SB82: Bill Text

SB82,1125 Section 1125. 975.11 of the statutes is repealed.

SB82,1126 Section 1126. 975.12 of the statutes is repealed.

SB82,1127 Section 1127. 975.15 of the statutes is repealed.

SB82,1128 Section 1128. 975.16 of the statutes is repealed.

SB82,1129 Section 1129. 975.17 of the statutes is repealed.

SB82,1130 Section 1130. 975.18 of the statutes is repealed.

SB82,1131 Section 1131. Subchapter I (title) of chapter 975 [precedes 975.20] of the statutes is created to read:

SB82,346,16 chapter 975

SB82,346,17 Subchapter I

SB82,346,18 General provisions

SB82,1132 Section 1132. 975.20 of the statutes is created to read:

SB82,346,20 975.20 Definitions. In this chapter:

SB82,346,22 (1) "Department" means the department of health services, except as otherwise expressly provided.

SB82,347,2 (2) "Not competent to refuse medication or treatment" means that because of mental illness, developmental disability, alcoholism, or drug dependency, and after the advantages and disadvantages of and alternatives to accepting a particular medication or treatment have been explained to a person, one of the following is true:

SB82,347,4 (a) The person is incapable of expressing an understanding of the advantages, disadvantages, and alternatives.

SB82,347,8 (b) The person is substantially incapable of applying an understanding of the advantages, disadvantages, and alternatives to his or her mental illness, developmental disability, alcoholism, or drug dependence in order to make an informed choice as to whether to accept or refuse medication or treatment.

SB82,347,9 (3) "Physician" has the meaning given in s. 448.01 (5).

SB82,347,10 (4) "Psychologist" means a person holding a valid license under s. 455.04.

SB82,1133 Section 1133. Subchapter II (title) of chapter 975 [precedes 975.30] of the statutes is created to read:

SB82,347,13 chapter 975

SB82,347,14 Subchapter II

SB82,347,15 competency

SB82,1134 Section 1134. 975.31 (title) of the statutes is created to read:

SB82,347,17 975.31 (title) Raising the issue of competency.

SB82,1135 Section 1135. 975.31 (4) of the statutes is created to read:

SB82,347,20 975.31 (4) If competency is raised, the court may order that a guardian ad litem be appointed.

SB82,1136 Section 1136. 975.32 (title) of the statutes is created to read:

SB82,347,22 975.32 (title) Competency examination.

SB82,1137 Section 1137. 975.32 (2) of the statutes is created to read:

SB82,348,2 975.32 (2) Notwithstanding sub. (1), if the parties agree that a previously conducted mental examination provides a sufficient basis for the court to make the determination under s. 975.34 and the court concurs, a new examination need not be ordered.

SB82,1138 Section 1138. 975.32 (4) of the statutes is created to read:

SB82,348,5 975.32 (4) If the defendant is in custody, the court may order an inpatient or outpatient examination and all of the following apply:

SB82,348,7 (a) Any outpatient examination for a defendant in custody shall be conducted in a jail or locked unit of a facility.

SB82,348,11 (b) If an inpatient examination is determined by the court to be necessary for a defendant in custody, the defendant may be committed to a suitable mental health facility. If the examination is to be conducted by the department under par. (c), the court shall order the individual to the facility designated by the department.

SB82,348,21 (c) If the court orders a defendant in custody to be examined by the department or a department facility, the department shall determine where the examination will be conducted, who will conduct the examination, and whether the examination will be conducted on an inpatient or outpatient basis. If an outpatient examination is begun by or through the department, and the department later determines that inpatient examination is necessary, the sheriff shall transport the defendant to the inpatient facility designated by the department. In any case under this paragraph in which the department determines that an inpatient examination is necessary, the 15-day period under sub. (6) (a) begins upon the arrival of the defendant at the inpatient facility.

SB82,1139 Section 1139. 975.32 (7) of the statutes is created to read:

SB82,348,25 975.32 (7) Days spent in a mental health facility for an inpatient competency examination ordered under this section count as days spent in custody under s. 973.155.

SB82,1140 Section 1140. 975.32 (10) of the statutes is created to read:

SB82,349,3 975.32 (10) The court may order additional experts to examine the defendant at any stage of the proceedings to determine the defendant's competency to proceed.

