971.17(3)(a)(a) An order for commitment under this section shall specify either institutional care or conditional release. The court shall order institutional care if it finds by clear and convincing evidence that conditional release of the person would pose a significant risk of bodily harm to himself or herself or to others or of serious property damage. If the court does not make this finding, it shall order conditional release. In determining whether commitment shall be for institutional care or conditional release, the court may consider, without limitation because of enumeration, the nature and circumstances of the crime, the person's mental history and present mental condition, where the person will live, how the person will support himself or herself, what arrangements are available to ensure that the person has access to and will take necessary medication, and what arrangements are possible for treatment beyond medication.
971.17(3)(b)
(b) If the state proves by clear and convincing evidence that the person is not competent to refuse medication or treatment for the person's mental condition, under the standard specified in
s. 971.16 (3), the court shall issue, as part of the commitment order, an order that the person is not competent to refuse medication or treatment for the person's mental condition and that whoever administers the medication or treatment to the person shall observe appropriate medical standards.
971.17(3)(c)
(c) If the court order specifies institutional care, the department of health and family services shall place the person in an institution under
s. 51.37 (3) that the department considers appropriate in light of the rehabilitative services required by the person and the protection of public safety. If the person is not subject to a court order determining the person to be not competent to refuse medication or treatment for the person's mental condition and if the institution in which the person is placed determines that the person should be subject to such a court order, the institution may file with the court, with notice to the person and his or her counsel and the district attorney, a motion for a hearing, under the standard specified in
s. 971.16 (3), on whether the person is not competent to refuse medication or treatment. A report on which the motion is based shall accompany the motion and notice of motion and shall include a statement signed by a licensed physician that asserts that the person needs medication or treatment and that the person is not competent to refuse medication or treatment, based on an examination of the person by a licensed physician. Within 10 days after a motion is filed under this paragraph, the court shall determine the person's competency to refuse medication or treatment for the person's mental condition. At the request of the person, his or her counsel or the district attorney, the hearing may be postponed, but in no case may the postponed hearing be held more than 20 days after a motion is filed under this paragraph. If the district attorney, the person and his or her counsel waive their respective opportunities to present other evidence on the issue, the court shall determine the person's competency to refuse medication or treatment on the basis of the report accompanying the motion. In the absence of these waivers, the court shall hold an evidentiary hearing on the issue. If the state proves by evidence that is clear and convincing that the person is not competent to refuse medication or treatment, under the standard specified in
s. 971.16 (3), the court shall order that the person is not competent to refuse medication or treatment for the person's mental condition and that whoever administers the medication or treatment to the person shall observe appropriate medical standards.
971.17(3)(d)
(d) If the court finds that the person is appropriate for conditional release, the court shall notify the department of health and family services. The department of health and family services and the county department under
s. 51.42 in the county of residence of the person 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, medication, community support services, residential services, vocational services, and alcohol or other drug abuse treatment. The department of health and family services 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 conditional release, unless the county department, department of health and family services 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 of health and family services may arrange for another county to prepare the plan if that county agrees to prepare the plan and if the individual will be living in that county.
971.17(3)(e)
(e) An order for conditional release places the person in the custody and control of the department of health and family services. A conditionally released person is subject to the conditions set by the court and to the rules of the department of health and family services. Before a person is conditionally released by the court under this subsection, the court shall so notify the municipal police department and county sheriff for the area where the person will be residing. The notification requirement under this paragraph does not apply if a municipal department or county sheriff submits to the court a written statement waiving the right to be notified. If the department of health and family services alleges that a released person has violated any condition or rule, or that the safety of the person or others requires that conditional release be revoked, he or she may be taken into custody under the rules of the department. The department of health and family services shall submit a statement showing probable cause of the detention and a petition to revoke the order for conditional 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 of health and family services 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 the person or others requires that conditional release be revoked. If the court determines after hearing that any rule or condition of release has been violated, or that the safety of the person or others requires that conditional release be revoked, it may revoke the order for conditional release and order that the released person be placed in an appropriate institution under
s. 51.37 (3) until the expiration of the commitment or until again conditionally released under this section.
971.17(4)
(4) Petition for conditional release. 971.17(4)(a)(a) Any person who is committed for institutional care may petition the committing court to modify its order by authorizing conditional 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 conditional release was revoked. The director of the facility at which the person is placed may file a petition under this paragraph on the person's behalf at any time.
971.17(4)(b)
(b) If the person files a timely petition without counsel, the court shall serve a copy of the petition on the district attorney and, subject to
sub. (7) (b), refer the matter to the state public defender for determination of indigency 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.
971.17(4)(c)
(c) 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 conditional release, the examiner shall report on the type of treatment and services that the person may need while in the community on conditional release.
971.17(4)(d)
(d) 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 it finds by clear and convincing evidence that the person would pose a significant risk of bodily harm to himself or herself or to others or of serious property damage if conditionally released. In making this determination, the court may consider, without limitation because of enumeration, the nature and circumstances of the crime, the person's mental history and present mental condition, where the person will live, how the person will support himself or herself, what arrangements are available to ensure that the person has access to and will take necessary medication, and what arrangements are possible for treatment beyond medication.
971.17(4)(e)
(e) If the court finds that the person is appropriate for conditional release, the court shall notify the department of health and family services. The department of health and family services and the county department under
s. 51.42 in the county of residence of the person 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, medication, community support services, residential services, vocational services, and alcohol or other drug abuse treatment. The department of health and family services 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 conditional release, unless the county department, department of health and family services 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 of health and family services may arrange for another county to prepare the plan if that county agrees to prepare the plan and if the individual will be living in that county.
971.17(4m)(a)2.
2. "Member of the family" means spouse, child, sibling, parent or legal guardian.
971.17(4m)(a)3.
3. "Victim" means a person against whom a crime has been committed.
971.17(4m)(b)
(b) If the court conditionally releases a defendant under this section, the district attorney shall do all of the following in accordance with
par. (c):
971.17(4m)(b)1.
1. Make a reasonable attempt to notify the victim of the crime committed by the defendant or, if the victim died as a result of the crime, an adult member of the victim's family or, if the victim is younger than 18 years old, the victim's parent or legal guardian.
971.17(4m)(c)
(c) The notice under
par. (b) shall inform the department of corrections and the person under
par. (b) 1. of the defendant's name and conditional release date. The district attorney shall send the notice, postmarked no later than 7 days after the court orders the conditional release under this section, to the department of corrections and to the last-known address of the person under
par. (b) 1.
971.17(4m)(d)
(d) Upon request, the department of health and family services shall assist district attorneys in obtaining information regarding persons specified in
par. (b) 1.
971.17(5)
(5) Petition for termination. A person on conditional release, or the department of health and family services on his or her behalf, may petition the committing court to terminate the order of commitment. If the person files a timely petition without counsel, the court shall serve a copy of the petition on the district attorney and, subject to
sub. (7) (b), refer the matter to the state public defender for determination of indigency 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. The petition shall be determined as promptly as practicable by the court without a jury. The court shall terminate the order of commitment unless it finds by clear and convincing evidence that further supervision is necessary to prevent a significant risk of bodily harm to the person or to others or of serious property damage. In making this determination, the court may consider, without limitation because of enumeration, the nature and circumstances of the crime, the person's mental history and current mental condition, the person's behavior while on conditional release, and plans for the person's living arrangements, support, treatment and other required services after termination of the commitment order. A petition under this subsection may not be filed unless at least 6 months have elapsed since the person was last placed on conditional release or since the most recent petition under this subsection was denied.
971.17(6)
(6) Expiration of commitment order. 971.17(6)(a)(a) At least 60 days prior to the expiration of a commitment order under
sub. (1), the department of health and family services shall notify all of the following:
971.17(6)(a)2.
2. The district attorney of the county in which the commitment order was entered.
971.17(6)(b)
(b) Upon the expiration of a commitment order under
sub. (1), the court shall discharge the person, subject to the right of the department of health and family services or the appropriate county department under
s. 51.42 or
51.437 to proceed against the person under
ch. 51 or
55. If none of those departments proceeds against the person under
ch. 51 or
55, the court may order the proceeding.
971.17(6m)
(6m) Notice about termination or discharge. 971.17(6m)(a)2.
2. "Member of the family" means spouse, child, sibling, parent or legal guardian.
971.17(6m)(a)3.
3. "Victim" means a person against whom a crime has been committed.
971.17(6m)(b)
(b) If the court orders that the defendant's commitment is terminated under
sub. (5) or that the defendant be discharged under
sub. (6), the department of health and family services shall do all of the following in accordance with
par. (c):
971.17(6m)(b)1.
1. If the person has submitted a card under
par. (d) requesting notification, make a reasonable attempt to notify the victim of the crime committed by the defendant, or, if the victim died as a result of the crime, an adult member of the victim's family or, if the victim is younger than 18 years old, the victim's parent or legal guardian.
971.17(6m)(c)
(c) The notice under
par. (b) shall inform the department of corrections and the person under
par. (b) 1. of the defendant's name and termination or discharge date. The department of health and family services shall send the notice, postmarked at least 7 days before the defendant's termination or discharge date, to the department of corrections and to the last-known address of the person under
par. (b) 1.
971.17(6m)(d)
(d) The department of health and family services shall design and prepare cards for persons specified in
par. (b) 1. to send to the department. The cards shall have space for these persons to provide their names and addresses, the name of the applicable defendant and any other information the department determines is necessary. The department shall provide the cards, without charge, to district attorneys. District attorneys shall provide the cards, without charge, to persons specified in
par. (b) 1. These persons may send completed cards to the department. All departmental records or portions of records that relate to mailing addresses of these persons are not subject to inspection or copying under
s. 19.35 (1), except as needed to comply with a request under
sub. (4m) (d) or
s. 301.46 (3) (d).
971.17(7)(a)(a) The committing court shall conduct all hearings under this section. The person shall be given reasonable notice of the time and place of each such hearing. The court may designate additional persons to receive these notices.
971.17(7)(b)
(b) Without limitation by enumeration, at any hearing under this section, the person has the right to:
971.17(7)(b)1.
1. 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).
971.17(7)(c)
(c) If the person wishes to be examined by a physician, as defined in
s. 971.16 (1) (a), or a psychologist, as defined in
s. 971.16 (1) (b), or other expert of his or her choice, the procedure under
s. 971.16 (4) shall apply. Upon motion of an indigent person, the court shall appoint a qualified and available examiner for the person at public expense. Examiners for the person or the district attorney 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).
971.17(7)(d)
(d) 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 audiovisual means.
971.17(8)
(8) Applicability. This section governs the commitment, release and discharge of persons adjudicated not guilty by reason of mental disease or mental defect for offenses committed on or after January 1, 1991. The commitment, release and discharge of persons adjudicated not guilty by reason of mental disease or mental defect for offenses committed prior to January 1, 1991, shall be governed by s.
971.17, 1987 stats., as affected by
1989 Wisconsin Act 31.
971.17 History
History: 1975 c. 430;
1977 c. 353;
1977 c. 428 s.
115;
1983 a. 359; Sup. Ct. Order, 141 Wis. 2d xiii (1987);
1987 a. 394;
1989 a. 31,
142,
334,
359; Sup. Ct. Order, 158 Wis. 2d xvii (1990);
1991 a. 39,
189,
269;
1993 a. 16,
98,
227;
1995 a. 27 s.
9126 (19);
1995 a. 417,
425,
440,
448;
1997 a. 35,
130,
181,
252,
275;
1999 a. 89.
Effective date note
Judicial Council Note, 1990: Sub. (7) (d) [created] conforms the standard for admission of testimony by telephone or live audio-visual means at hearings under this section to that governing other evidentiary criminal proceedings. [Re Order eff. 1-1-91]
971.17 Annotation
Neither sub. (3), the due process clause or equal protection clause provide a right to a jury trial in recommitment proceedings. State v. M.S.
159 Wis. 2d 206,
464 N.W.2d 41 (Ct. App. 1990).
971.17 Annotation
The state, and not the county, is responsible for funding the conditions for a person conditionally released under this section. Rolo v. Goers,
174 Wis. 2d 709,
497 N.W.2d 724 (Ct. App. 1993).
971.17 Annotation
It is not a denial of due process for an insanity acquitee to be confined to a state health facility for so long as he or she is considered dangerous, although sane, provided that: (1) the commitment does not exceed the maximum term of imprisonment that could have been imposed for the criminal offense charged; and (2) the state bears the burden of proof that the commitment should continue because the individual is a danger to himself, herself or others. State v. Randall,
192 Wis. 2d 800,
532 N.W.2d 94 (1995).
971.17 Annotation
The sentence of a defendant convicted of committing a crime while committed due to a prior not guilty by reason of mental disease or defect commitment under s. 971.17 may not be served concurrent with the commitment. State v. Szulczewski,
209 Wis. 2d 1,
561 N.W.2d 781 (Ct. App. 1997).
971.17 Annotation
A court may not order a prison sentence consecutive to an s. 971.17 commitment. A sentence can only be imposed concurrent or consecutive to another sentence. State v. Harr,
211 Wis. 2d 584,
568 N.W.2d 307 (Ct. App. 1997).
971.17 Annotation
A commitment under this section is legal cause under s. 973.15 (8) to stay the sentence of a defendant who commits a crime while serving the commitment. Whether to stay the sentence while the commitment is in effect or to begin the sentence immediately is within the sentencing court's discretion. State v. Szulczewski,
216 Wis. 2d 494,
574 N.W.2d 660 (1998).
971.17 Annotation
Sub. (3) (c) is unconstitutional to the extent that it allows administration of psychotropic medication to an inmate based on a finding of incompetence to refuse without there being a finding that the inmate is dangerous to himself or others. Enis. v. Department of Health and Social Service.
962 F. Supp. 1192 (1997).
971.18
971.18
Inadmissibility of statements for purposes of examination. A statement made by a person subjected to psychiatric examination or treatment pursuant to this chapter for the purposes of such examination or treatment shall not be admissible in evidence against the person in any criminal proceeding on any issue other than that of the person's mental condition.
971.18 History
History: 1993 a. 486.
971.19(1)(1) Criminal actions shall be tried in the county where the crime was committed, except as otherwise provided.
971.19(2)
(2) Where 2 or more acts are requisite to the commission of any offense, the trial may be in any county in which any of such acts occurred.
971.19(3)
(3) Where an offense is committed on or within one-fourth of a mile of the boundary of 2 or more counties, the defendant may be tried in any of such counties.
971.19(4)
(4) If a crime is committed in, on or against any vehicle passing through or within this state, and it cannot readily be determined in which county the crime was committed, the defendant may be tried in any county through which such vehicle has passed or in the county where the defendant's travel commenced or terminated.
971.19(5)
(5) If the act causing death is in one county and the death ensues in another, the defendant may be tried in either county. If neither location can be determined, the defendant may be tried in the county where the body is found.
971.19(6)
(6) If an offense is commenced outside the state and is consummated within the state, the defendant may be tried in the county where the offense was consummated.
971.19(7)
(7) If a crime is committed on boundary waters at a place where 2 or more counties have common jurisdiction under
s. 2.03 or
2.04 or under any other law, the prosecution may be in either county. The county whose process against the offender is first served shall be conclusively presumed to be the county in which the crime was committed.
971.19(8)
(8) In an action for a violation of
s. 948.31, the defendant may be tried in the county where the crime was committed or the county of lawful residence of the child.
971.19(9)
(9) In an action under
s. 301.45 (6) (a) or
(ag), the defendant may be tried in the defendant's county of residence at the time that the complaint is filed. If the defendant does not have a county of residence in this state at the time that the complaint is filed, or if the defendant's county of residence is unknown at the time that the complaint is filed, the defendant may be tried in any of the following counties:
971.19(9)(b)
(b) The county in which he or she was convicted, found not guilty or not responsible by reason of mental disease or defect or adjudicated delinquent for the sex offense that requires the person to register under
s. 301.45.
