980.02(2)(a)
(a) The person satisfies any of the following criteria:
980.02(2)(a)1.
1. The person has been convicted of a sexually violent offense.
980.02(2)(a)2.
2. The person has been found delinquent for a sexually violent offense.
980.02(2)(a)3.
3. The person has been found not guilty of a sexually violent offense by reason of mental disease or defect.
980.02(2)(ag)
(ag) The person is within 90 days of discharge or release, on parole, extended supervision or otherwise, from a sentence that was imposed for a conviction for a sexually violent offense, from a secured correctional facility, as defined in
s. 938.02 (15m), from a secured child caring institution, as defined in
s. 938.02 (15g), or from a secured group home, as defined in
s. 938.02 (15p), if the person was placed in the facility for being adjudicated delinquent under
s. 938.183 or
938.34 on the basis of a sexually violent offense or from a commitment order that was entered as a result of a sexually violent offense.
980.02(2)(c)
(c) The person is dangerous to others because the person's mental disorder creates a substantial probability that he or she will engage in acts of sexual violence.
980.02(3)
(3) A petition filed under this section shall state with particularity essential facts to establish probable cause to believe the person is a sexually violent person. If the petition alleges that a sexually violent offense or act that is a basis for the allegation under
sub. (2) (a) was an act that was sexually motivated as provided under
s. 980.01 (6) (b), the petition shall state the grounds on which the offense or act is alleged to be sexually motivated.
980.02(4)
(4) A petition under this section shall be filed in any of the following:
980.02(4)(a)
(a) The circuit court for the county in which the person was convicted of a sexually violent offense, adjudicated delinquent for a sexually violent offense or found not guilty of a sexually violent offense by reason of mental disease or defect.
980.02(4)(am)
(am) The circuit court for the county in which the person will reside or be placed upon his or her discharge from a sentence, release on parole or extended supervision or release from imprisonment, from a secured correctional facility, as defined in
s. 938.02 (15m), from a secured child caring institution, as defined in
s. 938.02 (15g), from a secured group home, as defined in
s. 938.02 (15p), or from a commitment order.
980.02(4)(b)
(b) The circuit court for the county in which the person is in custody under a sentence, a placement to 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 a commitment order.
980.02(5)
(5) Notwithstanding
sub. (4), if the department of justice decides to file a petition under
sub. (1) (a), it may file the petition in the circuit court for Dane County.
980.02 Annotation
A ch. 980 commitment is not an extension of a commitment under ch. 975, and s. 975.12 does not limit the state's ability to seek a separate commitment under ch. 980 of a person originally committed under ch. 975. State v. Post,
197 Wis. 2d 279,
541 N.W.2d 115 (1995).
980.02 Annotation
For purposes of determining the proper time to file a ch. 980 petition under sub. (2) (ag), a sentence imposed for a sexually violent offense includes a sentence imposed consecutively to any sentence for a sexually violent offense. State v. Keith,
216 Wis. 2d 61,
573 N.W.2d 888 (Ct. App. 1997).
980.02 Annotation
As used in this chapter, "substantial probability" and "substantially probable" both mean much more likely than not. This standard for dangerousness does not violate equal protection nor is the term unconstitutionally vague. State v. Curiel,
227 Wis. 2d 389,
597 N.W.2d 697 (1999).
980.02 Annotation
In deciding whether there is a substantial probability that the subject will commit future acts of sexual violence, the trier of fact is free to weigh expert testimony that conflicts and decide which is more reliable, to accept or reject an expert's testimony, including accepting only parts of the testimony, and to consider all non-expert testimony. State v. Kienitz,
227 Wis. 2d 423,
597 N.W.2d 712 (1999).
980.02 Annotation
To the extent that s. 938.35 (1) prohibits the admission of delinquency adjudications in ch. 980 proceedings, it is repealed by implication. State v. Matthew A.B.