SB82,1141 Section 1141. 975.33 (title) of the statutes is created to read:

SB82,349,5 975.33 (title) Examination report.

SB82,1142 Section 1142. 975.33 (1) (f) and (3) of the statutes are created to read:

SB82,349,11 975.33 (1) (f) If the examiner reports that the defendant is not competent to proceed and that the defendant is not likely to become competent within the maximum period of commitment, as defined in s. 975.34 (6) (a), the examiner's opinion on whether the defendant meets the criteria for commitment under ch. 51 or 55.

SB82,349,13 (3) If competency is raised, the court may order that a guardian ad litem be appointed.

SB82,1143 Section 1143. 975.34 of the statutes is created to read:

SB82,349,18 975.34 Competency determination. (1) Hearing. As soon as practicable after receiving the examiner's report under s. 975.33, the court shall hold a hearing on the defendant's competency to proceed and, if at issue, on the defendant's competency to refuse medication or treatment.

SB82,349,23   (2) Waiver of hearing. Notwithstanding sub. (1), if the parties agree that a hearing is not necessary and the court concurs, the court may make a determination on the defendant's competency to proceed and, if relevant, the defendant's competency to refuse medication or treatment based on the court-ordered report and other information adduced.

SB82,349,25 (3) Burden of going forward. If a hearing is held under this section, the district attorney has the burden of going forward with the evidence.

SB82,350,4   (4) Burden of persuasion. Regardless of who raised the issue of competency, the court may find the defendant competent to proceed only if, after hearing evidence or reviewing the reports submitted under s. 975.33, or both, the court finds by the greater weight of the evidence that the defendant is competent to proceed.

SB82,350,7 (5) Resuming proceedings. If the court finds the defendant competent to proceed, the court shall enter its finding on the record and shall resume the criminal proceedings.

SB82,350,12 (6) Suspending proceedings; commitment for treatment. (a) In this subsection, "maximum period of commitment" means the greatest maximum sentence length for any crime for which the defendant is charged, including imprisonment authorized by any applicable penalty enhancement statutes, or 12 months, whichever is less.

SB82,350,16 (b) If the court does not find by the greater weight of the evidence that the defendant is competent to proceed, the court shall find that the defendant is not competent, shall enter its finding on the record, shall suspend the criminal proceedings, and shall do one of the following:

SB82,350,19 1. If the court finds by the greater weight of the evidence that the defendant is not likely to become competent within the maximum period of commitment, the court shall order that the defendant be released, except as provided in s. 975.38.

SB82,351,2 2. If the court finds by the greater weight of the evidence that the defendant is likely to become competent within the maximum period of commitment without inpatient treatment, the court shall order that the defendant be released. The court may require the defendant to participate in outpatient treatment, undergo periodic reexaminations to determine whether the defendant has become competent to proceed, or both, for a period that does not exceed the maximum period of commitment.

SB82,351,5 3. If the court finds by clear and convincing evidence that the defendant is likely to become competent within the maximum period of commitment if provided appropriate inpatient treatment, proceed under sub. (7).

SB82,351,6 (7) Commitment for treatment.

SB82,351,12 (8) Competency to refuse medication or treatment. If the defendant is committed to the department under sub. (7) and the state proves by clear and convincing evidence that the defendant is not competent to refuse medication or treatment, the court shall find, without a jury, that the defendant is not competent to refuse medication or treatment, and order that whoever administers medication or treatment to the defendant shall observe appropriate medical standards.

SB82,1144 Section 1144. 975.36 (title) of the statutes is created to read:

SB82,351,14 975.36 (title) Reexamination of defendant's competency.

SB82,1145 Section 1145. 975.36 (2) of the statutes is created to read:

SB82,351,21 975.36 (2) Reports at other times. The department shall furnish written reports of examination to the court whenever it determines that the defendant has become competent or that the defendant is not likely to become competent within the remaining commitment period. The reports shall comply with the requirements of sub. (1). The court shall schedule a review of a report under this subsection within 14 days after the court receives the report.

SB82,1146 Section 1146. 975.36 (4) of the statutes is created to read:

SB82,351,25 975.36 (4) Final reexamination. Before or at the end of the commitment, the court shall order the defendant discharged from the commitment and shall release the defendant, except as provided in s. 975.38.

