SB318: Bill Text

5. If the court determines at the probable cause hearing that probable cause exists to believe that the committed person is no longer an SVP, the court must set a hearing on the issue. The hearing must be to the court. The state has the right to have the person evaluated by experts chosen by the state. The state has the burden of proving by clear and convincing evidence that the committed person is likely to engage in acts of sexual violence or has not made significant progress in treatment or has refused treatment. If the court is satisfied that the state has not met its burden of proof, the petitioner must be discharged from the custody and supervision of DHFS. If the court is satisfied that the state has met its burden, the court may proceed to determine whether to modify the person's existing SVP commitment order by authorizing supervised release.

The bill modifies the provisions relating to petitions for discharge that do not have DHFS's approval as follows:

1. The court must deny the petition without a hearing unless the petition alleges facts from which the court may conclude that the person's condition has changed so that the person does not meet the criteria for commitment as an SVP. In determining whether such facts exist, the court must consider any current or past reports filed in connection with a reexamination, relevant facts and arguments in the petition and in the state's written response, arguments of counsel, and any supporting documentation provided by the person or the state.

2. The court must hold a hearing within 90 days of the determination that the petition contains facts from which the court may conclude that the person does not meet the criteria for commitment as an SVP. Upon request, the hearing may be to a jury of 6. A verdict must be agreed to by at least 5 of the 6 jurors. The state has the burden of proving by clear and convincing evidence that the person meets the criteria for commitment. The bill specifies that the general rules of evidence are inapplicable at such hearings.

3. If the court is satisfied that the state has not met its burden of proof, the petitioner must be discharged from the custody and supervision of DHFS. If the court is satisfied that the state has met its burden, the court may proceed to determine whether to modify the person's existing commitment order by authorizing supervised release.

SB318, s. 119 Section 119 . 980.095 of the statutes is created to read:

SB318,76,6 980.095 Procedures for discharge hearings. (1) Use of juries. (a) The district attorney or the department of justice, whichever filed the original petition, or the petitioner or his or her attorney may request that a hearing under s. 980.093 be to a jury of 6. A jury trial is deemed waived unless it is demanded within 10 days of the filing of the petition for discharge.

SB318,76,13 (b) Juries shall be selected and treated in the same manner as they are selected and treated in civil actions in circuit court. The number of jurors prescribed in par. (a), 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.

SB318,77,2 (c) No verdict shall be valid or received unless at least 5 of the jurors agree to it.

SB318,77,7 (2) Department's right to be heard. The department of justice shall represent the department of health and family services at any discharge hearing unless the departments have adverse interest. If the departments have adverse interests, the department of health and family services shall be represented at the hearing by its agency counsel or an attorney that it retains.

SB318,77,9 (3) Post verdict motions. Motions after verdict may be made without further notice upon receipt of the verdict.

SB318,77,11 (4) Appeals. Any party may appeal an order under this subsection as a final order under chs. 808 and 809.

Note: Creates new s. 980.095 providing for a separate jury requirement for discharge hearings. Specifically, the DA or DOJ, whichever filed the original petition, or the petitioner may request that the discharge hearing be to a jury of 6. A jury trial is deemed waived unless it is demanded within 10 days after the filing of the petition for discharge. No verdict is valid unless it is agreed to by at least 5 of the jurors. See, also, the Note to Section 118 .

SB318, s. 120 Section 120. 980.10 of the statutes is repealed.

Note: Repeals a provision granting an additional method by which a committed person may petition a committing court for discharge at any time. However, under this provision, if a person has previously filed a petition for discharge without the secretary's approval and the court determined that the petition was frivolous or that the petitioner remained an SVP, than the court was required to deny any subsequent petition without a hearing until the petition contained facts upon which a court could find that the condition of the person had so changed that a hearing was warranted.

SB318, s. 121 Section 121. 980.101 (2) (a) of the statutes is amended to read:

SB318,78,2 980.101 (2) (a) If the sexually violent offense was the sole basis for the allegation under s. 980.02 (2) (a) and there are no other judgments relating to a sexually violent offense committed by the person, the court shall reverse, set aside, or vacate the judgment under s. 980.05 (5) that the person is a sexually violent person, vacate the commitment order, and discharge the person from the custody or supervision of the department.

SB318, s. 122 Section 122. 980.11 (2) (intro.) of the statutes is amended to read:

SB318,78,6 980.11 (2) (intro.) If the court places a person on supervised release under s. 980.08 or discharges a person under s. 980.09 (3) or 980.10 980.093, the department shall do all of the following:

SB318, s. 123 Section 123. 980.12 (1) of the statutes is amended to read:

SB318,78,11 980.12 (1) Except as provided in ss. 980.03 (4) 980.031 (3) and 980.08 (3) 980.07 (1) (a), the department shall pay from the appropriations under s. 20.435 (2) (a) and (bm) for all costs relating to the evaluation, treatment, and care of persons evaluated or committed under this chapter.

SB318, s. 124 Section 124 . 980.14 (title) of the statutes is created to read:

SB318,78,13 980.14 (title) Immunity.

SB318, s. 125 Section 125 . 980.14 (1) of the statutes is created to read:

SB318,78,17 980.14 (1) In this section, "agency" means the department of corrections, the department of health and family services, the department of justice, or a district attorney.

Note: See the Note to Section 77.

SB318, s. 126 Section 126. Initial applicability.

SB318,78,23 (1) This act first applies to reviews regarding detention and probable cause hearings under section 980.04 of the statutes, as affected by this act, and trials under section 980.05 of the statutes, as affected by this act, that are based on a petition filed under s. 980.02 of the statutes, as affected by this act, on the effective date of this subsection.

SB318,79,3 (2) This act first applies to periodic reexaminations conducted under section 980.07 of the statutes, as affected by this act, begun on the effective date of this subsection and to court proceedings resulting from those reexaminations.

SB318,79,9 (3) This act first applies to proceedings to revoke supervised release under section 980.08 (5) of the statutes, as affected by this act, that are commenced on the effective date of this subsection, except that the treatment of section 980.08 (5) of the statutes, with respect to where a person may be detained while a petition to revoke supervised release is pending, first applies to a person whose detention commences on the effective date of this subsection.

SB318,79,11 (4) This act first applies to discharge proceedings commenced on the effective date of this subsection.

SB318, s. 127 Section 127. Effective date.

SB318,79,14 (1) This act takes effect on the first day of the 2nd month beginning after publication.

SB318,79,15 (End)