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Competency – Time Limits for Exam, In- vs. Out-Patient

State ex rel. Michael J. Hager v. Marten, 226 Wis.2d 687, 594 N.W.2d 791 (1999), affirming unpublished decision
For Hager, Gerhardt F. Getzin, SPD, Wausau

Issue: Whether the § 971.14(2) time limit, requiring completion of competency exam w/in 15 days “of the arrival of the defendant at the inpatient facility,” was violated.

Holding: Resolution turns on whether the court specifically ordered an inpatient exam. No written order was entered, helping to create an unfortunate ambiguity. The trial court merely ordered an exam “at Winnebago.” This did not, in and of itself, specify whether the exam would be inpatient or outpatient. The court has the authority to order an inpatient exam, § 971.14 (2)(a), in which case the 15-day time limit begins running when the exam is ordered. Otherwise, if an exam is merely ordered, then the department has discretion under § 971.14(2)(am) to determine whether it will be in- or out-patient. And, under this provision, then the time limit for an inpatient exam is triggered by arrival at the facility. Hager wasn’t transported to the facility, instead languishing for five months in jail. But given the lack of precision in the judge’s order, the statutory 15-day time limit didn’t begin to run because he wasn’t sent to Winnebago and the statute therefore wasn’t violated. Hager could have, the court intimates, asserted a statutory speedy trial violation, § 971.10, but failed to do so. The court also suggests that a written order would have clarified the judge’s intent with respect to whether he was ordering an inpatient exam (immediately triggering the other time limit). The concurrence laments the lack of written competency order, and concludes that a § 971.14(2)(a) order for inpatient exam must be in writing to trigger the relevant limitation period. “Michael Hager fell through the cracks” largely because of this failure, given that a written order provides “notice of what action must be taken.”

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