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 under the criteria specified in
sub. (4) (b), the examiner shall report on the type of treatment and services that the person may need while in the community on supervised release. The county shall pay the costs of an examiner appointed under this subsection as provided under
s. 51.20 (18) (a).
980.08(4)(a)(a) 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) (b),
(c), and
(d).
980.08(4)(b)
(b) The court shall grant the petition unless the state proves by clear and convincing evidence one of the following:
980.08(4)(b)1.
1. That it is still likely that the person will engage in acts of sexual violence if the person is not continued in institutional care.
980.08(4)(b)2.
2. That the person has not demonstrated significant progress in his or her treatment or the person has refused treatment.
980.08(4)(c)
(c) In making a decision under
par. (b), 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, including pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen if the person is a serious child sex offender. A decision under
par. (b) on a petition filed by a person who is a serious child sex offender may not be made based on the fact that the person is a proper subject for pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen or on the fact that the person is willing to participate in pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen.
980.08(5)
(5) If the court finds that the person is appropriate for supervised release, the court shall notify the department. The department shall make its best effort to arrange for placement of the person in a residential facility or dwelling that is in the person's county of residence, as determined by the department under
s. 980.105. The department 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, counseling, medication, community support services, residential services, vocational services, and alcohol or other drug abuse treatment. In developing a plan for where the person may reside while on supervised release, the department shall consider the proximity of any potential placement to the residence of other persons on supervised release and to the residence of persons who are in the custody of the department of corrections and regarding whom a sex offender notification bulletin has been issued to law enforcement agencies under
s. 301.46 (2m) (a) or
(am). If the person is a serious child sex offender, the plan shall address the person's need for pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen. 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 any county where there is a facility in which persons committed to institutional care under this chapter are placed unless that county is also the person's county of residence.
980.08(6m)
(6m) An order for supervised release places the person in the custody and control of the department. 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 plan for supervised release approved by the court under
sub. (5). 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 subsection 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 72 hours after the detention, excluding Saturdays, Sundays and legal holidays. 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 this section.
980.08 Cross-reference
Cross Reference: See also ch.
HFS 98, Wis. adm. code.
980.08 Annotation
Sub. (6m) [formerly s. 980.06 (2) (d)} requires post-hearing notice to the local law enforcement agencies. In re Commitment of Goodson,
199 Wis. 2d 426,
544 N.W.2d 611 (Ct. App. 1996),
95-0664.
980.08 Annotation
Whether in a proceeding for an initial ch. 980 commitment or a later petition for supervised release, there is no requirement that the state prove the person is treatable. State v. Seibert,
220 Wis. 2d 308,
582 N.W.2d 745 (Ct. App. 1998).
980.08 Annotation
There is no exception under sub. (5) for a court to refuse to order release after it determines under sub. (4) that release is appropriate. If treatment programs are unavailable, the court shall order a county, through DHFS, to prepare a plan and place the person on supervised release in that county The court may order the county to create whatever programs or facilities are necessary to accommodate the supervised release. State v. Sprosty,
227 Wis. 2d 316,
595 N.W.2d 692 (1999).
980.08 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).
980.08 Annotation
An institutionalized sex offender who agreed to a stipulation providing supervised release, giving up his right to a jury trial on his discharge petition in exchange, had a constitutional right to enforcement of the agreement. State v. Krueger, 2001 WI App 76,
242 Wis. 2d 793,
626 N.W.2d 83.
980.08 Annotation
An indigent sexually violent person is constitutionally entitled to assistance of counsel in bringing a first appeal as of right from a denial of his or her petition for supervised release. State ex rel. Seibert v. Macht, 2001 WI 67,
244 Wis. 2d 378,
627 N.W.2d 881.
980.08 Annotation
A person subject to a proceeding to revoke supervised release is entitled to the same due process protections as afforded persons in probation and parole revocation proceedings. Notice of the grounds that are the basis for the revocation must be given. A court can only base a revocation on the grounds of public safety under sub. (6m) when notice has been properly given. State v. VanBronkhorst, 2001 WI App 190,
247 Wis. 2d 247,
633 N.W.2d 236.
980.08 Annotation
A sexual assault need not occur and the person's behavior need not be criminal before the court can conclude that there is a substantial probability that a person will reoffend if institutional care is not continued. The relevant inquiry under sub. (4) is whether the behavior indicates a likelihood to reoffend. State v. Sprosty, 2001 WI App 231,
248 Wis. 2d 480,
636 N.W.2d 213.
980.08 Annotation
A trial court's decision whether to grant a request for conditional release is subject to a discretionary standard of review of whether the trial court properly exercised its discretion in making its decision. State v. Wenk, 2001 WI App 268,
248 Wis. 2d 714,
637 N.W.2d 417.
980.08 Annotation
Sub. (6m), not s. 806.07 (1) (h), governs granting relief to the state from a ch. 980 committee's supervised release when the committee is confined in an institution awaiting placement on supervised release. Sub. (6m) provides no procedure for initiating revocation other than by the department of health and family services action, preventing courts or prosecutors from initiating revocations. State v. Morford, 2004 WI 5,
268 Wis. 2d 300,
674 N.W.2d 349,
01-2461.