SB82,1147 Section 1147. 975.37 of the statutes is created to read:

SB82,352,7 975.37 Involuntary medication to restore competency at trial. The court may order involuntary medication to restore a defendant's competency to stand trial only if the court finds that there is a need for that medication sufficiently important to overcome the defendant's protected interest in refusing it. The court shall consider the effectiveness and side effects of the medication, the possible alternatives, and the medical appropriateness of the medication.

SB82,1148 Section 1148. 975.38 (title) of the statutes is created to read:

SB82,352,9 975.38 (title) Mental health commitment or protective placement.

SB82,1149 Section 1149. 975.39 of the statutes is created to read:

SB82,352,13 975.39 Competency to pursue postconviction relief. (1) Applicability. The court shall proceed under this section whenever there is reason to doubt a defendant's competency to seek postconviction relief under s. 809.30.

SB82,352,17 (2) Standard. A defendant lacks competency to pursue postconviction relief under s. 809.30 if he or she is unable, with a reasonable degree of rational understanding, to assist counsel or to make decisions committed by law to the defendant.

SB82,353,2   (3) Determining competency. If the court determines that reason exists to doubt a defendant's competency to pursue postconviction relief under s. 809.30, it shall, as an exercise of its discretion, determine the method for evaluating a defendant's competency. A court may rely upon the affidavits of counsel, a stipulation, or the court's observation of the defendant. A court may order an examination of the defendant by a person with specialized knowledge. A court may, in its discretion, hold a hearing before determining a defendant's competency. Any hearing conducted under this subsection shall be governed by s. 975.34 to the extent practicable.

SB82,353,5 (4) Alternatives pending a competency determination. Pending a determination of competency to pursue postconviction relief or after a finding that the defendant lacks competency, the applicable court may do any of the following:

SB82,353,9 (a) The circuit court may allow the initiation or continuation of proceedings on any issue raised by the defendant's attorney that rests on the records, does not require the defendant to assist counsel or make a decision, and involves no risk to the defendant.

SB82,353,11 (b) The court of appeals may grant the defendant a continuance or an enlargement of time for filing necessary notices or motions for postconviction relief.

SB82,353,14 (5) Appointing a guardian; ordering treatment. If the court finds that the defendant lacks competency to pursue postconviction relief, the court may do any of following:

SB82,353,16 (a) Appoint a guardian to make decisions that the law requires the defendant to make.

SB82,353,18 (b) Order treatment to restore the defendant to competency to pursue postconviction relief.

SB82,353,22 (6) Raising issues after competency is regained. A defendant who lacks competency to pursue postconviction relief at the time he or she seeks postconviction relief may, after regaining competency, raise any issue at a later proceeding that he or she did not raise earlier because of incompetency.

SB82,1150 Section 1150. Subchapter III (title) of chapter 975 [precedes 975.50] of the statutes is created to read:

SB82,353,25 chapter 975

SB82,354,1 Subchapter III

SB82,354,2 Mental responsibility

SB82,1151 Section 1151. 975.51 (4) (b) of the statutes is created to read:

SB82,354,8 975.51 (4) (b) If a physician, psychologist, or other expert examines the defendant at the request of the state, the examiner may not testify at trial regarding the mental condition of the defendant unless the examiner provides a report of his or her examination of the defendant to the defendant or defendant's attorney at least 15 days before trial.

SB82,1152 Section 1152. 975.51 (5) (b) of the statutes is created to read:

SB82,354,15 975.51 (5) (b) A physician, psychologist, or other expert may not testify regarding the defendant's need for medication or treatment or competence to refuse medication or treatment before a jury that is determining the ability of the defendant to appreciate the wrongfulness of his or her conduct or to conform his or her conduct with the requirements of law at the time of the commission of the criminal offense charged.

SB82,1153 Section 1153. 975.52 (1) of the statutes is created to read:

SB82,354,20 975.52 (1) Joined with a plea of guilty or no contest. If a defendant joins a plea of guilty or no contest with a plea of not guilty by reason of mental disease or defect, the court shall first determine whether to accept the plea of guilty or no contest. If the plea is accepted, the court shall proceed under sub. (3).

SB82,1154 Section 1154. 975.52 (4) (title) of the statutes is created to read: