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SVP – Postdisposition: Supervised Release – Revocation – Notice: Vague Condition

State v. Ervin Burris, 2004 WI 91, affirming 2002 WI App 262, 258 Wis. 2d. 454, 654 N.W.2d 866For Burris: Joseph L. SommersIssue: Whether a condition of supervised release, that Burris “avoid all conduct … that is not in the best interest of the public’s welfare or your rehabilitation” provided adequate notice that obtaining a prescription for Viagra would subject him to revocation.


¶53. Like a probation condition, a rule regulating the conduct of a sexually violent person on supervised release satisfies the procedural due process requirement of adequate notice if it is sufficiently precise for the probationer to know what conduct is required or prohibited. State v. Lo, 228 Wis. 2d 531, 535, 599 N.W.2d 659 (Ct. App. 1999). In the context of criminal statutes, we have stated that “when the alleged conduct of a defendant plainly falls in the prohibited zone, the defendant may not base a constitutional vagueness challenge on hypothetical facts.” State v. Pittman, 174 Wis. 2d 255, 277, 496 N.W.2d 74 (1993) (citing State v. Courtney, 74 Wis. 2d 705, 713, 247 N.W.2d 714 (1976)). We find the logic of this principle to apply with equal force in a challenge to the rules and conditions of supervised release under Wis. Stat. ch. 980.¶54. Burris does not allege that he was unaware that his actions were prohibited. Judge Welker found that it was Burris’s deceptive actions, and not the Viagra prescription per se, that violated Rule 1. Burris obtained the prescription without discussing the matter with his supervising agent or anyone else in authority….

¶56. We agree with the court of appeals that Burris’s conduct fell squarely within the prohibited zone of Rule 1. Burris cannot complain that Rule 1 is vague by arguing that he did not know what was prohibited because his own actions and reactions point to a contrary conclusion. Burris is therefore prohibited from challenging the rule on vagueness grounds because he himself was aware that, as a sexually violent person, his secretive conduct regarding his sex life was conduct not in the best interest of the public welfare or his rehabilitation.

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