The fact that a defendant is not competent to proceed does not preclude a hearing under s. 968.38 (4)
unless the probable cause finding required to be made at the hearing cannot be fairly made without the personal participation of the defendant.
Judicial Council Committee's Note, 1981:
Fundamental fairness precludes criminal prosecution of a defendant who is not mentally competent to exercise his or her constitutional and procedural rights. State ex rel. Matalik v. Schubert, 57 Wis. 2d 315
, 322 (1973).
Sub. (1) states the competency standard in conformity with Dusky v. U.S., 362 U.S. 402
(1960) and State ex rel. Haskins v. Dodge County Court, 62 Wis. 2d 250
, 265 (1974). Competency is a judicial rather than a medical determination. Not every mentally disordered defendant is incompetent; the court must consider the degree of impairment in the defendant's capacity to assist counsel and make decisions which counsel cannot make for him or her. See State v. Harper, 57 Wis. 2d 543
(1973); Norwood v. State, 74 Wis. 2d 343
(1976); State v. Albright, 96 Wis. 2d 122
(1980); Pickens v. State, 96 Wis. 2d 549
Sub. (2) clarifies that a defendant who requires medication to remain competent is nevertheless competent; the court may order the defendant to be administered such medication for the duration of the criminal proceedings under s. 971.14 (5) (c).
Sub. (3) is identical to prior s. 971.14 (6). It has been renumbered for better statutory placement, adjacent to the rule which it clarifies. [Bill 765-A]
Defense counsel having reason to doubt the competency of a client must raise the issue with the court, strategic considerations notwithstanding. State v. Johnson, 133 Wis. 2d 207
, 395 N.W.2d 176
A probationer has a right to a competency determination when, during a revocation proceeding, the administrative law judge has reason to doubt the probationer's competence. The determination shall be made by the circuit court in the county of sentencing, which shall adhere to this section and s. 971.14 to the extent practicable. State ex rel. Vanderbeke v. Endicott, 210 Wis. 2d 502
, 563 N.W.2d 883
There is a higher standard for determining competency to represent oneself than for competency to stand trial, based on the defendant's education, literacy, fluency in English, and any physical or psychological disability that may affect the ability to communicate a defense. When there is no pre-trial finding of competency to proceed and postconviction relief is sought, the court must determine if it can make a meaningful nunc pro tunc inquiry. If it cannot, or it finds that it can but the defendant was not competent, a new trial is required. State v. Klessig, 211 Wis. 2d 194
, 564 N.W.2d 716
A prior mental illness or a mental illness diagnosis made subsequent to the proceeding in question may create a reason to doubt competency, but neither categorically creates a reason to doubt competency. State v. Farrell, 226 Wis. 2d 447
, 595 N.W.2d 64
(Ct. App. 1999), 98-1179
This section codifies the two-part “understand-and-assist" due process test for determining competency set forth in Dusky
, 362 U.S. 402
(1960), that considers whether a defendant: 1) has sufficient present ability to consult with his or her lawyer with a reasonable degree of rational understanding; and 2) has a rational as well as factual understanding of the proceedings. Thus, a defendant is incompetent if he or she lacks the capacity to understand the nature and object of the proceedings, to consult with counsel, and to assist in the preparation of his or her defense. State v. Byrge, 2000 WI 101
, 237 Wis. 2d 197
, 614 N.W.2d 477
. See also State v. Smith, 2016 WI 23
, 367 Wis. 2d 483
, 878 N.W.2d 135
It is entirely reasonable that a competency examination designed to address a defendant's ability to understand the proceedings and assist counsel may also address issues of future dangerousness, which a court may reasonably consider when gauging the need for public protection in setting a sentence. State v. Slagoski, 2001 WI App 112
, 244 Wis. 2d 49
, 629 N.W.2d 50
A judge who carefully considered the transcribed record and her recollection of a previous proceeding involving the defendant did not impermissibly testify. There is no substantive difference between a judge's observation of a defendant's demeanor at the time of a competency hearing and the judge's observations of the defendant at an earlier proceeding. Both may be probative. State v. Meeks, 2002 WI App 65
, 251 Wis. 2d 361
, 643 N.W.2d 526
Counsel's testimony on opinions, perceptions, and impressions of a former client's competency violated the attorney-client privilege and should not have been revealed without the consent of the former client. State v. Meeks, 2003 WI 104
, 263 Wis. 2d 794
, 666 N.W.2d 859
Competency proceedings. 971.14(1g)(1g)
In this section, “department" means the department of health services.
