Chapter 971

971.17(4m)(d) (d) Upon request, the department of health services shall assist district attorneys in obtaining information regarding persons specified in par. (b) 1.

971.17(5) (5) Petition for termination. A person on conditional release, or the department of health services on his or her behalf, may petition the committing court to terminate the order of commitment. If the person files a timely petition without counsel, the court shall serve a copy of the petition on the district attorney and, subject to sub. (7) (b), refer the matter to the state public defender for determination of indigency 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. The petition shall be determined as promptly as practicable by the court without a jury. The court shall terminate the order of commitment unless it finds by clear and convincing evidence that further supervision is necessary to prevent a significant risk of bodily harm to the person or to others or of serious property damage. In making this determination, the court may consider, without limitation because of enumeration, the nature and circumstances of the crime, the person’s mental history and current mental condition, the person’s behavior while on conditional release, and plans for the person’s living arrangements, support, treatment and other required services after termination of the commitment order. A petition under this subsection may not be filed unless at least 6 months have elapsed since the person was last placed on conditional release or since the most recent petition under this subsection was denied.

971.17(6) (6) Expiration of commitment order.

971.17(6)(a) (a) At least 60 days prior to the expiration of a commitment order under sub. (1), the department of health services shall notify all of the following:

971.17(6)(a)1. 1. The court that committed the person.

971.17(6)(a)2. 2. The district attorney of the county in which the commitment order was entered.

971.17(6)(a)3. 3. The appropriate county department under s. 51.42 or 51.437.

971.17(6)(b) (b) Upon the expiration of a commitment order under sub. (1), the court shall discharge the person, subject to the right of the department of health services or the appropriate county department under s. 51.42 or 51.437 to proceed against the person under ch. 51 or 55. If none of those departments proceeds against the person under ch. 51 or 55, the court may order the proceeding.

971.17(6m) (6m) Notice about termination or discharge.

971.17(6m)(a) (a) In this subsection:

971.17(6m)(a)1. 1. “Crime” has the meaning designated in s. 949.01 (1).

971.17(6m)(a)2. 2. “Member of the family” means spouse, domestic partner under ch. 770, 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 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)(b)2. 2. Notify the department of corrections.

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 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 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) (7) Hearings and rights.

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)(b)2. 2. Remain silent.

971.17(7)(b)3. 3. Present and cross-examine witnesses.

971.17(7)(b)4. 4. Have the hearing recorded by a court reporter.

971.17(7)(c) (c) If the person wishes to be examined by a physician or a psychologist 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(7m) (7m) Motion for postdisposition relief and appeal.

971.17(7m)(a) (a) A motion for postdisposition relief from a final order or judgment by a person subject to this section shall be made in the time and manner provided in ss. 809.30 to 809.32. An appeal by a person subject to this section from a final order or judgment under this section or from an order denying a motion for postdisposition relief shall be taken in the time and manner provided in ss. 808.04 (3) and 809.30 to 809.32. The person shall file a motion for postdisposition relief in the circuit court before a notice of appeal is filed unless the grounds for seeking relief are sufficiency of the evidence or issues previously raised.

971.17(7m)(b) (b) An appeal by the state from a final judgment or order under this section may be taken to the court of appeals within the time specified in s. 808.04 (4) and in the manner provided for civil appeals under chs. 808 and 809.

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; 2007 a. 20 ss. 3875, 9121 (6) (a); 2007 a. 116; 2009 a. 26, 28, 137, 261; 2011 a. 258; 2013 a. 20, 362; 2017 a. 131, 140; 2021 a. 131; 2023 a. 224.

971.17 Cross-reference Cross-reference: See also ch. DHS 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 (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 the individual 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), 93-0219.

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 this section 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 a commitment under this section. 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 A circuit court’s order for commitment under sub. (3) (a) should be reviewed under a sufficiency of the evidence standard. State v. Wilinski, 2008 WI App 170, 314 Wis. 2d 643, 762 N.W.2d 399, 08-0404.

971.17 Annotation Sub. (3) (c) facially satisfies substantive due process protections. A finding of dangerousness is not required to order the involuntary medication of an individual committed under this section. Findings of dangerousness based on the original commitment under sub. (3) and on the denial of a petition for conditional release under sub. (4) (d) continue to be present until they are changed or upset. With such a basis present, a court evaluating a motion for an involuntary medication order need not make separate or independent findings of dangerousness. State v. Wood, 2010 WI 17, 323 Wis. 2d 321, 780 N.W.2d 63, 07-2767.

971.17 Annotation Sub. (3) (c) is facially valid on procedural due process grounds for two primary reasons. First, the statute requires that the court grant a conditional release hearing, which the committed person may request every six months. Although that review is not specific to the medication order, it must necessarily include a review of the medication order. Second, language in this section outside sub. (3) (c) implicitly requires periodic review. State v. Wood, 2010 WI 17, 323 Wis. 2d 321, 780 N.W.2d 63, 07-2767.

971.17 Annotation “Property damage” in sub. (3) (a) includes not only physical harm or destruction, but also loss of goods or money. State v. Brown, 2010 WI App 113, 328 Wis. 2d 241, 789 N.W.2d 102, 09-1822.

971.17 Annotation The proper standard of review of the trial court’s dangerousness finding under former sub. (2), 1987 stats., as applied under sub. (8) is the sufficiency of the evidence test. Trial courts are to determine dangerousness by considering the statutory factors of former sub. (4) (d), 2009 stats., and balancing the interests at stake. State v. Randall, 2011 WI App 102, 336 Wis. 2d 399, 802 N.W.2d 194, 09-2779.

971.17 Annotation Under the broad terms of s. 51.30 (7), the confidentiality requirements created under s. 51.30 generally apply to “treatment records” in criminal not guilty by reason of insanity (NGI) cases. All conditional release plans in NGI cases are, by statutory definition, treatment records. They are created in the course of providing services to individuals for mental illness, and thus should be deemed confidential. An order of placement in an NGI case is not a “treatment record.” La Crosse Tribune v. Circuit Court, 2012 WI App 42, 340 Wis. 2d 663, 814 N.W.2d 867, 10-3120.

971.17 Annotation The 72-hour time limit in sub. (3) (e) for the Department of Health Services to submit its statement of probable cause and petition to revoke conditional release is mandatory, not directory. State v. Olson, 2019 WI App 61, 389 Wis. 2d 257, 936 N.W.2d 178, 18-1075.

971.17 Annotation The plain meaning of sub. (7m) requires a postdisposition motion when an issue has not been previously raised, and the same provision directs that postdisposition motions “shall” be made in the time and manner required by s. 809.30. State v. Klapps, 2021 WI App 5, 395 Wis. 2d 743, 954 N.W.2d 38, 19-1753.

971.17 Annotation This section provides circuit courts the statutory authority to impose consecutive periods of not guilty by reason of mental disease or defect commitments. State v. Yakich, 2022 WI 8, 400 Wis. 2d 549, 970 N.W.2d 12, 19-1832.

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 (1996). But see State v. Wood, 2010 WI 17, 323 Wis. 2d 321, 780 N.W.2d 63, 07-2767.

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.

971.19 971.19 Place of trial.

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)(a) (a) Any county in which he or she has resided while subject to s. 301.45.

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. 23.33 (2h), 23.335 (5m), 30.547, or 350.12 (3i) 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 all-terrain vehicle, utility terrain vehicle, off-highway motorcycle, boat, or snowmobile 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(12) (12) Except as provided in s. 971.223, in an action for a violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19, or for a violation of any other law arising from or in relation to the official functions of the subject of the investigation or any matter that involves elections, ethics, or lobbying regulation under chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19 a defendant who is a resident of this state shall be tried in circuit court for the county where the defendant resides. For purposes of this subsection, a person other than a natural person resides within a county if the person’s principal place of operation is located within that county.

971.19 History History: 1987 a. 332; 1993 a. 98, 486; 1995 a. 440; 1997 a. 198; 1999 a. 89; 2003 a. 36; 2007 a. 1; 2009 a. 180; 2015 a. 89, 170; 2017 a. 365.

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 two counties under sub. (2). Blenski v. State, 73 Wis. 2d 685, 245 N.W.2d 906 (1976).

971.19 Annotation A specific instruction on venue needs to be given only when venue is contested. State v. Swinson, 2003 WI App 45, 261 Wis. 2d 633, 660 N.W.2d 12, 02-0395.

971.19 Annotation If any element of the crime charged occurred in a given county, then that county can be the place of trial. Because the crime of receiving stolen property requires more than two acts, and one of the acts is that the property must be stolen, venue is properly established in the county where that act occurred. State v. Lippold, 2008 WI App 130, 313 Wis. 2d 699, 757 N.W.2d 825, 07-1773.

971.19 Annotation The phrase “for a violation of any other law arising from or in relation to” in sub. (12) modifies both “the official functions of the subject of the investigation” and “any matter that involves elections, ethics, or lobbying regulation.” Accordingly, sub. (12) establishes venue in the county where the defendant resides for an alleged violation of any other law arising from or in relation to any matter that involves elections, ethics, or lobbying regulation. State v. Jensen, 2010 WI 38, 324 Wis. 2d 586, 782 N.W.2d 415, 08-0552.

971.19 Annotation In sub. (12), “regulation” modifies only “lobbying.” Because regulation modifies only the word lobbying, sub. (12) is not limited to violations of administrative regulations; rather, it encompasses violations of any matter that involves elections, ethics, and lobbying regulation. State v. Jensen, 2010 WI 38, 324 Wis. 2d 586, 782 N.W.2d 415, 08-0552.

971.19 Annotation Sub. (2) provides that, when two or more acts are requisite to the commission of any offense, the trial may be in any county in which any of the acts occurs. Venue is therefore appropriate in any county in which at least one of the alleged acts occurs when the charge is based on a continuous offense. State v. Elverman, 2015 WI App 91, 366 Wis. 2d 169, 873 N.W.2d 528, 14-0354.

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.