Wis JI-Criminal SM-50

The following Special Material outlines the procedures relating to a criminal defendant’s

competency to proceed as those procedures are set forth in sections 971.13 and 971.14,

Wisconsin Statutes. The material takes into account the changes in those statutes made by

legislation through the end of the 2021-22 legislative session.

CONTENTS

I. The Legal Standard for Incompetency......................................................................................... 3

A. “Lacks substantial mental capacity” ................................................................................... 3

B. “To understand the proceedings or to assist in his or her own defense” ............................ 3

C. Rationale for the competency rule...................................................................................... 4

D. Competency and related issues........................................................................................... 4

1. Competency and criminal responsibility....................................................................... 4

2. Competency and self-representation............................................................................. 5

3. Competency and amnesia............................................................................................. 5

4. Chapter 980 sexually violent person commitments...................................................... 6

II. When and How Is Competency Raised? ..................................................................................... 6

A. May be raised at any time................................................................................................... 6

1. In the trial court............................................................................................................. 6

2. During postconviction proceedings.............................................................................. 6

3. During probation revocation proceedings..................................................................... 8

4. Retrospective evaluation of a defendant’s competency to stand trial.......................... 9

B. “Reason to doubt” the defendant’s competency................................................................ 9

C. Who may raise the issue? ................................................................................................... 9

1. Defense counsel........................................................................................................... 9

2. Defendant................................................................................................................... 10

3. Prosecutor.................................................................................................................. 10

4. Court – sua sponte...................................................................................................... 10

D. Basis for “reason to doubt” competency.......................................................................... 10

E. Probable cause determination........................................................................................... 11

1. Unnecessary, if after preliminary examination.......................................................... 11

2. From the complaint, unless the defendant comes forward.......................................... 11

3. Hearing on probable cause.......................................................................................... 12

III. The Competency Examination.................................................................................................. 12

A. Ordering the examination................................................................................................. 12

1. Appointing examiners................................................................................................. 12

2. Outpatient examinations preferred.............................................................................. 12

3. Inpatient examinations................................................................................................ 13

4. The commitment order for an examination................................................................. 13

5. Examiner’s duties........................................................................................................ 14

6. Medication and treatment during the examination period.......................................... 14

7. Examination by other experts..................................................................................... 14

B. The examiner’s report....................................................................................................... 14

1. Time limits for filing................................................................................................... 14

2. Contents...................................................................................................................... 15

3. Filing and distribution................................................................................................ 15

IV. The Judicial Determination Regarding Competency................................................................ 16

A. The hearing on competency.............................................................................................. 16

1. The need for an evidentiary hearing........................................................................... 16

2. The burden of persuasion............................................................................................ 17

B. If the court finds the defendant competent to proceed, the criminal

proceeding shall resume.................................................................................................... 19

C. If the court finds the defendant incompetent to proceed, the court must determine

if the defendant is likely to regain competency................................................................. 19

1. Recovery of competency not likely: release of defendant......................................... 19

2. Recovery of competency likely: commitment of defendant...................................... 19

V. Commitment as not competent to proceed – § 971.14(5)(a)

A. Basis for and terms of a commitment order...................................................................... 20

1. Basis for commitment................................................................................................. 20

2. Length of commitment................................................................................................ 20

3. The commitment order................................................................................................ 20

B. The right to refuse medication; involuntary medication orders........................................ 21

C. Suspension of the criminal proceedings............................................................................ 24

VI. Reexamination and Reports...................................................................................................... 24

A. Timing of the reports......................................................................................................... 24

B. Contents of the reports – § 971.14(5)(b)........................................................................... 24

C. Reexamination hearing; when required and how conducted............................................. 24

VII. The Defendant Who Regains Competency............................................................................... 25

A. Competency regained........................................................................................................ 25

B. Competency dependent on medication............................................................................. 25

C. Recommitment.................................................................................................................. 25

D. Sentence credit.................................................................................................................. 25

VIII. Competency Not Regained: Discharge from the Commitment............................................... 26

A. Releasing the defendant.................................................................................................... 26

