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;
2001 a. 95,
109;
2003 a. 50;
2005 a. 277,
431.
971.17 Cross-reference
Cross Reference: See also ch.
HFS 98, Wis. adm. code.
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 the equal protection clause provides 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),
94-1053.
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),
96-1323.
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),
96-2815.
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 495,
574 N.W.2d 660 (1998),
96-1323.
971.17 Annotation
The 30-day requirement in sub. (3) (e) is directory. The failure to have a hearing within 30 days of filing a petition to revoke a conditional release does not cause the court to lose competence to decide a second petition. State v. Schertz, 2002 WI App 289,
258 Wis. 2d 351,
655 N.W.2d 175,
02-0789.
971.17 Annotation
Section 51.75, the interstate compact on mental health, does not apply to individuals found not guilty of criminal charges by reason of mental disease or defect in accord with this section. State v. Devore, 2004 WI App 87,
272 Wis. 2d 383,
679 N.W.2d 890,
03-2323.
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. DHSS,
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(11)
(11) In an action under
s. 943.201, the defendant may be tried in the county where the victim or intended victim resided at the time of the offense or in any other county designated under this section. In an action under
s. 943.203, the defendant may be tried in the county where the victim or intended victim was located at the time of the offense or in any other county designated under this section.
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 (1976).
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 circuit 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.
971.20(10)
(10) Form of request. A request for substitution of a judge may be made in the following form:
STATE OF WISCONSIN
CIRCUIT COURT
.... County
State of Wisconsin
vs.
....(Defendant)
Pursuant to
s. 971.20 the defendant (or defendants) request (s) a substitution for the Hon. .... as judge in the above entitled action.
Dated ...., .... (year)
....(Signature of defendant or defendant's attorney)
971.20(11)
(11) Return of action to substituted judge. Upon the filing of an agreement signed by the defendant or defendant's attorney and by the prosecuting attorney, the substituted judge and the substituting judge, the criminal action and all pertinent records shall be transferred back to the substituted judge.
971.20 Note
NOTE: See the 1979-80 Statutes for notes and annotations relating to 971.20 prior to its repeal and recreation by ch. 137, laws of 1981.
971.20 Note
Judicial Council Note, 1981: Section 971.20 has been revised to clarify its objective of allowing defendants in criminal trials one substitution of the assigned judge upon making a timely request. The statute is not to be used for delay nor for "judge shopping," but is to ensure a fair and impartial trial for the defendants. The statute does not govern removal for cause of the assigned judge through an affidavit of prejudice.
971.20 Annotation
Sub. (2) clarifies that the defendant has a right to only one substitution of judge in a criminal action, unless an appellate court orders a new trial. Prior sub. (2) so provided, but the effect of this provision was unclear in light of the introductory phrase of prior sub. (3).
971.20 Annotation
Sub. (3) allows the defendant's right of substitution to be used against the judge assigned to the preliminary examination and specifies the timing of these requests.
971.20 Annotation
Sub. (4) allows the defendant's right of substitution to be used against the judge originally assigned to preside at trial, specifying the timing of these requests.
971.20 Annotation
Sub. (5) allows the defendant's right of substitution to be used against a judge assigned to preside at trial in place of the judge originally assigned, specifying the timing of these requests.
971.20 Annotation
Sub. (6) clarifies that all defendants in a single action must join in a substitution request.
971.20 Annotation
Sub. (7) allows a substitution request to be made upon appellate remand for a new trial, irrespective of whether a substitution of judge was requested prior to the appeal. It is the only exception to the rule of one substitution per action. The time limit for the request is tied to filing of the remittitur, in accordance with Rohl v. State,
97 Wis. 2d 514 (1980). [LRB NOTE: Senate Amendment 1 revised this subsection to also allow the substitution request to be made upon appellate remand for new sentencing proceedings.]
971.20 Annotation
Sub. (8) provides for the determination of the timeliness and propriety of the substitution request to be made by the chief judge if the trial judge fails to do so within 7 days.
971.20 Annotation
Sub. (9) is prior sub. (2), amended to allow the judge whose substitution has been requested to accept any plea. The prior statute allowed the judge to accept only pleas of not guilty. This revision promotes judicial economy by allowing the judge whose substitution has been requested to accept a guilty or no contest plea tendered by the defendant before the action is reassigned. Defendants preferring to have guilty or no contest pleas accepted by the substituting judge may obtain that result by standing mute or pleading not guilty until after the action has been reassigned.
971.20 Annotation
Sub. (10) is prior sub. (5).
971.20 Annotation
Sub. (11) is prior sub. (6). [Bill 163-S]
971.20 Annotation
When an appellate court remands for the exercise of discretion in ordering restitution, it has not remanded for a sentencing proceeding, and the defendant is not entitled to substitution under sub. (7). State v. Foley,
153 Wis. 2d 748,
451 N.W.2d 796 (Ct. App. 1989).
971.20 Annotation
When an initial appearance is conducted before the judge assigned to hear the matter, strict application of the filing deadline is appropriate. When the intake system does not provide adequate notice of the assigned judge prior to arraignment, deadlines are relaxed to allow the defendant to intelligently exercise the right. Tinti v. Waukesha County Circuit Court,
159 Wis. 2d 783,
464 N.W.2d 853 (Ct. App. 1990).
