980.02 Annotation
Failure of the trial court to follow the notice requirements of sub. (2) (c) resulted in the court being incompetent to order community release. In re Commitment of Goodson, 199 W (2d) 426, 544 NW (2d) 611 (Ct. App. 1996).
980.02 Annotation
Sub. (2) (d) requires post-hearing notice to the local law enforcement agencies. In re Commitment of Goodson, 199 W (2d) 426, 544 NW (2d) 611 (Ct. App. 1996).
980.03
980.03
Rights of persons subject to petition. 980.03(1)
(1) The circuit court in which a petition under
s. 980.02 is filed shall conduct all hearings under this chapter. The court shall give the person who is the subject of the petition reasonable notice of the time and place of each such hearing. The court may designate additional persons to receive these notices.
980.03(2)
(2) Except as provided in
ss. 980.09 (2) (a) and
980.10 and without limitation by enumeration, at any hearing under this chapter, the person who is the subject of the petition has the right to:
980.03(2)(a)
(a) Counsel. If the person claims or appears to be indigent, the court shall refer the person to the authority for indigency determinations under
s. 977.07 (1) and, if applicable, the appointment of counsel.
980.03(2)(d)
(d) Have the hearing recorded by a court reporter.
980.03(3)
(3) The person who is the subject of the petition, the person's attorney, the department of justice or the district attorney 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. Notwithstanding
s. 980.05 (2), if the person, the person's attorney, the department of justice or the district attorney does not request a jury trial, the court may on its own motion require that the trial be to a jury of 12. A verdict of a jury under this chapter is not valid unless it is unanimous.
980.03(4)
(4) Whenever the person who is the subject of the petition is required to submit to an examination under this chapter, he or she may retain experts or professional persons to perform an examination. If the person retains a qualified expert or professional person of his or her own choice to conduct an examination, 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 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 a court-appointed expert or professional person to perform an examination and participate in the trial on behalf of an indigent person. An expert or professional person appointed to assist an indigent person who is subject to a petition may not be subject to any order by the court for the sequestration of witnesses at any proceeding under this chapter.
980.03(5)
(5) Upon a showing by the proponent of good cause under
s. 807.13 (2) (c), testimony may be received into the record of a hearing under this section by telephone or live audio-visual means.
980.03 History
History: 1993 a. 479.
980.04
980.04
Detention; probable cause hearing; transfer for examination. 980.04(1)(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 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), or a secured child caring institution, as defined in
s. 938.02 (15g), 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 after a trial under
s. 980.05 or until the effective date of a commitment order under
s. 980.06, whichever is applicable.
980.04(2)
(2) 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 court shall hold the probable cause hearing within a reasonable time after the filing of the petition.
980.04(3)
(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 for an evaluation 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.
980.04(4)
(4) The department shall promulgate rules that provide the qualifications for persons conducting evaluations under
sub. (3).
980.04(5)
(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), refer the person to the authority for indigency determinations under
s. 977.07 (1) and, if applicable, the appointment of counsel.
980.04 History
History: 1993 a. 479;
1995 a. 77.
980.05(1)(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 days after the date of the probable cause hearing under
s. 980.04. The court may grant a continuance of the trial date for good cause upon its own motion, the motion of any party or the stipulation of the parties.
980.05(1m)
(1m) At the trial to determine whether the person who is the subject of a petition under
s. 980.02 is a sexually violent person, all rules of evidence in criminal actions apply. All constitutional rights available to a defendant in a criminal proceeding are available to the person.
980.05(2)
(2) The person who is the subject of the petition, the person's attorney, the department of justice or the district attorney 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. 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, 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.
980.05(3)(a)(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.
980.05(3)(b)
(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), the state is required to prove beyond a reasonable doubt that the alleged sexually violent act was sexually motivated.
980.05(4)
(4) Evidence that the person who is the subject of a petition under
s. 980.02 was convicted for or committed sexually violent offenses before committing the offense or act on which the petition is based is not sufficient to establish beyond a reasonable doubt that the person has a mental disorder.
980.05(5)
(5) If the court or jury determines that the person who is the subject of a petition under
s. 980.02 is a sexually violent person, the court shall enter a judgment on that finding and shall commit the person as provided under
s. 980.06. If the court or jury is not satisfied beyond a reasonable doubt that the person is a sexually violent person, the court shall dismiss the petition and direct that the person be released unless he or she is under some other lawful restriction.
980.05(6)
(6) A judgment entered under
sub. (5) on the finding that the person who is the subject of a petition under
s. 980.02 is a sexually violent person is interlocutory to a commitment order under
s. 980.06 and is reviewable on appeal.
980.05 History
History: 1993 a. 479.
980.06(1)(1) If a court or jury determines that the person who is the subject of a petition under
s. 980.02 is a sexually violent person, the court shall order the person to be committed to the custody of the department for control, care and treatment until such time as the person is no longer a sexually violent person.
980.06(2)(a)(a) The court shall enter an initial commitment order under this section pursuant to a hearing held as soon as practicable after the judgment that the person who is the subject of a petition under
s. 980.02 is a sexually violent person is entered. If the court lacks sufficient information to make the determination required by
par. (b) immediately after trial, it may adjourn the hearing and order the department to conduct a predisposition investigation using the procedure in
s. 972.15 or a supplementary mental examination, or both, to assist the court in framing the commitment order. A supplementary mental examination under this paragraph shall be conducted in accordance with
s. 971.17 (2) (b) to
(f).
980.06(2)(b)
(b) An order for commitment under this section shall specify either institutional care in a secure mental health unit or facility, as provided under
s. 980.065, or other facility or supervised release. In determining whether commitment shall be for institutional care in a secure mental health unit or facility or other facility or for supervised release, 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, where the person will live, how the person will support himself or herself, and what arrangements are available to ensure that the person has access to and will participate in necessary treatment. The department shall arrange for control, care and treatment of the person in the least restrictive manner consistent with the requirements of the person and in accordance with the court's commitment order.
980.06(2)(c)
(c) If the court finds that the person is appropriate for supervised release, the court shall notify the department. The department and the county department under
s. 51.42 in the county of residence of the person, as determined under
s. 980.105, shall prepare a plan that identifies the treatment and services, if any, that the person will receive in the community. The plan shall address the person's need, if any, for supervision, counseling, medication, community support services, residential services, vocational services, and alcohol or other drug abuse treatment. The department may contract with a county department, under
s. 51.42 (3) (aw) 1. d., with another public agency or with a private agency to provide the treatment and services identified in the plan. The plan shall specify who will be responsible for providing the treatment and services identified in the plan. The plan shall be presented to the court for its approval within 21 days after the court finding that the person is appropriate for supervised release, unless the department, county department and person to be released request additional time to develop the plan. If the county department of the person's county of residence declines to prepare a plan, the department may arrange for another county to prepare the plan if that county agrees to prepare the plan and if the person will be living in that county. If the department is unable to arrange for another county to prepare a plan, the court shall designate a county department to prepare the plan, order the county department to prepare the plan and place the person on supervised release in that county, except that the court may not so designate the county department in the county where the facility in which the person was committed for institutional care is located unless that county is also the person's county of residence.
