) or 980.093, the department shall conduct an examination of his or her 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. 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 any of the following:

SB318,61,2 (a) 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 department. The county shall pay the costs of an examiner appointed under this paragraph as provided under s. 51.20 (18) (a).

Note: Provides that a court is not required to appoint an examiner at the request of a petitioner for supervised release when supervised release or discharge is supported by the examination conducted by DHFS. See, also, Note to Section 108 .

SB318, s. 105 Section 105. 980.07 (1) (b) of the statutes is created to read:

SB318,61,4 980.07 (1) (b) An attorney as provided under s. 980.03 (2) (a).

SB318, s. 106 Section 106. 980.07 (1g) of the statutes is created to read:

SB318,61,9 980.07 (1g) Any examiners under this section 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).

SB318, s. 107 Section 107. 980.07 (1m) of the statutes is created to read:

SB318,61,14 980.07 (1m) At the time for any examination under sub. (1), the department shall prepare a treatment report based on its treating professionals' evaluation of the person and shall provide a copy of the report to any examiner conducting an examination under sub. (1). The report shall consider all of the following:

SB318,61,16 (a) The specific factors associated with the person's risk for committing another sexually violent offense.

SB318,61,18 (b) Whether the person has made significant progress in treatment or has refused treatment.

SB318,61,19 (c) The ongoing treatment needs of the person.

SB318,61,21 (d) Any specialized needs or conditions associated with the person that must be considered in future treatment planning.

Note: See the Note to Section 108.

SB318, s. 108 Section 108 . 980.07 (2) of the statutes is amended to read:

SB318,62,16 980.07 (2) Any examiner conducting an examination under this section sub. (1) shall prepare a written report of the examination no later than 30 days after the date of the examination. 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 department. The report shall include an assessment of the risk that the person will reoffend, whether the risk can be safely managed in the community if reasonable conditions of supervision and security are imposed, and whether the treatment that the person needs is available in the community. The department shall then send the treatment report, the written examination report, and a written statement from the department recommending continued institutional care, supervised release, or discharge to the court that committed the person under s. 980.06. A copy of each report and the department's recommendation shall be provided also to the petitioner and to the person's attorney as soon as he or she is retained or appointed. If the department concludes that the person does not meet the criteria for commitment as a sexually violent person, the department shall petition for discharge in accordance with the provisions of s. 980.09 (1).

Note: Revises, in Sections 104 to 108 , current law requiring DHFS to conduct an examination of the mental condition of each person who has been committed as an SVP within 6 months of the initial commitment and every 12 months thereafter 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. Current law requires any examiner conducting an examination to prepare a written report of the examination no later than 30 days after the date of the examination, and requires the report to be placed in the person's medical records and a copy must be given to the court.

Under the bill:

1. DHFS must conduct the examination within 12 months after the date of the initial commitment order and every 12 months thereafter.

2. At the time of the examination, DHFS must prepare a treatment report based on its treating professionals' evaluation of: (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; and (d) any specialized needs or conditions associated with the person that must be considered in future treatment planning. A copy of the report must be given to the examiner.

3. The examiner's report must include an assessment of the risk that the person will reoffend, whether the risk can be safely managed in the community if reasonable conditions of supervision and security are imposed, and whether the treatment that the person needs is available in the community. The report must be prepared no later than 30 days after the date of the examination and must be provided to DHFS.

4. DHFS must send the treatment report, the written examination report, and a written statement from DHFS recommending either continued institutional care, supervised release, or discharge to the court. Copies of these documents must also be provided to the petitioner and to the person's attorney.

5. If the report concludes that the person does not meet the criteria for commitment as an SVP, DHFS must petition for discharge.

SB318, s. 109 Section 109. 980.07 (3) of the statutes is amended to read:

SB318,63,5 980.07 (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 report ordered under this subsection shall conform to subs. (1m) and (2).

SB318, s. 110 Section 110 . 980.07 (4) to (7) of the statutes are created to read:

SB318,63,10 980.07 (4) (a) Within 30 days after the filing of the reexamination report, treatment report, and recommendation under this section, the person subject to the commitment or the petitioner may object to the department's recommendation under sub. (2) by filing a written objection with the court.

SB318,63,11 (b) If no timely objection is filed under par. (a), one of the following applies:

SB318,63,14 1. If the department's recommendation under sub. (2) is for continued institutional care, the department's recommendation shall be implemented without a hearing.

SB318,63,16 2. If the department's recommendation under sub. (2) is for supervised release or discharge, the court shall proceed under sub. (7) or s. 980.09.

SB318,64,2 (5) (a) If the person files a timely objection without counsel, the court shall serve a copy of the objection and any supporting documents on the petitioner. If the person objects through counsel, his or her attorney shall serve the petitioner. If the petitioner objects, it shall serve the person or his or her counsel.

SB318,64,5 (b) If the person filing an objection is requesting discharge, the court may not proceed under sub. (7). The court may proceed under s. 980.093 if the person files a petition under that section.

SB318,64,7 (6) The petitioner may employ experts or professional persons to support or oppose any recommendation.

SB318,64,12 (6m) Subject to s. 980.03 (2) (a), the court, before proceeding under sub. (7), 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. The determination of indigency and the appointment of counsel shall be done as soon as circumstances permit.

SB318,64,18 (7) (a) Except as provided in subs. (4) (b) 1. and (5) (b), unless the department recommends discharge, the court, without a jury, shall hold a hearing to determine whether to authorize supervised release. The court shall hold the hearing within 30 days after the date on which objections are due under sub. (4), unless the petitioner waives this time limit. Expenses of proceedings under this subsection shall be paid as provided under s. 51.20 (18) (b), (c), and (d).

SB318,64,23 (am) The department of justice shall represent the department of health and family services at any hearing under this subsection unless the departments have adverse interests. If the departments have adverse interests, the department of health and family services shall be represented at the hearing by its agency counsel or by an attorney that it retains.

SB318,65,9 (b) The court shall 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. In making a decision under this subsection, 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, whether the person has demonstrated significant progress in his or her treatment, whether the person has refused treatment, and, 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 necessary treatment.