State v. Shawn Virlee, 2003 WI App 4, PFR filed 1/3/03
For Virlee: Jack E. Schairer
Issue: Whether ch. 980 violates due process and/or equal protection because it doesn’t allow for pretrial release.
¶14. We decline to address Virlee’s due process and equal protection arguments because he fails to establish, and we do not see, how the statute’s lack of a provision for pretrial release affects the trial court’s judgment. Virlee’s appeal challenges his commitment. He does not argue that his inability to be released pending his trial somehow rendered the jury’s verdict or the court’s order of commitment improper. Even if we were to conclude Virlee had a right to be released before trial, the error would be harmless because it has no bearing on whether he is sexually violent. See Whitty v. State, 34 Wis. 2d 278, 289, 149 N.W.2d 557 (1967) (violation of right to reasonable bail subject to harmless error test because it does not affect issue of defendant’s guilt or innocence). Further, although it is unclear whether Virlee challenges the removal of the least restrictive placement language from ch. 980 in the context of pretrial release or post-trial commitment, our supreme court has already determined the legislature’s removal of this provision does not violate due process. See State v. Rachel, 2002 WI 81, 66, 254 Wis. 2d 215, 647 N.W.2d 762.