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Ch. 980 petition is timely as long as it’s filed before the person’s release or discharge from sentence

State v. Hershel R. Stanley, 2014 WI App 89; case activity

Even if DOC was required to release Stanley from prison on his presumptive mandatory release date instead of holding him to his maximum discharge date, the ch. 980 petition filed against him before his discharge date was timely because § 980.02(1m) permits filing a ch. 980 petition before a person is released or discharged from his sentence.

Under § 302.11(1g), certain prisoners serving pre-Truth-in-Sentencing prison terms have a presumptive mandatory release (PMR) date, calculated as two-thirds of the sentence. Prisoners with a PMR date are entitled to a review hearing before the PRM date, § 302.11(1g)(b); at that hearing the parole commission determines whether to grant parole or keep the prisoner confined.

DOC miscalculated Stanley’s PMR date, and by the time they realized the mistake and held the hearing his PMR date had passed. (¶¶7-10). He was denied PMR and held to his maximum discharge date—that is, the end of his sentence. (¶10). Shortly before that date the state filed a ch. 980 petition. (¶9-10).

Stanley claimed the petition was untimely because under § 302.11(1g)(b) the failure to hold a timely PMR review hearing meant DOC was required to release him on the PMR date, even though they didn’t; thus, the ch. 980 petition was not timely filed because it was filed after his PMR date, which was his proper release date. (¶¶12-13). The circuit court agreed, but the court of appeals holds the plain language of ch. 980 makes a petition timely as long as it is filed before the persons release or discharge date:

¶15    Wisconsin Stat. § 980.02(1m) provides: “A petition filed under this section shall be filed before the person is released or discharged.” (Emphasis added.) The legislature uses two distinct words in this subsection: “released” and “discharged,” separated by “or.” “Where the legislature uses similar but different words in a statute, particularly the same section, we presume the legislature intended that the words have different meanings.” American Transmission Co., LLC v. Dane Cnty., 2009 WI App 126, ¶14 n.7, 321 Wis. 2d 138, 772 N.W.2d 731.


¶22   Based on the usage of the words “released” and “discharged” in the case law and in closely related statutes and regulations, we conclude that the words have the following common and accepted legal meanings in the context of a criminal sentence: “released” means to free a person from confinement in prison, and “discharged” means to free a person from DOC custody status upon completion of the criminal sentence. A person serving a prison sentence is “confined” until he or she is “released” from prison, and the person remains in DOC “custody status” until he or she is “discharged” upon completion of the criminal sentence. Hence, the use of the word “discharge” in a person’s maximum “discharge” date corresponds to its use in Wis. Stat. § 980.02(1m), and in both usages the meaning is the completion of the criminal sentence. See [State v.] Thomas, [2000 WI App 162,] 238 Wis. 2d 216, ¶6 n.2[, 617 N.W.2d 230] (describing the “maximum discharge date” as “the date on which the sentence would … [be] completed”).

¶23    Applying the common and accepted legal meanings of “released” and “discharged” as those terms are used in Wis. Stat. § 980.02(1m), we conclude that the statute requires that the Wis. Stat. ch. 980 petition be filed either before the person is freed from confinement in prison or before the person’s entire sentence is completed.

Because the petition against Stanley was filed before his discharge date, it was timely. (¶24).

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