State v. Olson

389 Wis.2d 257

936 N.W.2d 178

2019 WI App 61

STATE of Wisconsin, Plaintiff-Respondent,

v.Larry W. OLSON, Defendant-Appellant.

Appeal Nos. 2018AP1075-CR

2018AP1076-CR

Court of Appeals of Wisconsin.

Submitted on Briefs January 22, 2019

Filed October 8, 2019

On behalf of the defendant-appellant, the cause was submitted on the briefs of Andrew R. Hinkel, assistant state public defender of Madison.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Brad D. Schimel, attorney general, and Abigail C. S. Potts, assistant attorney general.

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 of law. Id. , ¶6. We review questions of law de novo. Id.

¶11 Competency to proceed in this context—i.e., when a party fails to comply with a statutory time limit—refers to a circuit court’s power to adjudicate the specific controversy before it. See id. , ¶5. A party’s failure to comply with a statutory time limit deprives a court of competency to proceed only when the time limit is mandatory. Id. , ¶6 ; see also Dodge Cty. v. Ryan E.M. , 2002 WI App 71, ¶5, 252 Wis. 2d 490, 642 N.W.2d 592. Thus, when the time limit is merely directory, a lack of compliance does not cause the court to lose competency to proceed. Schertz , 258 Wis. 2d 351, ¶14, 655 N.W.2d 175.

¶12 As indicated, WIS. STAT. § 971.17(3)(e) provides that the Department "shall submit" its petition to revoke a person’s conditional release to the circuit court and the regional office of the state public defender within seventy-two hours of detaining the person. The word "shall" is presumed mandatory when it appears in a statute. State v. Fitzgerald , 2019 WI 69, ¶25 n.8, 387 Wis. 2d 384, 929 N.W.2d 165. When used in a statute imposing a time limit, however, the word "shall" can nevertheless be "construed as directory if necessary to carry out the legislature’s clear intent." Karow v. Milwaukee Cty. Civil Serv. Comm'n , 82 Wis. 2d 565, 571, 263 N.W.2d 214 (1978).

¶13 Our supreme court has directed us to consider the following factors when determining whether a statutory time limit is mandatory or directory:

(1) the purpose of the statute; (2) the statute’s history; (3) whether a penalty or prohibition is imposed for the violation of the time limit; and (4) the consequences of interpreting the statutory time limit as either mandatory or directory, including whether the failure to act within the time limit works an injury or wrong. See State v. R.R.E. , 162 Wis. 2d 698, 708, 711, 470 N.W.2d 283 (1991). Before addressing the parties’ arguments concerning these factors we first address the State’s argument that, based upon our decision in Schertz , we are essentially bound to hold that the seventy-two-hour time limit is directory.

¶14 In Schertz , a hearing on a "petition to revoke [the defendant’s] conditional release was not held within thirty days of filing pursuant to WIS. STAT. § 971.17(3)(e)." Schertz , 258 Wis. 2d 351, ¶1, 655 N.W.2d 175. Accordingly, the issue on appeal was "whether the thirty-day [hearing] requirement in WIS. STAT. § 971.17(3)(e) is mandatory or directory." Id. , ¶6. After discussing the R.R.E. factors, we ultimately concluded "that the thirty-day requirement is directory. As a result, the failure to have a hearing within thirty days did not cause the court to lose competenc[y]." Id. , ¶14.

¶15 The State argues that "although Schertz specifically addressed the 30-day requirement for a hearing, this Court analyzed the whole [of WIS. STAT. § 971.17 ] (3)(e) generally, making its analysis controlling as to many of the relevant factors." Although we acknowledge that we are bound by our prior published decisions,³ we conclude that the State’s argument paints the Schertz decision with too broad of a brush for three reasons.

¶16 First, to read Schertz ’s analysis of WIS. STAT. § 971.17(3)(e) to control our analysis in this case would ignore that Schertz focused on one specific provision within an expansive statutory subsection that sets forth numerous requirements. For example, § 971.17(3)(e) contains a "notification requirement" stating that "[b]efore a person is conditionally released by the court under this subsection, the court shall so notify the municipal police department and county sheriff for the area where the person will be residing." Just as the Schertz decision could not be construed as rendering this requirement directory, so too does Schertz not speak to whether the seventy-two-hour submission requirement is mandatory or directory.

¶17 Second, the thirty-day hearing provision at issue in Schertz and the seventy-two-hour time limit at issue here govern different actors: the former applies to the circuit court and the latter applies to the Department. As the court’s and the Department’s roles in proceedings under WIS. STAT. § 971.17(3)(e) are fundamentally different, we cannot simply assume that the legislature’s "clear intent" was the same in prescribing the different requirements that govern these different roles. See Karow , 82 Wis. 2d at 571, 263 N.W.2d 214.

¶18 Third, WIS. STAT. § 971.17(3)(e) expressly provides that either the revocation hearing itself, or the thirty-day time deadline within which to hold the hearing, may be waived "by the...