980.08 Annotation
Ch. 980 was not unconstitutionally applied to the defendant when an order for supervised release could not be carried out due to an inability to find an appropriate placement and the defendant remained in custody. Any judicial decision that puts the community at risk because of what agents of government may have done or not done must balance the potential injury to society's interests against the potential benefits that would flow from any rule designed to deter future conduct by those agents. State v. Schulpius, 2004 WI App 39,
270 Wis. 2d 427,
678 N.W.2d 369,
02-1056.
980.08 Annotation
A rule regulating the conduct of a sexually violent person on supervised release satisfies the procedural due process requirement of adequate notice if it is sufficiently precise for the probationer to know what conduct is required or prohibited. State v. Burris, 2004 WI 91, ___ Wis. 2d ___, ___ N.W.2d ___,
00-1425.
980.08 Annotation
Under sub. (6m) [formerly s. 980.06 (2) (d)], a circuit court must determine whether any rule or condition of release has been violated or whether the safety of others requires revocation. A circuit court is not required to expressly consider alternatives to revocation before revoking a sexually violent person's supervised release when the court determines that the safety of the public requires the person's commitment to a secure facility. State v. Burris, 2004 WI 91, ___ Wis. 2d ___, ___ N.W.2d ___,
00-1425.
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 to determine, using the criteria specified in
s. 980.08 (4) (b), whether to modify the petitioner's existing commitment order by authorizing supervised release.
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 to determine, using the criteria specified in
s. 980.08 (4) (b), whether to modify the person's existing commitment order by authorizing supervised release.
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 Wis. 2d 279,
541 N.W.2d 115 (1995),
94-2356.
980.09 Annotation
Sub. (2) (a) does not contemplate an evidentiary hearing as is provided under sub. (2) (b). Under sub. (2) (a), the hearing is a paper review of the reexamination reports that allows the committing court to weed out frivolous petitions. State v. Paulick,
213 Wis. 2d 432,
570 N.W.2d 626 (Ct. App. 1997).
980.09 Annotation
The right to counsel under sub. (2) (a) is subject to the same standards and procedures for resolving right to counsel issues as in criminal cases. State v. Thiel, 2001 WI App 52,
241 Wis. 2d 465,
626 N.W.2d 26.
980.09 Annotation
Sub. (2) (a) does not allow unlimited submission of evidence, but does allow the submission of a second medical examination report. State v. Thayer, 2001 WI App 51,
241 Wis. 2d 417,
626 N.W.2d 811.
980.09 Annotation
Probable cause that a detainee is no longer a sexually violent person is not demonstrated by an expert's conclusion that the detainee has the ability to control his or her behavior. A court must not only consider whether the person has the ability to make choices, but the degree to which those choices are driven by a mental disorder. Pedophilia is a mental disorder that by definition includes a diagnosis of lack of control. State v. Schiller, 2003 WI App 195,
266 Wis. 2d 992,
669 N.W.2d 747,
02-2963.
980.09 Annotation
Progress in treatment is one way of showing that a person is not still a sexually violent person under sub. (2) (a). A new diagnosis is another. A new diagnosis need not attack the original finding that an individual was sexually violent, but focuses on the present and is evidence of whether an individual is still a sexually violent person. State v. Pocan, 2003 WI App 233,
267 Wis. 2d 953,
671 N.W.2d 680,
02-3342.
980.09 Annotation
The question at a sub. (2) (a) probable cause hearing is whether probable cause exists to establish that the individual seeking discharge is no longer a sexually violent person and is not whether the individual is substantially probable to engage in acts of sexual violence if placed on supervised release or even if discharged from commitment. Probable cause to believe a person is no longer a sexually violent person is not satisfied by a recommendation of supervised release without more. State v. Thiel, 2004 WI App 140, ___ Wis. 2d ___, ___ N.W.2d ___,
03-2098.
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 Wis. 2d 279,
541 N.W.2d 115 (1995),
94-2356.
980.101
980.101
Reversal, vacation or setting aside of judgment relating to a sexually violent offense; effect. 980.101(1)
(1) In this section, "judgment relating to a sexually violent offense" means a judgment of conviction for a sexually violent offense, an adjudication of delinquency on the basis of a sexually violent offense, or a judgment of not guilty of a sexually violent offense by reason of mental disease or defect.
