APPEALS from orders of the circuit court for Marathon County:
Nos. 2015CF436, 2015CF671 GREGORY E. GRAU, Judge.
Stark, P.J., Hruz and Seidl, JJ.
In these consolidated cases, Larry Olson appeals from orders
revoking his conditional release, pursuant to Wis.Stat.
§ 971.17(3)(e) (2017-18). The sole issue before us is
whether the time limit set forth in § 971.17(3)(e)
requiring that the Department of Health Services (the
Department) "shall submit" a statement of probable
cause and a petition to revoke an order for conditional
release within seventy-two hours of detaining a person is
directory or mandatory.
We conclude the seventy-two-hour time limit set forth in
Wis.Stat. § 971.17(3)(e) is mandatory. Consequently, the
Department's undisputed failure to comply with the time
limit in this case deprived the circuit court of competency
to consider the Department's petition to revoke
Olson's conditional release. We therefore reverse and
remand with directions for the court to dismiss the
In the two cases underlying this consolidated appeal, Olson
pleaded not guilty by reason of mental disease or defect
(NGI) to three total counts in the responsibility phase of
the NGI proceedings. Specifically, in Marathon County case
No. 2015CF671 Olson entered NGI pleas to one count of felony
bail jumping and one count of misdemeanor battery, and in
Marathon County case No. 2015CF436 he entered an NGI plea to
one count of first-degree sexual assault of a child under the
age of thirteen.
In September 2017, the circuit court committed Olson to the
Department for nineteen years. The court also ordered that
Olson be placed on conditional release.
One month later, on October 18, 2017, Olson reported to his
probation agent's office for a scheduled visit. During
this visit, Olson admitted to the agent that he had recently
smoked methamphetamine. He also provided a urine sample,
which tested positive for that drug. Based on Olson's
drug use, which undisputedly violated the rules of his
conditional release, he was immediately taken into custody by
the Department and detained in the Marathon County jail.
Eight days later, on October 26, 2017, the Department
submitted a statement of probable cause and a petition to
revoke Olson's conditional release to both the circuit
court and the regional office of the state public defender,
pursuant to Wis.Stat. § 971.17(3)(e). That statute
provides, in relevant part:
If the department of health services alleges that a released
person has violated any condition or rule, or that the safety
of the person or others requires that conditional release be
revoked, he or she may be taken into custody under the rules
of the department. The department of health services
shall submit a statement showing probable cause of
the detention and a petition to revoke the order for
conditional release to the committing court and the regional
office of the state public defender responsible for handling
cases in the county where the committing court is located
within 72 hours after the detention, excluding Saturdays,
Sundays, and legal holidays. The court shall hear the
petition within 30 days, unless the hearing or time deadline
is waived by the detained person.
Id. (emphases added).
Olson subsequently filed a motion to dismiss the petition
"for lack of competency to proceed." As grounds, he
asserted that because the Department originally detained him
on Wednesday, October 18, Wis.Stat. § 971.17(3)(e)
required the Department to submit its statement of probable
cause and petition to revoke his conditional release to the
circuit court and regional office of the state public
defender by Monday, October 23. Because the Department failed
to do so, he argued the court lacked competency to proceed
with the Department's petition.
On November 14, 2017, the circuit court held a hearing on
Olson's motion and the Department's petition. The
court first concluded that the seventy-two-hour time limit in
Wis.Stat. § 971.17(3)(e) was directory, as opposed to
mandatory, and it therefore denied Olson's motion. The
court then held the revocation hearing and ultimately ordered
Olson's conditional release revoked. Olson now appeals.
On appeal, the parties agree that the Department failed to
comply with the seventy-two-hour time limit set forth in
Wis.Stat. § 971.17(3)(e). They dispute, however, whether
the word "shall" in the relevant portion of the
statute is mandatory or directory in nature and whether-based
upon the answer to that question-the Department's failure
to comply with the time limit deprived the circuit court of
competency to consider the Department's petition.
Whether a circuit court has lost competency to proceed is a
question of law. State v. Schertz, 2002 WI.App. 289,
¶5, 258 Wis.2d 351, 655 N.W.2d 175. Likewise, whether a
statute is mandatory or directory is also question ...