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State v. Olson

Court of Appeals of Wisconsin, District III

October 8, 2019

State of Wisconsin, Plaintiff-Respondent,
v.
Larry W. Olson, Defendant-Appellant.

          APPEALS from orders of the circuit court for Marathon County: Nos. 2015CF436, 2015CF671 GREGORY E. GRAU, Judge.

          Before Stark, P.J., Hruz and Seidl, JJ.

          SEIDL, J.

         ¶1 In these consolidated cases, Larry Olson appeals from orders revoking his conditional release, pursuant to Wis.Stat. § 971.17(3)(e) (2017-18).[1] 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.

         ¶2 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 Department's petition.

         BACKGROUND

         ¶3 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.[2]

         ¶4 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.

         ¶5 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.

         ¶6 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).

         ¶7 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.

         ¶8 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.

         DISCUSSION

         ¶9 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.

         ¶10 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 ...


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