State v. Keith M. Carey , 2004 WI App 83, PFR filed 4/22/04
For Carey: Paul LaZotte, SPD, Madison Appellate
¶10. Pursuant to Wis. Stat. § 971.14(5)(a), if the court finds that a defendant is not competent, but is likely to become competent, it may commit the defendant to the custody of the department of health and family services for a period of time not to exceed twelve months or the maximum sentence for the most serious offense with which the defendant is charged, whichever is less. In this case, however, the court determined that Carey was incompetent and not likely to become competent within the allotted time. Therefore, Carey could not be committed pursuant to subsec. (5)(a). … Thus, when a circuit court discharges a defendant from a commitment under § 971.14(6)(a), the circuit court, pursuant to § 971.14(6)(b), may immediately order that the defendant be taken into custody and held pursuant to Wis. Stat. ch. 51. Thereafter, further proceedings under ch. 51 or Wis. Stat. ch. 55 may occur. Here, after the court discharged Carey, the State invoked § 971.14(6)(b) by seeking and accomplishing Carey’s detention under ch. 51, and later, under ch. 55….
¶12. … [T]he State, once it learns that a defendant discharged under para. (a) may become competent, may move the court to order the defendant to undergo a reevaluation of his or her competency to stand trial. This is precisely what happened here. The second sentence of para. (a) grants the court the power to order the reevaluation of the competency of the defendant when the defendant is released from custody. Accordingly, in this case, the circuit court had the authority by virtue of subsec. (6)(d) and the second sentence in subsec. (6)(a) to order the competency examination.
¶14. While Carey is technically right that the circuit court committed him under Wis. Stat. § 971.14(6)(b), it is subsec. (6)(a) that specifically envisions and authorizes the court to order a civil commitment under subsec. (6)(b). Furthermore, although Billy Jo W. v. Metro, 182 Wis. 2d 616, 645, 514 N.W.2d 707 (1994), is not directly on point, our supreme court’s comments in that case concerning the purposes of § 971.14 are instructive. There, our supreme court recognized that the legislature had interwoven the provisions of Wis. Stat. chs. 51 and 971 to accommodate the constitutional protections against perpetual, unjustified confinement on the one hand and the interests of the public in prosecuting criminal defendants on the other hand. Billy Jo W., 182 Wis. 2d at 645. Thus, in furtherance of the latter, § 971.14(6) provides that the criminal court retains jurisdiction over the defendant, who can be prosecuted once he or she regains competency. Billy Jo W., 182 Wis. 2d at 644-45 (citing State ex rel. Porter v. Wolke, 80 Wis. 2d 197, 204, 257 N.W.2d 881 (1977)). This both ensures that a competent defendant does not escape the consequences of his or her criminal behavior and protects the public from a potentially dangerous competent individual.
¶15. … We, therefore, hold that that the circuit court had the authority under Wis. Stat. § 971.14(6) to order a redetermination of Carey’s competency to stand trial and we remand the matter for further proceedings.