The court shall proceed under this section whenever there is reason to doubt a defendant's competency to proceed.
If reason to doubt competency arises after the defendant has been bound over for trial after a preliminary examination, or after a finding of guilty has been rendered by the jury or made by the court, a probable cause determination shall not be required and the court shall proceed under sub. (2)
Except as provided in par. (b)
, the court shall not proceed under sub. (2)
until it has found that it is probable that the defendant committed the offense charged. The finding may be based upon the complaint or, if the defendant submits an affidavit alleging with particularity that the averments of the complaint are materially false, upon the complaint and the evidence presented at a hearing ordered by the court. The defendant may call and cross-examine witnesses at a hearing under this paragraph but the court shall limit the issues and witnesses to those required for determining probable cause. Upon a showing by the proponent of good cause under s. 807.13 (2) (c)
, testimony may be received into the record of the hearing by telephone or live audiovisual means. If the court finds that any charge lacks probable cause, it shall dismiss the charge without prejudice and release the defendant except as provided in s. 971.31 (6)
The court shall appoint one or more examiners having the specialized knowledge determined by the court to be appropriate to examine and report upon the condition of the defendant. If an inpatient examination is determined by the court to be necessary, the defendant may be committed to a suitable mental health facility for the examination period specified in par. (c)
, which shall be deemed days spent in custody under s. 973.155
. If the examination is to be conducted by the department, the court shall order the individual to the facility designated by the department.
Notwithstanding par. (a)
, if the court orders the defendant to be examined by the department or a department facility, the department shall determine where the examination will be conducted, who will conduct the examination and whether the examination will be conducted on an inpatient or outpatient basis. Any such outpatient examination shall be conducted in a jail or a locked unit of a facility. In any case under this paragraph in which the department determines that an inpatient examination is necessary, the 15-day period under par. (c)
begins upon the arrival of the defendant at the inpatient facility. If an outpatient examination is begun by or through the department, and the department later determines that an inpatient examination is necessary, the sheriff shall transport the defendant to the inpatient facility designated by the department, unless the defendant has been released on bail.
If the defendant has been released on bail, the court may not order an involuntary inpatient examination unless the defendant fails to cooperate in the examination or the examiner informs the court that inpatient observation is necessary for an adequate examination.
Inpatient examinations shall be completed and the report of examination filed within 15 days after the examination is ordered or as specified in par. (am)
, whichever is applicable, unless, for good cause, the facility or examiner appointed by the court cannot complete the examination within this period and requests an extension. In that case, the court may allow one 15-day extension of the examination period. Outpatient examinations shall be completed and the report of examination filed within 30 days after the examination is ordered.
If the court orders that the examination be conducted on an inpatient basis, the sheriff of the county in which the court is located shall transport any defendant not free on bail to the examining facility within a reasonable time after the examination is ordered and shall transport the defendant to the jail within a reasonable time after the sheriff and county department of community programs of the county in which the court is located receive notice from the examining facility that the examination has been completed.
The examiner shall personally observe and examine the defendant and shall have access to his or her past or present treatment records, as defined under s. 51.30 (1) (b)
A defendant ordered to undergo examination under this section may receive voluntary treatment appropriate to his or her medical needs. The defendant may refuse medication and treatment except in a situation where the medication or treatment is necessary to prevent physical harm to the defendant or others.
The defendant may be examined for competency purposes at any stage of the competency proceedings by physicians or other experts chosen by the defendant or by the district attorney, who shall be permitted reasonable access to the defendant for purposes of the examination.
The examiner shall submit to the court a written report which shall include all of the following:
A description of the nature of the examination and an identification of the persons interviewed, the specific records reviewed and any tests administered to the defendant.
The examiner's opinion regarding the defendant's present mental capacity to understand the proceedings and assist in his or her defense.