1. Periodic return to court............................................................................................... 26

2. Reexamination of competency.................................................................................... 26

3. Status of the criminal charges.................................................................................... 26

B. Transition to civil commitment......................................................................................... 26

1. Detention – § 971.14(6)(b)......................................................................................... 27

2. Commitment “statement”............................................................................................ 27

3. Filing the statement..................................................................................................... 27

4. If a person is committed.............................................................................................. 27

5. Notice of transfer or discharge................................................................................... 28

6. Subsequent competency examinations....................................................................... 28

I. The Legal Standard for Incompetency

Section 971.13(1) provides: “No person who lacks substantial mental capacity to

understand the proceedings or assist in his or her own defense may be tried, convicted, or

sentenced for the commission of an offense so long as the incapacity endures.” (Emphasis

added.)

A. “Lacks substantial mental capacity”

The phrase “lacks substantial mental capacity” replaced the former statute’s “as a result

of mental disease or defect is unable. . .” Thus, there is no need to identify a particular

mental disease as the source of the alleged difficulty. The co-reporters for the Judicial

Council committee that drafted the current competency statutes state:

Not every defendant with a clinically recognized mental disorder is incompetent

to stand trial. The legal standard is whether the defendant has the present mental

capacity to understand the proceedings and assist in his or her own defense.

The new legislation does not change this standard. It does clarify, however,

that a defendant should not be considered incompetent to proceed merely

because he or she requires medication to maintain legal competency.

Fosdal and Fullin, “Wisconsin’s New Competency to Stand Trial Statute,” Wisconsin Bar

Bulletin (Oct. 1982) p. 11.

The term “lacks substantial mental capacity” can include intellectual disability as the

basis for an incompetency finding. In State v. Garfoot, 207 Wis.2d 215, 227-28, the

Wisconsin Supreme Court made the following comments in connection with a suggestion

noted in the state’s argument that intellectual disability alone may not warrant a finding

that the defendant is not competent to stand trial:

The State is correct in that mental retardation in and of itself is generally

insufficient to give rise to a finding of incompetence to stand trial. However a

defendant may be incompetent based on retardation alone if the condition is so

severe as to render him incapable of functioning in critical areas.

B. “To understand the proceedings or to assist in his or her own defense”

This part of the standard has been part of Wisconsin law since 1965. The constitutional

standard was stated as follows in Dusky v. United States, 362 U.S. 402 (per curiam, 1960):

“. . . the test must be whether he has sufficient present ability to consult with his lawyer

with a reasonable degree of rational understanding – and whether he has a rational as well

as a factual understanding of the proceedings against him.” The Wisconsin Supreme Court

has held that § 971.13(1) codifies the Dusky standard. State v. Garfoot, supra, 207 Wis.2d

215, 226.1

The same standard for competency applies at any stage of the proceedings. A higher or

more demanding standard is not required for the decision to withdraw a plea of not guilty

by reason of mental disease or defect. State v. Byrge, 225 Wis.2d 702, 712, 594 N.W.2d

388 (Ct. App. 1999).

C. Rationale for the competency rule

The rule against trying a person who is not competent is grounded in due process: it

violates fundamental fairness to prosecute a defendant who is not able to fully exercise his

or her constitutional procedural rights. Further, “a defendant’s full assistance and

cooperation has been traditionally thought essential to developing the ‘true facts’ of the

case.” State ex rel. Matalik v. Schubert, 57 Wis.2d 315, 322, 204 N.W.2d 13 (1973).

D. Competency and related issues

It is often the defendant’s courtroom behavior, inability to understand procedures, or

difficulty in getting along with counsel that first gives reason to doubt competency to

proceed. These problems may indicate other issues as well. These related issues are

discussed briefly below.

1. Competency and criminal responsibility

Competency to stand trial is concerned with the defendant’s mental condition at the

time of the trial. Only the mental conditions that affect the ability to understand the

proceedings and assist in the defense are at issue.

Criminal responsibility (or the “insanity defense”) differs in two important respects.

First, it is concerned with the defendant’s mental condition at the time of the offense.