980.101(2)
(2) If, at any time after a person is committed under
s. 980.06, a judgment relating to a sexually violent offense committed by the person is reversed, set aside, or vacated and that sexually violent offense was a basis for the allegation made in the petition under
s. 980.02 (2) (a), the person may bring a motion for postcommitment relief in the court that committed the person. The court shall proceed as follows on the motion for postcommitment relief:
980.101(2)(a)
(a) If the sexually violent offense was the sole basis for the allegation under
s. 980.02 (2) (a) and there are no other judgments relating to a sexually violent offense committed by the person, the court shall reverse, set aside, or vacate the judgment under
s. 980.05 (5) that the person is a sexually violent person, vacate the commitment order, and discharge the person from the custody or supervision of the department.
980.101(2)(b)
(b) If the sexually violent offense was the sole basis for the allegation under
s. 980.02 (2) (a) but there are other judgments relating to a sexually violent offense committed by the person that have not been reversed, set aside, or vacated, or if the sexually violent offense was not the sole basis for the allegation under
s. 980.02 (2) (a), the court shall determine whether to grant the person a new trial under
s. 980.05 because the reversal, setting aside, or vacating of the judgment for the sexually violent offense would probably change the result of the trial.
980.101(3)
(3) An appeal may be taken from an an order entered under
sub. (2) as from a final judgment.
980.101 History
History: 2001 a. 16.
980.105
980.105
Determination of county of residence. The department 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 department 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 department 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;
2001 a. 16.
980.105 Annotation
A person's county of residence shall be determined based on the facts that existed on the date of the underlying offense. A court does not have jurisdiction merely because the defendant was in a Wisconsin prison at the time the petition was filed. State v. Burgess, 2002 WI App 264,
258 Wis. 2d 548,
654 N.W.2d 81,
00-3074. Affirmed on other grounds. 2003 WI 71, 262 WI 2d 354,
665 N.W.2d 124,
00-3074.
980.105 Annotation
The circuit court had jurisdiction to conduct ch. 980 proceedings involving an enrolled tribal member who committed the underlying sexual offense on an Indian reservation. State v. Burgess, 2003 WI 71, 262 WI 2d 354,
665 N.W.2d 124,
00-3074.
980.11
980.11
Notice concerning supervised release or discharge. 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.
980.11(2)
(2) If the court places a person on supervised release under
s. 980.08 or discharges a person under
s. 980.09 or
980.10, the department shall do all of the following:
980.11(2)(am)
(am) Make a reasonable attempt to notify whichever of the following persons is appropriate, if he or she can be found, in accordance with
sub. (3):
980.11(2)(am)2.
2. An adult member of the victim's family, if the victim died as a result of the act of sexual violence.
980.11(2)(am)3.
3. The victim's parent or legal guardian, if the victim is younger than 18 years old.
980.11(3)
(3) The notice under
sub. (2) shall inform the department of corrections and the person under
sub. (2) (am) of the name of the person committed under this chapter and the date the person is placed on supervised release or discharged. The department shall send the notice, postmarked at least 7 days before the date the person committed under this chapter is placed on supervised release or discharged, to the department of corrections and to the last-known address of the person under
sub. (2) (am).
980.11(4)
(4) The department shall design and prepare cards for persons specified in
sub. (2) (am) to send to the department. The cards shall have space for these persons to provide their names and addresses, the name of the person committed under this chapter and any other information the department determines is necessary. The department shall provide the cards, without charge, to the department of justice and district attorneys. The department of justice and district attorneys shall provide the cards, without charge, to persons specified in
sub. (2) (am). These persons may send completed cards to the department of health and family services. All records or portions of records of the department of health and family services 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 by the department of corrections under
s. 301.46 (3) (d).
980.12
980.12
Department duties; costs. 980.12(1)
(1) Except as provided in
ss. 980.03 (4) and
980.08 (3), the department shall pay from the appropriations under
s. 20.435 (2) (a) and
(bm) for all costs relating to the evaluation, treatment and care of persons evaluated or committed under this chapter.
980.12(2)
(2) By February 1, 2002, the department shall submit a report to the legislature under s.
13.172 (2) concerning the extent to which pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen has been required as a condition of supervised release under s.
980.06, 1997 stats., or
s. 980.08 and the effectiveness of the treatment in the cases in which its use has been required.
980.13
980.13
Applicability. This chapter applies to a sexually violent person regardless of whether the person engaged in acts of sexual violence before, on or after June 2, 1994.
980.13 History
History: 1993 a. 479.