If the examiner reports that the defendant lacks competency, the examiner's opinion regarding the likelihood that the defendant, if provided treatment, may be restored to competency within the time period permitted under sub. (5) (a)
. The examiner shall provide an opinion as to whether the defendant's treatment should occur in an inpatient facility designated by the department, in a community-based treatment program under the supervision of the department, or in a jail or a locked unit of a facility that has entered into a voluntary agreement with the state to serve as a location for treatment.
If sufficient information is available to the examiner to reach an opinion, the examiner's opinion on whether the defendant needs medication or treatment and whether the defendant is not competent to refuse medication or treatment. The defendant is not competent to refuse medication or treatment if, because of mental illness, developmental disability, alcoholism or drug dependence, and after the advantages and disadvantages of and alternatives to accepting the particular medication or treatment have been explained to the defendant, one of the following is true:
The defendant is incapable of expressing an understanding of the advantages and disadvantages of accepting medication or treatment and the alternatives.
The defendant is substantially incapable of applying an understanding of the advantages, disadvantages and alternatives to his or her mental illness, developmental disability, alcoholism or drug dependence in order to make an informed choice as to whether to accept or refuse medication or treatment.
The facts and reasoning, in reasonable detail, upon which the findings and opinions under pars. (b)
The court shall cause copies of the report to be delivered forthwith to the district attorney and the defense counsel, or the defendant personally if not represented by counsel. Upon the request of the sheriff or jailer charged with care and control of the jail in which the defendant is being held pending or during a trial or sentencing proceeding, the court shall cause a copy of the report to be delivered to the sheriff or jailer. The sheriff or jailer may provide a copy of the report to the person who is responsible for maintaining medical records for inmates of the jail, or to a nurse licensed under ch. 441
, to a physician licensed under subch. II of ch. 448
, or to a physician assistant licensed under subch. IX of ch. 448
who is a health care provider for the defendant or who is responsible for providing health care services to inmates of the jail. The report shall not be otherwise disclosed prior to the hearing under this subsection.
NOTE: The cross-reference to subch. IX of ch. 448 was changed from subch. VIII of ch. 448 by the legislative reference bureau under s. 13.92 (1) (bm) 2. to reflect the renumbering under s. 13.92 (1) (bm) 2. of subch. VIII of ch. 448.
If the district attorney, the defendant and defense counsel waive their respective opportunities to present other evidence on the issue, the court shall promptly determine the defendant's competency and, if at issue, competency to refuse medication or treatment for the defendant's mental condition on the basis of the report filed under sub. (3)
. In the absence of these waivers, the court shall hold an evidentiary hearing on the issue. Upon a showing by the proponent of good cause under s. 807.13 (2) (c)
, testimony may be received into the record of the hearing by telephone or live audiovisual means. At the commencement of the hearing, the judge shall ask the defendant whether he or she claims to be competent or incompetent. If the defendant stands mute or claims to be incompetent, the defendant shall be found incompetent unless the state proves by the greater weight of the credible evidence that the defendant is competent. If the defendant claims to be competent, the defendant shall be found competent unless the state proves by evidence that is clear and convincing that the defendant is incompetent. If the defendant is found incompetent and if the state proves by evidence that is clear and convincing that the defendant is not competent to refuse medication or treatment, under the standard specified in sub. (3) (dm)
, the court shall make a determination without a jury and issue an order that the defendant is not competent to refuse medication or treatment for the defendant's mental condition and that whoever administers the medication or treatment to the defendant shall observe appropriate medical standards.
If the court determines that the defendant is competent, the criminal proceeding shall be resumed.
If the court determines that the defendant is not competent and not likely to become competent within the time period provided in sub. (5) (a)
, the proceedings shall be suspended and the defendant released, except as provided in sub. (6) (b)
If the court determines that the defendant is not competent but is likely to become competent within the period specified in this paragraph if provided with appropriate treatment, the court shall suspend the proceedings and commit the defendant to the custody of the department for treatment for a period not to exceed 12 months, or the maximum sentence specified for the most serious offense with which the defendant is charged, whichever is less. The department shall determine whether the defendant will receive treatment in an appropriate institution designated by the department, while under the supervision of the department in a community-based treatment program under contract with the department, or in a jail or a locked unit of a facility that has entered into a voluntary agreement with the state to serve as a location for treatment. The sheriff shall transport the defendant to the institution, program, jail, or facility, as determined by the department.