Second, it is concerned with the effect of that mental condition on the defendant’s ability

to tell right from wrong or to conform his or her conduct to what the law requires.

A person with serious mental problems may present both competency to proceed and

insanity defense issues, only one of them, or neither one. Trial courts should be alert for

indications that either issue needs to be pursued and keep in mind the different time frames

and abilities that each issue involves.

Courts sometimes order that competency and criminal responsibility evaluations be

conducted at the same time or order an inpatient criminal responsibility examination.

There is no statutory authority for an inpatient examination of a defendant’s criminal

responsibility. Trying to combine that examination with a competency evaluation causes

problems for the examiners because there usually is not enough time to conduct both of

them.

2. Competency and self-representation

This Special Material is concerned with competency to proceed in cases where the

defendant is represented by counsel.2 Occasionally, the competency of defendants who

seek to represent themselves is questioned. Competency to stand trial is not the same as

competency to proceed pro se. Pickens v. State, 96 Wis.2d 549, 567, 292 N.W.2d 601

(1980). In State v. Klessig, 211 Wis.2d 194, 564 N.W.2d 716 (1997), the Wisconsin

Supreme Court reaffirmed the Pickens rule and reversed a decision of the court of appeals

that had held that separate inquiry into “competence for self-representation” was no longer

required.

Extensive discussion of waiver of counsel, self-representation, and related issues is

beyond the scope of this Special Material. But because these issues often arise in

conjunction with competency to stand trial questions, a few considerations relating to the

competency inquiry should be emphasized.

First, whether or not the defendant is represented by counsel, the court must determine

if there is “reason to doubt” the defendant’s competency to proceed. If there is “reason to

doubt,” the examination procedures set forth in subsecs. (1)-(3) of § 971.14 and outlined

in this Special Material should be followed. If the court determines that the defendant is

not competent to proceed, a commitment under § 971.14(5) should follow.

Second, if the defendant is found to be competent to proceed and wishes to proceed pro

se, the court must determine if the defendant is making a knowing and voluntary waiver of

the right to counsel. If the waiver is valid, a further inquiry must be made to determine

whether the defendant “possesses the minimal competency necessary to conduct his own

defense.” Pickens, 96 Wis.2d 549 at 569, reaffirmed in Klessig, 211 Wis.2d 194, 212. For

a complete discussion, see SM 30 WAIVER AND FORFEITURE OF COUNSEL; SELF-REPRESENTATION; STANDBY COUNSEL; “HYBRID REPRESENTATION”;

COURT APPOINTMENT OF COUNSEL.

3. Competency and amnesia

Amnesia by itself does not mean that a defendant is not competent to stand trial.

Questions relating to amnesia may be raised by a request for a competency evaluation and,

as to the competency issue, the regular standard applies. A defendant may suffer from

amnesia and be competent under this standard. In those cases, Wisconsin courts have

adopted a six-part test to determine whether the defendant – competent but claiming

amnesia – can receive a fair trial. See State v. McIntosh, 137 Wis.2d 339, 404 N.W.2d 557

(Ct. App. 1987), and State v. King, 187 Wis.2d 548, 523 N.W.2d 159 (Ct. App. 1994).

4. Chapter 980 sexually violent person commitments

Section 971.14 once applied to chapter 980 commitments pursuant to Wis. Stat. §

980.05(1m) (2003-04). The previous version of § 980.05(1m) provided: “At the trial to

determine whether the person who is the subject of a petition under § 980.02 is a sexually

violent person, all rules of evidence in criminal actions apply. All constitutional rights

available to a defendant in a criminal proceeding are available to the person.” However, §

980.05(1m) was repealed by 2005 Wis. Act 434, §§ 101, 131(1) [effective August 1, 2006].

Therefore, because competency evaluations under § 971.14 are limited to criminal case

defendants, they no longer apply to prisoners against whom a ch. 980 petition has been

filed.

