Section 980.02. Sexually violent person petition; contents; filing.

 

(1)  A petition alleging that a person is a sexually violent person may be filed by one of the following:

(a) The department of justice at the request of the agency with jurisdiction over the person.

(b) If the department of justice does not file a petition under par. (a) , the district attorney for one of the following:

1. The county in which the person was convicted of a sexually violent offense, adjudicated delinquent for a sexually violent offense or found not guilty of or not responsible for a sexually violent offense by reason of insanity or mental disease, defect or illness.

2. The county in which the person will reside or be placed upon his or her discharge from a sentence, release on parole or extended supervision, or release from imprisonment, from a juvenile correctional facility, as defined in s. 938.02 (10p) , from a residential care center for children and youth, as defined in s. 938.02 (15g) , or from a commitment order.

3. The county in which the person is in custody under a sentence, a placement to a juvenile correctional facility, as defined in s. 938.02 (10p) , or a secured residential care center for children and youth, as defined in s. 938.02 (15g) , or a commitment order.

(1m)  A petition filed under this section shall be filed before the person is released or discharged.

(2)  A petition filed under this section shall allege that all of the following apply to the person alleged to be a sexually violent person:

(a) The person satisfies any of the following criteria:

1. The person has been convicted of a sexually violent offense.

2. The person has been found delinquent for a sexually violent offense.

3. The person has been found not guilty of a sexually violent offense by reason of mental disease or defect.

(b) The person has a mental disorder.

(c) The person is dangerous to others because the person's mental disorder makes it likely that he or she will engage in acts of sexual violence.

(3)  A petition filed under this section shall state with particularity essential facts to establish probable cause to believe the person is a sexually violent person. If the petition alleges that a sexually violent offense or act that is a basis for the allegation under sub. (2) (a) was an act that was sexually motivated as provided under s. 980.01 (6) (b) , the petition shall state the grounds on which the offense or act is alleged to be sexually motivated.

(4)  A petition under this section shall be filed in one of the following:

(a) The circuit court for the county in which the person was convicted of a sexually violent offense, adjudicated delinquent for a sexually violent offense or found not guilty of a sexually violent offense by reason of mental disease or defect.

(am) The circuit court for the county in which the person will reside or be placed upon his or her discharge from a sentence, release on parole or extended supervision, or release from imprisonment, from a juvenile correctional facility, as defined in s. 938.02 (10p) , from a secured residential care center for children and youth, as defined in s. 938.02 (15g) , or from a commitment order.

(b) The circuit court for the county in which the person is in custody under a sentence, a placement to a juvenile correctional facility, as defined in s. 938.02 (10p) , a secured residential care center for children and youth, as defined in s. 938.02 (15g) , or a commitment order.

(5)  Notwithstanding sub. (4) , if the department of justice decides to file a petition under sub. (1) (a) , it may file the petition in the circuit court for Dane County.

(6)  A court assigned to exercise jurisdiction under chs. 48 and 938 does not have jurisdiction over a petition filed under this section alleging that a person who was adjudicated delinquent as a child is a sexually violent person.

1993 a. 479 ; 1995 a. 77 , 225 ; 1997 a. 27 , 205 , 283 ; 1999 a. 9 ; 2003 a. 187 ; 2005 a. 344 , 434 ; 2007 a. 96 . A ch. 980 commitment is not an extension of a commitment under ch. 975, and s. 975.12 does not limit the state's ability to seek a separate commitment under ch. 980 of a person originally committed under ch. 975. State v. Post, 197 Wis. 2d 279 , 541 N.W.2d 115 (1995), 94-2356 . To the extent that s. 938.35 (1) prohibits the admission of delinquency adjudications in ch. 980 proceedings, it is repealed by implication. State v. Matthew A.B. 231 Wis. 2d 688 , 605 N.W.2d 598 (Ct. App. 1999), 98-0229 . In a trial on a petition filed under sub. (2), the state has the burden to prove beyond a reasonable doubt that the petition was filed within 90 days of the subject's release or discharge based on a sexually violent offense. State v. Thiel, 2000 WI 67 , 235 Wis. 2d 823 , 612 N.W.2d 94 , 99-0316 . See also State v. Thiel, 2001 WI App 52 , 241 Wis. 2d 439 , 625 N.W.2d 321 , 99-0316 . While a commitment under ch. 980 is civil, a court does not lose subject matter jurisdiction because a petition is filed under a criminal case number. State v. Pharm, 2000 WI App 167 , 238 Wis. 2d 97 , 617 N.W.2d 163 , 98-1542 . Chapter 980 provides its own procedures for commencing actions, and, as such, chs. 801 and 802 are inapplicable to the commencement of ch. 980 actions. State v. Wolfe, 2001 WI App 136 , 246 Wis. 2d 233 , 631 N.W.2d 240 , 99-2145 . When a ch. 980 petition was filed within 90 days of release from a sentence for an offense that was not a sexually violent offense, which was being served concurrently with a shorter sentence imposed for a sexually violent offense, the petition was timely. State v. Treadway, 2002 WI App 195 , 257 Wis. 2d. 467, 651 N.W.2d 334 , 00-2957 . The state was not precluded from seeking a ch. 980 commitment following the defendant's parole revocation, even though the state had failed to prove that the defendant was a sexually violent person in need of commitment in a previous ch. 980 trial that took place prior to the defendant's parole. State v. Parrish, 2002 WI App 263 , 258 Wis. 2d 521 , 654 N.W.2d 273 , 00-2524 . The circuit court had jurisdiction to conduct ch. 980 proceedings involving an enrolled tribal member who committed the underlying sexual offense on an Indian reservation. State v. Burgess, 2003 WI 71 , 262 Wis. 2d 354 , 665 N.W.2d 124 , 00-3074 . See also Burgess v. Watters, 467 F.3d 676 (2007). Under sub. (1), a request from the agency with jurisdiction and a subsequent decision by the department of justice not to file are prerequisites to a district attorney's authority to file a ch. 980 petition. State v. Byers, 2003 WI 86 , 263 Wis. 2d 113 , 665 N.W.2d 729 . The threshold decision of whether a petition should be filed remains in the hands of the agency with jurisdiction and outside of the political process. A district attorney may contact the agency to seek clarification of the ch. 980 evaluator's determination, to correct factual mistakes, to provide new or additional information, or to ask for a second opinion with a different evaluator. However, the agency can independently exercise its judgment and choose to ignore the district attorney's efforts or to decline the district attorney's request for a second evaluation if the agency determines that these efforts and requests are improperly politically motivated. State v. Bell, 2006 WI App 30 , 289 Wis. 2d 275 , 710 N.W.2d 525 , 05-0890 . That the ch. 980 definition of "dangerousness" lacks a temporal context limited to imminent danger. does not render the statute unconstitutional. State v. Olson, 2006 WI App 32 , 290 Wis. 2d 202 , 712 N.W.2d 61 , 04-0412 Chapter 980 does not require the dismissal of a pending commitment petition when the individual subject to the petition is incarcerated because of the revocation of either parole or extended supervision. Section 980.06 requires the circuit court to order the person to be committed to the custody of DHS for control, care, and treatment, but ch. 980 does not specify when that commitment must commence. While this section sets forth the requirements for a proper commitment order, neither this section nor any other section of ch. 980 contains language stating when the individual requirements of that order must be satisfied. State v. Gilbert, 2012 WI 72 , 342 Wis. 2d 82 , 816 N.W.2d 215 , 10-0594 . If a ch. 980 petition satisfies the statutory requirements in this section at the time it is filed, it will not be invalidated if the conviction recited in the petition is later reversed. Subsequent facts that impact the status of the allegations in the petition may be relevant at trial under s. 980.05, but they will not invalidate a petition that met the requirements of this section at the time of filing. State v. Spaeth, 2014 WI 71 , 355 Wis. 2d 761 , 850 N.W.2d 93 , 12-2170 . Applying the common and accepted legal meanings of "released" and "discharged" as those terms are used in sub. (1m), a ch. 980 petition must be filed either before the person is freed from confinement in prison or before the person's entire sentence is completed. Even assuming that the department of corrections was required to release the defendant on his presumptive mandatory release (PMR) date, a ch. 980 filed petition after the PMR date but while the defendant remained incarcerated was timely filed based on the language of sub. (1m), which permits filing a ch. 980 petition before a person is "discharged." State v. Stanley, 2014 WI App 89 , 356 Wis. 2d 268 , 853 N.W.2d 600 , 13-2477 .