If, under subd. 1.
, the department commences services to a defendant in jail or in a locked unit, the department shall, as soon as possible, transfer the defendant to an institution or provide services to the defendant in a community-based treatment program consistent with this subsection.
Days spent in commitment under this paragraph are considered days spent in custody under s. 973.155
A defendant under the supervision of the department placed under this paragraph in a community-based treatment program is in the custody and control of the department, subject to any conditions set by the department. If the department believes that the defendant under supervision has violated a condition, or that permitting the defendant to remain in the community jeopardizes the safety of the defendant or another person, the department may designate an institution at which the treatment shall occur and may request that the court reinstate the proceedings, order the defendant transported by the sheriff to the designated institution, and suspend proceedings consistent with subd. 1.
If the defendant is not subject to a court order determining the defendant to be not competent to refuse medication or treatment for the defendant's mental condition and if the department determines that the defendant should be subject to such a court order, the department may file with the court, with notice to the counsel for the defendant, the defendant, and the district attorney, a motion for a hearing, under the standard specified in sub. (3) (dm)
, on whether the defendant 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 defendant needs medication or treatment and that the defendant is not competent to refuse medication or treatment, based on an examination of the defendant by a licensed physician. Within 10 days after a motion is filed under this paragraph, the court shall, under the procedures and standards specified in sub. (4) (b)
, determine the defendant's competency to refuse medication or treatment for the defendant's mental condition. At the request of the defendant, the defendant's 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.
The defendant shall be periodically reexamined by the department examiners. Written reports of examination shall be furnished to the court 3 months after commitment, 6 months after commitment, 9 months after commitment and within 30 days prior to the expiration of commitment. Each report shall indicate either that the defendant has become competent, that the defendant remains incompetent but that attainment of competency is likely within the remaining commitment period, or that the defendant has not made such progress that attainment of competency is likely within the remaining commitment period. Any report indicating such a lack of sufficient progress shall include the examiner's opinion regarding whether the defendant is mentally ill, alcoholic, drug dependent, developmentally disabled or infirm because of aging or other like incapacities.
Upon receiving a report under par. (b)
indicating the defendant has regained competency or is not competent and unlikely to become competent in the remaining commitment period, the court shall hold a hearing within 14 days of receipt of the report and the court shall proceed under sub. (4)
. If the court determines that the defendant has become competent, the defendant shall be discharged from commitment and the criminal proceeding shall be resumed. If the court determines that the defendant is making sufficient progress toward becoming competent, the commitment shall continue.
If the defendant is receiving medication the court may make appropriate orders for the continued administration of the medication in order to maintain the competence of the defendant for the duration of the proceedings. If a defendant who has been restored to competency thereafter again becomes incompetent, the maximum commitment period under par. (a)
shall be 18 months minus the days spent in previous commitments under this subsection, or 12 months, whichever is less.
If the court determines that it is unlikely that the defendant will become competent within the remaining commitment period, it shall discharge the defendant from the commitment and release him or her, except as provided in par. (b)
. The court may order the defendant to appear in court at specified intervals for redetermination of his or her competency to proceed.
When the court discharges a defendant from commitment under par. (a)
, it may order that the defendant be taken immediately into custody by a law enforcement official and promptly delivered to a facility specified in s. 51.15 (2) (d)
, an approved public treatment facility under s. 51.45 (2) (c)
, or an appropriate medical or protective placement facility. Thereafter, detention of the defendant shall be governed by s. 51.15
, 51.45 (11)
, or 55.135
, as appropriate. The district attorney or corporation counsel may prepare a statement meeting the requirements of s. 51.15 (4)
, 51.45 (13) (a)
, or 55.135
based on the allegations of the criminal complaint and the evidence in the case. This statement shall be given to the director of the facility to which the defendant is delivered and filed with the branch of circuit court assigned to exercise criminal jurisdiction in the county in which the criminal charges are pending, where it shall suffice, without corroboration by other petitioners, as a petition for commitment under s. 51.20
or 51.45 (13)
or a petition for protective placement under s. 55.075
. This section does not restrict the power of the branch of circuit court in which the petition is filed to transfer the matter to the branch of circuit court assigned to exercise jurisdiction under ch. 51
in the county. Days spent in commitment or protective placement pursuant to a petition under this paragraph shall not be deemed days spent in custody under s. 973.155
If a person is committed under s. 51.20
pursuant to a petition under par. (b)
, the county department under s. 51.42
to whose care and custody the person is committed shall notify the court which discharged the person under par. (a)
, the district attorney for the county in which that court is located and the person's attorney of record in the prior criminal proceeding at least 14 days prior to transferring or discharging the defendant from an inpatient treatment facility and at least 14 days prior to the expiration of the order of commitment or any subsequent consecutive order, unless the county department or the department of health services has applied for an extension.
