00-0036 In Re: the Commitment of Deryl B. Beyer, State of Wisconsin v. Beyer

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However, we must reverse defendant’s commitment in light of recent decisions which hold that a Ch. 980 commitment petition must be filed within 90 days of his discharge or release; see, for example, State v. Thiel, 2000 WI 67. Defendant should receive an evidentiary hearing or trial limited to evidence relating to the 90-day element.

“The principal purposes behind Wis. Stat. Ch. 980 are (1) the treatment of convicted sex offenders who are at a high risk to reoffend and (2) the protection of the public from such offenders. [citations] Were we to conclude that the seventy-two-hour time limit in Wis. Stat. ß 980.04(2) is mandatory, the consequences would undermine these objectives. …

“Our conclusion that the 72-hour time limit is directory does not mean that trial courts may ignore the time limit, nor does it mean that extending the time limit indefinitely is a matter purely within the trial court’s discretion.

“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.”

Finally, “[b]ecause Beyer has brought this direct appeal from the judgment committing him and has clearly raised the ninety-day issue in his appellate briefs, he is entitled to the benefit of Thiel I. … We therefore remand rather than attempt to decide whether the State has met its burden. On remand, the trial court will be able to conduct a trial or evidentiary hearing at which the State may attempt to prove beyond a reasonable doubt that it filed the commitment petition within 90 days of Beyer’s release. “

Reversed and remanded.

Recommended for publication in the official reports.

Dist IV, Green County, LaRocque, J., Dykman, P.J.

Attorneys:

For Appellant: Jack E. Schairer, Madison

For Respondent: Stephen W. Kleinmaier, Madison; Gary L. Luhman, Monroe