The Wisconsin Court of Appeals affirmed this in In Re Commitment of Luttrell, 2008

WI App 93, 312 Wis.2d 695, 754 N.W.2d 249 when it held that a prisoner eligible for

commitment under § 980.05(5) did not have a due process right to a competency evaluation

under § 971.14. The court concluded that a ch. 980 action is a civil commitment, not a

criminal prosecution, thus a prisoner against whom a ch. 980 petition has been filed is not

a criminal case defendant. Luttrell, supra, at ¶7. Although a successful ch. 980 petition

results in continued confinement, prisoners determined to be sexually violent persons are

confined for treatment purposes, not for punishment. Id. at ¶9.

II. When and How Is Competency Raised?

A. May be raised at any time

1. In the trial court

Competency may be raised at any time between the filing of charges and the

pronouncement of judgment. While questions about competency are usually raised before

trial, it can become an issue after trial but before sentencing. State v. McKnight, 65 Wis.2d

582, 223 N.W.2d 550 (1974).

2. During postconviction proceedings

In State v. Debra A.E., 188 Wis.2d 111, 523 N.W.2d 727 (1994), the Wisconsin

Supreme Court addressed the standards and procedures to be used when competency is

raised during postconviction proceedings. First, the court noted that the procedures set forth

in §§ 971.13 and 971.14 govern competency determinations only through the sentencing

stage of a criminal trial and that they do not require circuit courts to rule on competency

during postconviction relief proceedings. 188 Wis.2d 111, 128 & n.14. However, when the

question of competency is raised in the circuit court at the postconviction stage, the court

has the power to consider the question and should use the same “reason to doubt standard”

employed under § 971.14. 188 Wis.2d 111, 131 & n.17. The court may use its discretion

to determine how the competency evaluation should be made; if a hearing is held, the court

should be guided by § 971.14 to the extent feasible. 188 Wis.2d 111, 131-32. The standard

for the competency decision is as follows: “. . . a defendant is incompetent to pursue

postconviction relief. . . when he or she is unable to assist counsel or to make decisions

committed by law to the defendant with a reasonable degree of rational understanding.”

188 Wis.2d 111, 126.

Because § 971.14(4) governs competency determinations only through the sentencing

stage of a criminal trial and no other statutory section governs the standard of proof and

the allocation of the burden of persuasion on the competency/incompetency issue during a

postconviction proceeding, the burden of proof applicable during such proceedings has

been established by case law. In State v. Daniel, 2015 WI 44, 362 Wis.2d 74, 862 N.W.2d

867, the supreme court held that when the issue of a defendant’s competency is raised, and

the state contends the defendant is competent, it has the burden of proving competency by

a preponderance of the evidence.

If the court finds that a defendant is not competent at the postconviction stage, “the

court’s goal is to fashion a process through which circuit courts and counsel can manage

the postconviction relief. . . while protecting defendants’ fair opportunity for

postconviction relief and promoting the effective administration of the judicial system. . .

[O]rdinarily this process need not include a court order for treatment to restore competency.

Meaningful postconviction relief can be provided even though a defendant is incompetent.”

188 Wis.2d 111, 129 30. The court identified the following alternatives for the court to

apply as appropriate:

(1) continuation of postconviction relief proceedings – defense counsel should initiate

or continue postconviction relief on a defendant’s behalf when any issues rest on the

record, do not necessitate the defendant’s assistance or decision making, and involve

no risk to the defendant;

(2) continuances or enlargement of time limits for postconviction relief [if issues do

necessitate the defendant’s assistance or decision making];

(3) appointment of temporary guardians – upon defense counsel’s request, to make

the decisions the law requires the defendant to make; and

(4) permitting defendants who regain competency to raise issues at a later proceeding

that could not have been raised earlier because of incompetency.