Counsel who have received notice under par. (c)
or who otherwise obtain information that a defendant discharged under par. (a)
may have become competent may move the court to order that the defendant undergo a competency examination under sub. (2)
. If the court so orders, a report shall be filed under sub. (3)
and a hearing held under sub. (4)
. If the court determines that the defendant is competent, the criminal proceeding shall be resumed. If the court determines that the defendant is not competent, it shall release him or her but may impose such reasonable nonmonetary conditions as will protect the public and enable the court and district attorney to discover whether the person subsequently becomes competent.
Judicial Council Committee's Note, 1981:
Sub. (1) (a) does not require the court to honor every request for an examination. The intent of sub. (1) (a) is to avoid unnecessary examinations by clarifying the threshold for a competency inquiry in accordance with State v. McKnight, 65 Wis. 2d 583
(1974). “Reason to doubt" may be raised by a motion setting forth the grounds for belief that a defendant lacks competency, by the evidence presented in the proceedings or by the defendant's colloquies with the judge or courtroom demeanor. In some cases an evidentiary hearing may be appropriate to assist the court in deciding whether to order an examination under sub. (2). Even when neither party moves the court to order a competency inquiry, the court may be required by due process to so inquire where the evidence raises a sufficient doubt. Pate v. Robinson, 383 U.S. 375
, 387 (1966); Drope v. Missouri, 420 U.S. 162
The Wisconsin supreme court has held that a defendant may not be ordered to undergo a competency inquiry unless the court has found probable cause to believe he or she is guilty of the offense charged. State v. McCredden, 33 Wis. 2d 661
(1967). Where this requirement has not been satisfied through a preliminary examination or verdict or finding of guilt prior to the time the competency issue is raised, a special probable cause determination is required. Subsection (1) (b) allows that determination to be made from the allegations in the criminal complaint without an evidentiary hearing unless the defendant submits a particularized affidavit alleging that averments in the criminal complaint are materially false. Where a hearing is held, the issue is limited to probable cause and hearsay evidence may be admitted. See s. 911.01 (4) (c).
Sub. (2) (a) requires the court to appoint one or more qualified examiners to examine the defendant when there is reason to doubt his or her competency. Although the prior statute required the appointment of a physician, this section allows the court to appoint examiners without medical degrees, if their particular qualifications enable them to form expert opinions regarding the defendant's competency.
Sub. (2) (b), (c) and (d) is intended to limit the defendant's stay at the examining facility to that period necessary for examination purposes. In many cases, it is possible for an adequate examination to be made without institutional commitment, expediting the commencement of treatment of the incompetent defendant. Fosdal, The Contributions and Limitations of Psychiatric Testimony, 50 Wis. Bar Bulletin, No. 4, pp. 31-33 (April 1977).
Sub. (2) (e) clarifies the examiner's right of access to the defendant's past or present treatment records, otherwise confidential under s. 51.30.
Sub. (2) (f) clarifies that a defendant on examination status may receive voluntary treatment but, until committed under sub. (5), may not be involuntarily treated or medicated unless necessary for the safety of the defendant or others. See s. 51.61 (1) (f), (g), (h) and (i).
Sub. (2) (g), like prior s. 971.14 (7), permits examination of the defendant by an expert of his or her choosing. It also allows access to the defendant by examiners selected by the prosecution at any stage of the competency proceedings.
Sub. (3) requires the examiner to render an opinion regarding the probability of timely restoration to competency, to assist the court in determining whether an incompetent defendant should be committed for treatment. Incompetency commitments may not exceed the reasonable time necessary to determine whether there is a substantial probability that the defendant will attain competency in the foreseeable future: Jackson v. Indiana, 406 U.S. 715
, 738 (1972). The new statute also requires the report to include the facts and reasoning which underlie the examiner's clinical findings and opinion on competency.
Sub. (4) is based upon prior s. 971.14 (4). The revision emphasizes that the determination of competency is a judicial matter. State ex rel. Haskins v. Dodge County Court, 62 Wis. 2d 250
(1974). The standard of proof specified in State ex rel. Matalik v. Schubert, 57 Wis. 2d 315
(1973) has been changed to conform to the “clear and convincing evidence" standard of s. 51.20 (13) (e) and Addington v. Texas, 441 U.S. 418
(1979). [but see 1987 Wis. Act 85
Sub. (5) requires, in accordance with Jackson v. Indiana, 406 U.S. 715
(1972), that competency commitments be justified by the defendant's continued progress toward becoming competent within a reasonable time. The maximum commitment period is established at 18 months, in accordance with State ex rel. Haskins v. Dodge County Court, 62 Wis. 2d 250
(1974) and other data. If a defendant becomes competent while committed for treatment and later becomes incompetent, further commitment is permitted but in no event may the cumulated commitment periods exceed 24 months or the maximum sentence for the offense with which the defendant is charged, whichever is less. State ex rel. Deisinger v. Treffert, 85 Wis. 2d 257
, 270 N.W.2d 402
Sub. (6) clarifies the procedures for transition to civil commitment, alcoholism treatment or protective placement when the competency commitment has not been, or is not likely to be, successful in restoring the defendant to competency. The new statute requires the defense counsel, district attorney and criminal court to be notified when the defendant is discharged from civil commitment, in order that a redetermination of competency may be ordered at that stage. State ex rel. Porter v. Wolke, 80 Wis. 2d 197
, 297 N.W.2d 881
(1977). The procedures specified in sub. (6) are not intended to be the exclusive means of initiating civil commitment proceedings against such persons. See, e.g., In Matter of Haskins, 101 Wis. 2d 176
(Ct. App. 1980). [Bill 765-A]
Judicial Council Note, 1990: [Re amendment of (1) (c)] The McCredden hearing is substantially similar in purpose to the preliminary examination. The standard for admission of telephone testimony should be the same in either proceeding.
Effective date note
[Re amendment of (4) (b)] The standard for admission of telephone testimony at a competency hearing is the same as that for a preliminary examination. See s. 970.03 (13) and NOTE thereto. [Re Order eff. 1-1-91]
The legislature intended by the reference to s. 973.155 in sub. (5) (a) that good time credit be accorded persons committed as incompetent to stand trial. State v. Moore, 167 Wis. 2d 491
, 481 N.W.2d 633
A competency hearing may be waived by defense counsel without affirmative assent of the defendant. State v. Guck, 176 Wis. 2d 845
, 500 N.W.2d 910
The state bears the burden of proving competency when put at issue by the defendant. A defendant shall not be subject to a criminal trial when the state fails to prove competence by the greater weight of the credible evidence. A trial court's competency determination should be reversed only when clearly erroneous. State v. Garfoot, 207 Wis. 2d 214
, 558 N.W.2d 626
. See also State v. Byrge, 2000 WI 101
, 237 Wis. 2d 197
, 614 N.W.2d 477
; State v. Smith, 2016 WI 23
, 367 Wis. 2d 483
, 878 N.W.2d 135
A probationer has a right to a competency determination when, during a revocation proceeding, the administrative law judge has reason to doubt the probationer's competence. The determination shall be made by the circuit court in the county of sentencing, which shall adhere to this section and s. 971.13 to the extent practicable. State ex rel. Vanderbeke v. Endicott, 210 Wis. 2d 502
, 563 N.W.2d 883
The burden of proof under sub. (4) (b), when a defendant claims to be competent, does not violate equal protection guarantees. It balances the fundamental rights of not being tried when incompetent and of not having liberty denied because of incompetence. State v. Wanta, 224 Wis. 2d 679
