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SCOW to review statutory period for treatment to competency

State v. Joseph G. Green, 2020AP298-CR, petition for review granted 6/16/21, case activity (including briefs)

Issue (from the State’s petition):

Does a circuit court have authority to order tolling of the 12-month statutory time limit for bringing an incompetent criminal defendant to trial competency?

When a circuit court declares a defendant incompetent to proceed with his criminal case and orders involuntary treatment or medication to restore competency, DHS has up to 12 months to restore competency.  See Wis. Stat. §971.14(5)(a)(1).  Meanwhile, the defendant has a the right to appeal the involuntary medication order and the right to an automatic stay of that order pending his appeal. State v. Scott, 2018 WI 74, 382 Wis. 2d 476, 914 N.W.2d 141.

The State contends that once the defendant invokes his right to appeal, the statutory time for restoring the defendant’s competency must be tolled. Otherwise it will be chewed up by the amount of time it takes to brief the appeal and get a decision from the court of appeals.

Here’s one problem with that argument. The Wisconsin legislature enacted  §971.14(5) long before SCOW decided Scott. The legislature did not give circuit courts the authority to toll the statute’s time period, and courts cannot read words (or in this case, an entire provision) into a statute to give it a certain meaning. State v. Fitzgerald, 2019 WI 69, 387 Wis. 2d 384, ¶30, 929 N.W.2d 165 (2019). A matter not covered by a statute is to be treated as not covered. Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 93 (2012).

Another problem with the argument is that there is a constitutional limit on the amount of time a defendant may be committed based on his incompetency for trial. Jackson v. Indiana, 406 U.S. 715 (1972). Per the Wisconsin legislature, that constitutional limit is 1 year.

Will a majority of the SCOW defy Scalia and read a tolling provision into the statute? It certainly does not need to. The legislature could amend §971.14–something it should have when Fitzgerald declared parts of the statute unconstitutional. And SCOW itself could adopt a special rule for expediting appeals from involuntary med orders just as it has for appeals from TPR decisions, abortion appeals, and Foxconn appeals. Indeed, the Judicial Council is already working on a new rule.


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