Sexually Violent Persons — right to counsel

Listen to this article

Wisconsin Court of Appeals

Criminal

Sexually Violent Persons — right to counsel — right to independent examiner

Where the circuit court did not address a request for appointment of an independent examiner and counsel before reviewing and denying a petition for discharge, the denial must be reversed.

“The right to counsel at the time of the annual reexamination is a more specific statute than those statutes governing WIS. STAT. ch. 980 procedure in general. WISCONSIN STAT. § 980.03 is the general statute regarding a committed person’s rights under ch. 980. WISCONSIN STAT. § 980.09 outlines the general procedure for the review of all petitions for discharges, governing those filed in conjunction with the annual reexamination and those filed ‘at any time.’ WISCONSIN STAT. § 980.075, on the other hand, grants a specific right at a specific time: the committed person’s right to counsel when the department conducts its annual reexamination. The specific language of a statute should govern over the more general unless it appears the legislature intended to make general language controlling. State v. Amato, 126 Wis. 2d 212, 217, 376 N.W.2d 75 (Ct. App. 1985) (where one statute deals with a subject in general terms and another deals with a part of the same subject in a more detailed way, the two should be harmonized if possible; but if there is any conflict, the latter will prevail, unless it appears that the legislature intended to make the general act controlling). We see nothing in § 980.03(2) that suggests that the legislature intended to preempt the clear prohibition against proceeding on an annual reexamination petition for discharge prior to referral for an indigency determination and appointment of counsel under § 980.075. These provisions provide different rights under different circumstances. To the extent there is any conflict between the § 980.075 right to counsel at the time of reexamination and the general § 980.03(2) right to counsel at any hearing, § 980.075 controls.”

Reversed and Remanded.

Recommended for publication in the official reports.

2013AP321 State v. Jones

Dist. II, Kenosha County, Bastianelli, J., Neubauer, J.

Attorneys: For Appellant: Phillips, Steven D., Madison; For Respondent: Zapf, Robert D., Kenosha; Probst, Robert, Madison