, 592 N.W.2d 645
(Ct. App. 1999), 98-0318
When a competency examination was ordered, but never occurred, the time limits under sub. (2) did not begin to run and no violation occurred. State ex rel. Hager v. Marten, 226 Wis. 2d 687
, 594 N.W.2d 791
If the court determines under sub. (4) (d) that the defendant is not competent and not likely to become competent within 12 months, the proceedings shall be suspended and the defendant may be civilly committed under sub. (6) (a) as well as sub. (6) (b). When a prosecutor was subsequently notified that the defendant was not an appropriate candidate for civil commitment because he was not mentally retarded, the state was authorized to request for reevaluation under sub. (6) (d). State v. Carey, 2004 WI App 83
, 272 Wis. 2d 697
, 679 N.W.2d 910
The fact that a defendant was deemed competent to stand trial should not create a presumption that the defendant is competent at a later date when the same defendant pursues postconviction relief. State v. Daniel, 2015 WI 44
, 362 Wis. 2d 74
, 862 N.W.2d 867
There is no statute directly governing postconviction competency proceedings, but courts will look to this section for guidance. Once a defense attorney raises the issue of competency at a postconviction hearing, the burden is on the state to prove by a preponderance of the evidence that the defendant is competent to proceed. State v. Daniel, 2015 WI 44
, 362 Wis. 2d 74
, 862 N.W.2d 867
A proceeding to determine whether a defendant is competent is separate and distinct from the defendant's underlying criminal proceeding. Thus, an order that a defendant is not competent to proceed is a final order issued in a special proceeding and is appealable as of right pursuant to s. 808.03 (1). State v. Scott, 2018 WI 74
, 382 Wis. 2d 476
, 914 N.W.2d 141
Involuntary medication orders are subject to an automatic stay pending appeal. On a motion to lift an automatic stay, the state must: 1) make a strong showing that it is likely to succeed on the merits of the appeal; 2) show that the defendant will not suffer irreparable harm if the stay is lifted; 3) show that no substantial harm will come to other interested parties if the stay is lifted; and 4) show that lifting the stay will do no harm to the public interest. State v. Scott, 2018 WI 74
, 382 Wis. 2d 476
, 914 N.W.2d 141
Under Sell, 539 U.S. 166
(2003), a court may order involuntary medication for the purpose of competency to stand trial only if four factors are met: 1) important governmental interests are at stake; 2) involuntary medication will significantly further the government's interest in prosecuting the offense; 3) involuntary medication is necessary to further those interests; and 4) administration of the drugs is medically appropriate. Sub. (4) (b) does not require the circuit court to determine whether the Sell
factors have been met. Rather, it requires circuit courts to order involuntary medication for a defendant who is found incompetent to refuse medication under sub. (3) (dm). The mere inability of a defendant to express an understanding of medication or to make an informed choice about it is constitutionally insufficient to override a defendant's significant liberty interest in avoiding the unwanted administration of antipsychotic drugs. To the extent that subs. (3) (dm) and (4) (b) require circuit courts to order involuntary medication when the Sell
standard has not been met, the statute is unconstitutional. State v. Fitzgerald, 2019 WI 69
, 387 Wis. 2d 384
, 929 N.W.2d 165
Because the state's significant pretrial interests in bringing a defendant who meets each one of the factors set out in Sell
, 539 U.S. 166
(2003), to competency for trial and providing timely justice to victims outweigh upholding a defendant's liberty interest in refusing involuntary medication at the pretrial stage of criminal proceedings, the Scott
, 2018 WI 74
, automatic stay of involuntary medication orders pending appeal does not apply to pretrial proceedings. State v. Green, 2022 WI 30
, 401 Wis. 2d 542
, 973 N.W.2d 770
The plain meaning of the 12-month treatment limit in sub. (5) (a) 1. does not permit tolling of its limit on confinement for pretrial treatment to achieve competency. State v. Green, 2022 WI 30
, 401 Wis. 2d 542
, 973 N.W.2d 770
Wisconsin's new competency to stand trial statute. Fosdal & Fullin. WBB Oct. 1982.