188 Wis.2d 111, 133-36.

In State v. Scott, 2018 WI 74, 382 Wis.2d 476, 488, 914 N.W.2d 141, the supreme court

reinforced Debra A.E.’s observation that postconviction competency proceedings will

“ordinarily … not include a court order for treatment to restore competency,” 188 Wis. 2d

at 130. The court held that the circuit court acted prematurely when it ordered the defendant

to be medicated to competency “without first determining whether and to what extent

postconviction proceedings could continue despite the defendant’s incompetency.” Scott,

382 Wis.2d 476, ¶26. Scott requires a circuit court to follow the mandatory procedures

established in Debra A.E. before it may order a non-dangerous but incompetent defendant

involuntarily medicated for the purpose of conducting a postconviction proceeding. Scott,

382 Wis.2d 476, ¶21-26. See also Debra A.E., 188 Wis.2d 111, 131- 36.

If an involuntary medication order is entered during postconviction proceedings, the

defendant may appeal the order as a matter of right under § 808.03(1) and is entitled to an

automatic stay of the medication order pending appeal. Scott, 382 Wis.2d 476, ¶42-44;

State v. Green, 2022 WI 30, ¶¶18-36, 401 Wis.2d 542, 973 N.W.2d 770 (holding that

Scott’s automatic stay rule does not apply to pretrial involuntary treatment orders). The

State may seek to lift an automatic stay pending appeal under the standard set forth in State

v. Gudenschwager, 191 Wis. 2d 431, 529 N.W.2d 225 (1995), as modified by the court in

Scott. 382 Wis.2d 476, ¶¶45-48.

3. During probation revocation proceedings

In State ex rel. Vanderbeke v. Endicott, 210 Wis.2d 503, 563 N.W.2d 883 (1997), the

Wisconsin Supreme Court set forth the procedure to be employed when competency is

raised during a probation revocation proceeding.

If an administrative law judge has reason to doubt the probationer’s competency, the

revocation proceeding is to be stayed until a competency determination can be made. An

administrative law judge having reason to doubt a probationer’s competency shall promptly

forward a written request for a competency determination to the circuit court in the county

in which the probationer was sentenced. The request shall be accompanied by a copy of

the papers on file in the revocation proceeding and the administrative law judge’s written

statement explaining the grounds for finding reason to doubt the probationer’s competency.

Upon receipt of the written request from an administrative law judge, the circuit court

shall determine the probationer’s competency. The procedures for determining competency

to proceed at trial, set forth in § 971.14, shall be followed to the extent practicable.

4. Retrospective evaluation of a defendant’s competency to stand trial

The ability to conduct a retrospective determination of a defendant’s competency to

stand trial is inherently difficult. However, in State v. Johnson, 133 Wis.2d 207, 225, 395

N.W.2d 176 (1986), the court of appeals determined that “the mere passage of time may

not make the effort meaningless” if there is sufficient evidence in the record derived from

the trial. By analyzing the applicable legal and medical records, along with a current

medical evaluation, the court determined that it was possible to produce “a hindsight

picture of Johnson’s competency at the time of trial.” Id. at 225.

If the circuit court concludes that a meaningful inquiry can be held, it must then hold a

competency hearing. If the circuit court finds that a meaningful hearing cannot be held, or

if it finds that the accused was incompetent during the trial, then it must vacate the

judgment of conviction and order a new trial. Because “retrospective determinations of

competency are factual determinations,” they will be upheld “unless totally unsupported

by facts in the record and, therefore, clearly erroneous.” See State v. Smith, 2016 WI 23,

¶30, 367 Wis.2d 483, 878 N.W.2d 135; See also, State v. Byrge, 2000 WI 101, ¶33, 237

Wis.2d 197, 614 N.W.2d 477; State v. Garfoot, 207 Wis.2d 214, 224-25, 558 N.W.2d 626

(1997); Wis. Stat. § 805.17(2).

B. “Reason to doubt” the defendant’s competency

Section 971.14(1r)(a) requires that a competency inquiry be made “whenever there is

reason to doubt a defendant’s competency to proceed.” Defendants who may be

incompetent cannot waive the right to have the court determine their capacity to stand trial.

Pate v. Robinson, 383 U.S. 375, 384 (1966).

C. Who may raise the issue?

1. Defense counsel

Defense counsel usually raises the competency issue and may do so either by written

motion or orally, on the record, in court. If defense counsel has reason to doubt the

defendant’s competency, counsel must bring the issue to the trial court’s attention. