Chapter 971

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.

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 History History: 1981 c. 137; 1987 a. 27; 1997 a. 250; 2001 a. 61.

971.20 Note NOTE: See 1979 stats. for notes and annotations relating to this section 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 Note 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 Note 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 Note 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 Note 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 Note Sub. (6) clarifies that all defendants in a single action must join in a substitution request.

971.20 Note 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 Note 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 Note 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 Note Sub. (10) is prior sub. (5).

971.20 Note Sub. (11) is prior sub. (6). [Bill 163-S]