231 Wis. 2d 688,
605 N.W.2d 598 (Ct. App. 1999)
980.02 Annotation
In a trial on a petition filed under sub. (2), the state has the burden to prove beyond a reasonable doubt that the petition was filed within 90 days of the subject's release or discharge based on a sexually violent offense. State v. Thiel, 2000 WI 67,
235 Wis. 2d 823,
612 N.W.2d 94. See also State v. Thiel, 2001 WI App 52,
241 Wis. 2d 439,
625 N.W.2d 321.
980.02 Annotation
While a commitment under ch. 980 is civil, a court does not lose subject matter jurisdiction because a petition is filed under a criminal case number. State v. Pharm, 2000 WI App 167,
238 Wis. 2d 97,
617 N.W.2d 163.
980.02 Annotation
The mandatory release date is not excluded in determining whether under sub. (2) (ag) a petition is filed within "90 days of discharge or release." State v. Pharm, 2000 WI App 167,
238 Wis. 2d 97,
617 N.W.2d 163.
980.02 Annotation
The time limit in sub. (2) (ag) is mandatory. There is no authority for the state to hold a person beyond the discharge date of a criminal sentence in order to file a ch. 980 petition. State v. Thomas, 2000 WI App 162,
238 Wis. 2d 216,
617 N.W.2d 230.
980.02 Annotation
Although sub. (2) (ag) refers to the current juvenile code, ch. 938, and makes no reference to the 1993-94 juvenile code, ch. 48, the circuit court has authority to proceed under ch. 980 against a person adjudicated delinquent under the former ch. 48. State v. Gibbs, 2001 WI App 83, 242 Wis.2d 640,
625 N.W. 2d 666.
980.02 Annotation
Keith is inapplicable to juveniles. The concept of consecutive sentences is foreign in the context of juvenile adjudications and dispositions. It was proper under sub. (2) (ag) to file a ch. 980 petition two days prior to the defendant's discharge from the sexual offense disposition although the defendant was subject to another adjudication that did not expire. State v. Wolfe, 2001 WI App 136,
246 Wis. 2d 233,
631 N.W.2d 240.
980.02 Annotation
Chapter 980 provides its own procedures for commencing actions, and, as such, chs. 801 and 802 are inapplicable to the commencement of ch. 980 actions. State v. Wolfe, 2001 WI App 136,
246 Wis. 2d 233,
631 N.W.2d 240.
980.02 Annotation
When a ch. 980 petition was filed within 90 days of release from a sentence for an offense that was not a sexually violent offense, which was being served concurrently with a shorter sentence imposed for a sexually violent offense, the petition was timely. State v. Treadway, 2002 WI App 195, ___Wis. 2d. ___,
651 N.W.2d 334.
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 a person who is the subject of a petition filed under
s. 980.02 or who has been committed under
s. 980.06 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 or other proceeding 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 an expert or professional person appointed by a court under this subsection to perform an examination and participate in the trial or other proceeding 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 audiovisual means.
980.03 Annotation
There are circumstances when comment on the defendant's silence is permitted. If a defendant refuses to be interviewed by the state's psychologist and the defense attorney challenges the psychologist's findings based on the lack of an interview, it is appropriate for the psychologist to testify about the refusal. State v. Adams,
223 Wis. 2d 60,
588 N.W.2d 336 (Ct. App. 1998).
980.03 Annotation
If all jurors agree that the defendant suffers from a mental disease, unanimity requirements are met, even if the jurors disagree on which disease predisposes the defendant to reoffend. State v. Pletz, 2000 WI App 221,
239 Wis. 2d 49,
619 N.W.2d 97.
980.03 Annotation
Chapter 980 provides its own procedures for commencing actions, and, as such, chs. 801 and 802 are inapplicable to the commencement of ch. 980 actions. State v. Wolfe, 2001 WI App 136,
246 Wis. 2d 233,
631 N.W.2d 240.
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), 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 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 Cross-reference
Cross Reference: See also ch.
HFS 99, Wis. adm. code.
980.04 Annotation
The rules of evidence apply to probable cause hearings under ch. 980. The exceptions to the rules for preliminary examinations also apply. Although s. 907.03 allows an expert to base an opinion on hearsay, an expert's opinion based solely on hearsay cannot constitute probable cause. State v. Watson,
227 Wis. 2d 167,
595 N.W.2d 403 (1999).
980.04 Annotation
In sub. (2), "in custody" means in custody pursuant to ch. 980 and does not apply to custody under a previously imposed sentence. State v. Brissette,
230 Wis. 2d 82,
601 N.W.2d 678 (Ct. App. 1999).
980.04 Annotation
Chapter 980 provides its own procedures for commencing actions, and, as such, chs. 801 and 802 are inapplicable to the commencement of ch. 980 actions. State v. Wolfe, 2001 WI App 136,
246 Wis. 2d 233,
631 N.W.2d 240.
980.04 Annotation
The 72-hour time limit in sub. (2) is directory rather than mandatory. However, the individual's due process rights prevent the state from indefinitely delaying the probable cause hearing when the subject of the petition is in custody awaiting the hearing and has made a request for judicial substitution. State v. Beyer, 2001 WI App 184,
247 Wis. 2d 1,
632 N.W.2d 872.
980.04 Annotation
Sub. (3) is not a rule regarding the admissibility of expert testimony. It provides the procedure for determining probable cause to believe a person is a sexually violent offender. The general rule for determining the qualification of an expert applies. State v. Sprosty, 2001 WI App 231,
248 Wis. 2d 480,
636 N.W.2d 213.
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 History
History: 1993 a. 479;
1999 a. 9.
980.05 Annotation
Sub. (1m) extends the rule protecting prearrest silence under the right against self-incrimination to the refusal of a commitment subject to participate in a formal evaluation prior to the filing of the commitment petition. State v. Zanelli,
212 Wis. 2d 358,
569 N.W.2d 301(Ct. App. 1997).
980.05 Annotation
Sub. (1m) does not require a sworn petition. There is no constitutional right to a sworn complaint in a criminal case. State v. Zanelli,
212 Wis. 2d 358,
569 N.W.2d 301 (Ct. App. 1997).
980.05 Annotation
This section does not confine expert testimony to any specific standard nor mandate the type or character of relevant evidence that the state may choose to meet its burden of proof. State v. Zanelli,
223 Wis. 2d 545,
589 N.W.2d 687 (Ct. App. 1998).
980.05 Annotation
The standard of review for commitments under ch. 980 is the standard applicable to the review of criminal cases--whether the evidence could have led the trier of fact to find beyond a reasonable doubt that the person subject to commitment is a sexually violent person. State v. Curiel,
227 Wis. 2d 389, 597 N.W.2d (1999).
980.05 Annotation
Sub. (1m) provides a respondent with a statutory right to be competent at trial. The procedure to effect that right should adhere to ss. 971.13 and 971.14. State v. Smith,
229 Wis. 2d 720,
600 N.W.2d 258 (Ct. App. 1999).
980.05 Annotation
The right to a jury trial under ch. 980 is governed by sub. (2) rather than case law governing the right to a jury trial in criminal proceedings. State v. Bernstein,
231 Wis. 2d 392,
605 N.W.2d 555 (1999).
980.05 Annotation
The sub. (2) requirement that the 2 persons who did not request the withdrawal of a request for a jury trial consent to the withdrawal does not require a personal statement from the person subject to the commitment proceeding. Consent may be granted by defense counsel. State v. Bernstein,
231 Wis. 2d 392,
605 N.W.2d 555 (1999).
980.05 Annotation
To the extent that s. 938.35 (1) prohibits the admission of delinquency adjudications in ch. 980 proceedings, it is repealed by implication. State v. Matthew A.B.