980.06(2)(d)
(d) An order for supervised release places the person in the custody and control of the department. A person on supervised release is subject to the conditions set by the court and to the rules of the department. Before a person is placed on supervised release by the court under this section, the court shall so notify the municipal police department and county sheriff for the municipality and county in which the person will be residing. The notification requirement under this paragraph does not apply if a municipal police department or county sheriff submits to the court a written statement waiving the right to be notified. If the department alleges that a released person has violated any condition or rule, or that the safety of others requires that supervised release be revoked, he or she may be taken into custody under the rules of the department. The department shall submit a statement showing probable cause of the detention and a petition to revoke the order for supervised release to the committing court and the regional office of the state public defender responsible for handling cases in the county where the committing court is located within 48 hours after the detention. The court shall hear the petition within 30 days, unless the hearing or time deadline is waived by the detained person. Pending the revocation hearing, the department may detain the person in a jail or in a hospital, center or facility specified by
s. 51.15 (2). The state has the burden of proving by clear and convincing evidence that any rule or condition of release has been violated, or that the safety of others requires that supervised release be revoked. If the court determines after hearing that any rule or condition of release has been violated, or that the safety of others requires that supervised release be revoked, it may revoke the order for supervised release and order that the released person be placed in an appropriate institution until the person is discharged from the commitment under
s. 980.09 or until again placed on supervised release under
s. 980.08.
980.06 History
History: 1993 a. 479;
1995 a. 276.
980.063
980.063
Deoxyribonucleic acid analysis requirements. 980.063(1)(a)(a) If a person is found to be a sexually violent person under this chapter, the court shall require the person to provide a biological specimen to the state crime laboratories for deoxyribonucleic acid analysis.
980.063(1)(b)
(b) The results from deoxyribonucleic acid analysis of a specimen under
par. (a) may be used only as authorized under
s. 165.77 (3). The state crime laboratories shall destroy any such specimen in accordance with
s. 165.77 (3).
980.063(2)
(2) The department of justice shall promulgate rules providing for procedures for defendants to provide specimens under
sub. (1) and for the transportation of those specimens to the state crime laboratories for analysis under
s. 165.77.
980.063 History
History: 1995 a. 440.
980.065
980.065
Secure mental health unit or facility for sexually violent persons. 980.065(1)
(1) The department shall place a person committed to a secure mental health unit or facility under
s. 980.06 (2) (b) at one of the following:
980.065(1)(b)
(b) A secure mental health unit or facility provided by the department of corrections under
sub. (2).
980.065(2)
(2) The department may contract with the department of corrections for the provision of a secure mental health unit or facility for persons committed under
s. 980.06 (2) (b) to a secure mental health unit or facility. The department shall operate a secure mental health unit or facility provided by the department of corrections under this subsection and shall promulgate rules governing the custody and discipline of persons placed in the secure mental health unit or facility provided by the department of corrections under this subsection.
980.065 History
History: 1993 a. 479.
980.07
980.07
Periodic reexamination; report. 980.07(1)
(1) If a person has been committed under
s. 980.06 and has not been discharged under
s. 980.09, the department shall conduct an examination of his or her mental condition within 6 months after an initial commitment under
s. 980.06 and again thereafter at least once each 12 months for the purpose of determining whether the person has made sufficient progress to be entitled to transfer to a less restrictive facility, to supervised release or to discharge. At the time of a reexamination under this section, the person who has been committed may retain or, if he or she is indigent and so requests, the court may appoint a qualified expert or a professional person to examine him or her.
980.07(2)
(2) Any examiner conducting an examination under this section 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 court that committed the person under
s. 980.06.
980.07(3)
(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.
980.07 History
History: 1993 a. 479.
980.08
980.08
Petition for supervised release. 980.08(1)
(1) Any person who is committed for institutional care in a secure mental health unit or facility or other facility under
s. 980.06 may petition the committing court to modify its order by authorizing supervised release if at least 6 months have elapsed since the initial commitment order was entered, the most recent release petition was denied or the most recent order for supervised release was revoked. The director of the facility at which the person is placed may file a petition under this subsection on the person's behalf at any time.
980.08(2)
(2) If the person files a timely petition without counsel, the court shall serve a copy of the petition on the district attorney or department of justice, whichever is applicable and, subject to
s. 980.03 (2) (a), 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 petitions through counsel, his or her attorney shall serve the district attorney or department of justice, whichever is applicable.
980.08(3)
(3) Within 20 days after receipt of the petition, the court shall appoint one or more examiners having the specialized knowledge determined by the court to be appropriate, who shall examine the person and furnish a written report of the examination to the court within 30 days after appointment. The examiners 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). If any such examiner believes that the person is appropriate for supervised release, the examiner shall report on the type of treatment and services that the person may need while in the community on supervised release.
980.08(4)
(4) The court, without a jury, shall hear the petition within 30 days after the report of the court-appointed examiner is filed with the court, unless the petitioner waives this time limit. Expenses of proceedings under this subsection shall be paid as provided under
s. 51.20 (18). The court shall grant the petition unless the state proves by clear and convincing evidence that the person is still a sexually violent person and that it is still substantially probable that the person will engage in acts of sexual violence if the person is not confined in a secure mental health unit or facility. 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, where the person will live, how the person will support himself or herself and what arrangements are available to ensure that the person has access to and will participate in necessary treatment.
980.08(5)
(5) If the court finds that the person is appropriate for supervised release, the court shall notify the department. The department and the county department under
s. 51.42 in the county of residence of the person, as determined under
s. 980.105, shall prepare a plan that identifies the treatment and services, if any, that the person will receive in the community. The plan shall address the person's need, if any, for supervision, counseling, medication, community support services, residential services, vocational services, and alcohol or other drug abuse treatment. The department may contract with a county department, under
s. 51.42 (3) (aw) 1. d., with another public agency or with a private agency to provide the treatment and services identified in the plan. The plan shall specify who will be responsible for providing the treatment and services identified in the plan. The plan shall be presented to the court for its approval within 60 days after the court finding that the person is appropriate for supervised release, unless the department, county department and person to be released request additional time to develop the plan. If the county department of the person's county of residence declines to prepare a plan, the department may arrange for another county to prepare the plan if that county agrees to prepare the plan and if the person will be living in that county. If the department is unable to arrange for another county to prepare a plan, the court shall designate a county department to prepare the plan, order the county department to prepare the plan and place the person on supervised release in that county, except that the court may not so designate the county department in the county where the facility in which the person was committed for institutional care is located unless that county is also the person's county of residence.
980.08(6)
(6) The provisions of
s. 980.06 (2) (d) apply to an order for supervised release issued under this section.
980.08 History
History: 1993 a. 479;
1995 a. 276.
980.09
980.09
Petition for discharge; procedure. 980.09(1)
(1)
Petition with secretary's approval. 980.09(1)(a)(a) If the secretary determines at any time that a person committed under this chapter is no longer a sexually violent person, the secretary shall authorize the person to petition the committing court for discharge. The person shall file the petition with the court and serve a copy upon the department of justice or the district attorney's office that filed the petition under
s. 980.02 (1), whichever is applicable. The court, upon receipt of the petition for discharge, shall order a hearing to be held within 45 days after the date of receipt of the petition.
980.09(1)(b)
(b) At a hearing under this subsection, the district attorney or the department of justice, whichever filed the original petition, shall represent the state and shall have the right to have the petitioner examined by an expert or professional person of his, her or its choice. The hearing shall be before the court without a jury. The state has the burden of proving by clear and convincing evidence that the petitioner is still a sexually violent person.
980.09(1)(c)
(c) If the court is satisfied that the state has not met its burden of proof under
par. (b), the petitioner shall be discharged from the custody or supervision of the department. If the court is satisfied that the state has met its burden of proof under
par. (b), the court may proceed under
s. 980.06 to determine whether to modify the petitioner's existing commitment order.
980.09(2)
(2) Petition without secretary's approval. 980.09(2)(a)(a) A person may petition the committing court for discharge from custody or supervision without the secretary's approval. At the time of an examination under
s. 980.07 (1), the secretary shall provide the committed person with a written notice of the person's right to petition the court for discharge over the secretary's objection. The notice shall contain a waiver of rights. The secretary shall forward the notice and waiver form to the court with the report of the department's examination under
s. 980.07. If the person does not affirmatively waive the right to petition, the court shall set a probable cause hearing to determine whether facts exist that warrant a hearing on whether the person is still a sexually violent person. The committed person has a right to have an attorney represent him or her at the probable cause hearing, but the person is not entitled to be present at the probable cause hearing.
980.09(2)(b)
(b) If the court determines at the probable cause hearing under
par. (a) that probable cause exists to believe that the committed person is no longer a sexually violent person, then the court shall set a hearing on the issue. At a hearing under this paragraph, the committed person is entitled to be present and to the benefit of the protections afforded to the person under
s. 980.03. The district attorney or the department of justice, whichever filed the original petition, shall represent the state at a hearing under this paragraph. The hearing under this paragraph shall be to the court. The state has the right to have the committed person evaluated by experts chosen by the state. At the hearing, the state has the burden of proving by clear and convincing evidence that the committed person is still a sexually violent person.
980.09(2)(c)
(c) If the court is satisfied that the state has not met its burden of proof under
par. (b), the person shall be discharged from the custody or supervision of the department. If the court is satisfied that the state has met its burden of proof under
par. (b), the court may proceed under
s. 980.06 to determine whether to modify the person's existing commitment order.
980.09 History
History: 1993 a. 479.
980.09 Annotation
Persons committed under ch. 980 must be afforded the right to request a jury for discharge hearings under this section. State v. Post, 197 W (2d) 279, 541 NW (2d) 115 (1995).
980.10
980.10
Additional discharge petitions. In addition to the procedures under
s. 980.09, a committed person may petition the committing court for discharge at any time, but if a person has previously filed a petition for discharge without the secretary's approval and the court determined, either upon review of the petition or following a hearing, that the person's petition was frivolous or that the person was still a sexually violent person, then the court shall deny any subsequent petition under this section without a hearing unless the petition contains facts upon which a court could find that the condition of the person had so changed that a hearing was warranted. If the court finds that a hearing is warranted, the court shall set a probable cause hearing in accordance with
s. 980.09 (2) (a) and continue proceedings under
s. 980.09 (2) (b), if appropriate. If the person has not previously filed a petition for discharge without the secretary's approval, the court shall set a probable cause hearing in accordance with
s. 980.09 (2) (a) and continue proceedings under
s. 980.09 (2) (b), if appropriate.
980.10 History
History: 1993 a. 479.
980.10 Annotation
Persons committed under ch. 980 must be afforded the right to request a jury for discharge hearings under this section. State v. Post, 197 W (2d) 279, 541 NW (2d) 115 (1995).
980.105
980.105
Determination of county of residence. The court shall determine a person's county of residence for the purposes of this chapter by doing all of the following:
980.105(1)
(1) The court shall consider residence as the voluntary concurrence of physical presence with intent to remain in a place of fixed habitation and shall consider physical presence as prima facie evidence of intent to remain.
980.105(2)
(2) The court shall apply the criteria for consideration of residence and physical presence under
sub. (1) to the facts that existed on the date that the person committed the sexually violent offense that resulted in the sentence, placement or commitment that was in effect when the petition was filed under
s. 980.02.
980.105 History
History: 1995 a. 276.
980.11
980.11
Notice concerning supervised release or discharge. Effective date note
NOTE: Section 980.11 (title) is shown as amended eff. 6-1-97 by
1995 Wis. Act 440. Prior to 6-1-97 it reads:
Effective date text
980.11 Notice to victims.
980.11(1)(a)
(a) "Act of sexual violence" means an act or attempted act that is a basis for an allegation made in a petition under
s. 980.02 (2) (a).
980.11(1)(b)
(b) "Member of the family" means spouse, child, sibling, parent or legal guardian.
980.11(1)(c)
(c) "Victim" means a person against whom an act of sexual violence has been committed.
