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SVP – Pretrial – Petition — Timeliness — Calculation of Release Date on Concurrent Sentences

State v. Thomas Treadway, 2002 WI App 195
For Treadway: Lynn E. Hackbarth

Issue: Whether the state’s petition was timely, where the respondent had already completed his sentence on the qualifying conviction but was serving concurrent sentences with the controlling sentence a non-qualifying conviction.

Holding: State v. Keith, 216 Wis. 2d 61, 573 N.W.2d 888 (Ct. App. 1997) (petition timely filed where respondent serving consecutive sentences) extended to concurrent sentences:

¶17. … (I)f the State were required to file its Wis. Stat. ch. 980 petition within ninety days of the conclusion of a sentence for a sexually violent offense, despite the fact that the subject of the petition still could be serving additional time in an unbroken string of sentences, the petition could not accurately address the defendant’s circumstances, mental condition, and treatment needs at the time of scheduled release. Discharge or release could be many months or, as in this case, many years away.
¶18. Moreover, in some cases, concurrent sentences, or concurrent and consecutive sentences, interlace, and some are further complicated by sentences after revocation. In such circumstances, the State easily could miscalculate the discharge or release date for the last sexually violent offense among the offenses not deemed sexually violent and miss the opportunity to seek Wis. Stat. ch. 980 commitment. Under such circumstances, both of ch. 980’s “twin objectives”-the protection of the public and the treatment needs of the offender-would be disserved by precluding a court’s consideration of commitment. See Keith, 216 Wis. 2d at 72; see also Grobarchik v. State, 102 Wis. 2d 461, 468, 307 N.W.2d 170 (1981) (“As employed in the language of the criminal law, a sentence of imprisonment is a term of incarceration or supervision on parole which continues until the defendant is finally discharged.”). Thus, we conclude that because the State’s petition was filed within ninety days of Treadway’s release from a sentence for an offense that had not been deemed a sexually violent offense, which was being served concurrently with a shorter sentence imposed for a sexually violent offense, the petition was timely.

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