971.19(9)(c)
(c) If the defendant is required to register under
s. 301.45 (1g) (dt), the county in which the person was found to be a sexually violent person under
ch. 980.
971.19(9)(d)
(d) If the person is required to register only under
s. 301.45 (1g) (f) or
(g), any county in which the person has been a student in this state or has been employed or carrying on a vocation in this state.
971.19(10)
(10) In an action under
s. 30.547 for intentionally falsifying an application for a certificate of number, a registration or a certificate of title, the defendant may be tried in the defendant's county of residence at the time that the complaint is filed, in the county where the defendant purchased the boat if purchased from a dealer or the county where the department of natural resources received the application.
971.19 Annotation
When failure to file a registration form and the act of soliciting contributions were elements of the offense, venue was proper in either of the 2 counties under sub. (2). Blenski v. State,
73 Wis. 2d 685,
245 N.W.2d 906.
971.20
971.20
Substitution of judge. 971.20(1)
(1)
Definition. In this section, "action" means all proceedings before a court from the filing of a complaint to final disposition at the trial level.
971.20(2)
(2) One substitution. In any criminal action, the defendant has a right to only one substitution of a judge, except under
sub. (7). The right of substitution shall be exercised as provided in this section.
971.20(3)
(3) Substitution of judge assigned to preliminary examination. 971.20(3)(a)(a) In this subsection, "judge" includes a court commissioner who is assigned to conduct the preliminary examination.
971.20(3)(b)
(b) A written request for the substitution of a different judge for the judge assigned to preside at the preliminary examination may be filed with the clerk, or with the court at the initial appearance. If filed with the clerk, the request must be filed at least 5 days before the preliminary examination unless the court otherwise permits. Substitution of a judge assigned to a preliminary examination under this subsection exhausts the right to substitution for the duration of the action, except under
sub. (7).
971.20(4)
(4) Substitution of trial judge originally assigned. A written request for the substitution of a different judge for the judge originally assigned to the trial of the action may be filed with the clerk before making any motions to the trial court and before arraignment.
971.20(5)
(5) Substitution of trial judge subsequently assigned. If a new judge is assigned to the trial of an action and the defendant has not exercised the right to substitute an assigned judge, a written request for the substitution of the new judge may be filed with the clerk within 15 days of the clerk's giving actual notice or sending notice of the assignment to the defendant or the defendant's attorney. If the notification occurs within 20 days of the date set for trial, the request shall be filed within 48 hours of the clerk's giving actual notice or sending notice of the assignment. If the notification occurs within 48 hours of the trial or if there has been no notification, the defendant may make an oral or written request for substitution prior to the commencement of the proceedings.
971.20(6)
(6) Substitution of judge in multiple defendant actions. In actions involving more than one defendant, the request for substitution shall be made jointly by all defendants. If severance has been granted and the right to substitute has not been exercised prior to the granting of severance, the defendant or defendants in each action may request a substitution under this section.
971.20(7)
(7) Substitution of judge following appeal. If an appellate court orders a new trial or sentencing proceeding, a request under this section may be filed within 20 days after the filing of the remittitur by the appellate court, whether or not a request for substitution was made prior to the time the appeal was taken.
971.20(8)
(8) Procedures for clerk. Upon receiving a request for substitution, the clerk shall immediately contact the judge whose substitution has been requested for a determination of whether the request was made timely and in proper form. If no determination is made within 7 days, the clerk shall refer the matter to the chief judge for the determination and reassignment of the action as necessary. If the request is determined to be proper, the clerk shall request the assignment of another judge under
s. 751.03.
971.20(9)
(9) Judge's authority to act. Upon the filing of a request for substitution in proper form and within the proper time, the judge whose substitution has been requested has no authority to act further in the action except to conduct the initial appearance, accept pleas and set bail.
