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SVP – Pretrial – Probable Cause Hearing – Timeliness

State v. Deryl B. Beyer, 2001 WI App 167, PFR filed
For Beyer: Jack E. Schairer, SPD, Madison Appellate

Issue1: Whether the trial court lost competence because the 72-hour time limit for a probable cause hearing, imposed by § 980.04(2), had passed.

Holding: Although the statutory time limit uses the term “shall,” it is directory rather than mandatory. “¶11. Under Wis. Stat. § 980.02(2), the State has only one ninety-day window of opportunity to petition for commitment. See Brissette, 230 Wis. 2d at 85; see also State v. Thomas, 2000 WI App 162, ¶13, 238 Wis. 2d 216, 617 N.W.2d 230. If the circuit court were to lose competence whenever the seventy-two-hour time limit is not met, in many cases the subjects of Wis. Stat. ch. 980 petitions could avoid that ninety-day window by making last-minute requests for judicial substitution. This would be a particularly likely scenario where the state has not filed a petition early in the ninety-day time window. Many offenders who are otherwise proper candidates for ch. 980 commitment would avoid treatment and remain a danger to the public simply by requesting a judicial substitution. The legislature could not have intended this result, and we therefore conclude that the seventy-two-hour limit in Wis. Stat. § 980.04(2) is directory.”

Issue2: Whether delay of approximately two months in holding the probable cause hearing violated due process.

Holding: Though the statutory time limit of 72 hours for holding a probable cause hearing is merely directory, it may not be extended “indefinitely.” Instead, any delay is bounded by considerations of due process. ¶¶13-14. Due process was satisfied here, the court stressing: “¶16. We caution that the length of delay that we have deemed permissible in Beyer’s case will not necessarily be reasonable in all Wis. Stat. ch. 980 cases. Beyer’s situation is extraordinary in that he made his request for judicial substitution at the last minute. The trial court found that ‘the substitution request was filed at approximately 5:00 p.m. on the 12th day of October, 1998, after normal business hours ….’ Such a strategy is particularly ill-advised in counties, as here, where only one circuit court judge sits.”

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