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.