231 Wis. 2d 688,
605 N.W.2d 598 (Ct. App. 1999)
980.05 Annotation
Sub. (2) does not require that a respondent be advised by the court that a jury verdict must be unanimous in order for the withdrawal of a request for a jury trial to be valid. State v. Denman, 2001 WI App 96,
243 Wis. 2d 14,
626 N.W.2d 296.
980.05 Annotation
Chapter 980 respondents are afforded the same constitutional protections as criminal defendants. Although the doctrine of issue preclusion may generally apply in ch. 980 cases, application of the doctrine may be fundamentally unfair. When new evidence of victim recantation was offered at the ch. 980 trail, the defendant had a due process interest in gaining admission of the evidence to ensure accurate expert opinions on his mental disorder and future dangerousness when the experts' opinions presented were based heavily on the fact that the defendants committed the underlying crime. State v. Sorenson, 2002 WI 78,
254 Wis. 2d 54,
646 N.W.2d 354.
980.05 Annotation
A sexually violent person committed under ch. 980 preserves the right to appeal, as a matter of right, by filing postverdict motions within 20 days of the commitment order. State v. Treadway, 2002 WI App 195, ___Wis. 2d. ___,
651 N.W.2d 334.
980.05 Annotation
A parole and probation agent who had been employed full-time in a specialized sex-offender unit for 3 years during which he had supervised hundreds of sex offenders was prepared by both training and experience to assess a sex offender, and was qualified to render an opinion on whether he would reoffend. That the agent did not provide the nexus to any mental disorder did not render his testimony inadmissible. State v. Treadway, 2002 WI App 195, ___Wis. 2d. ___,
651 N.W.2d 334.
980.06
980.06
Commitment. 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. A commitment order under this section shall specify that the person be placed in institutional care.
980.06 Annotation
In the event that there is a failure to develop an appropriate treatment program, the remedy is to obtain appropriate treatment and not supervised release. State v. Seibert,
220 Wis. 2d 308,
582 N.W.2d 745 (Ct. App. 1998).
980.06 Annotation
Chapter 980 and s. 51.61 provide the statutory basis for a court to issue an involuntary medication order for individuals who suffer from a chronic mental illness and are committed pursuant to ch. 980. State v. Anthony D.B. 2000 WI 94,
237 Wis. 2d 1,
614 N.W.2d 435.
980.06 Annotation
The incremental infringement by s. 980.06 on the liberty interests of those who have a sexually violent, predatory past and are currently suffering from a mental disorder that makes them dangerous sexual predators does not violate constitutional guarantees of due process. State v. Ransdell, 2001 WI App 202,
247 Wis. 2d 613,
634 N.W.2d 871.
980.06 Annotation
Although ch. 51 is more "lenient" with those who are subject to its provisions than is ch. 980, the significant differences between the degree of danger posed by each of the two classes of persons subject to commitment under the two chapters, as well as the differences in what must be proven in order to commit under each, does not result in a violation of equal protection. State v. Williams, 2001 WI App 263,
249 Wis. 2d 1,
637 N.W.2d 791.
980.06 Annotation
Chapter 980, as amended, is not a punitive criminal statute. Because whether a statute is punitive is a threshold question for both double jeopardy and ex post facto analysis, neither of those clauses is violated by ch. 980. State v. Rachel, 2002 WI 81,
254 Wis. 2d 215,
646 N.W.2d 375.
980.06 Annotation
The mere limitation of a committed person's access to supervised release does not impose a restraint to the point that it violates due process. As amended, ch. 980 serves the legitimate and compelling state interests of providing treatment to the dangerously mentally ill and protecting the public from the dangerously mentally ill. The statute and is narrowly tailored to meet those interest, and, as such, it does not violate substantive due process. State v. Rachel, 2002 WI 81,
254 Wis. 2d 215,
646 N.W.2d 375.
980.06 Annotation
Commitment under ch. 980 does not require a separate factual finding that an individual's mental disorder involves serious difficulty for the person in controlling his or her behavior. Proof that the person's mental disorder predisposes the individual to engage in acts of sexual violence and establishes a substantial probability that the person will again commit those acts necessarily and implicitly includes proof that the person's mental disorder involves serious difficulty in controlling his or her behavior. State v. Laxton, 2002 WI 82,
254 Wis. 2d 185,
647 N.W.2d 784.
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).
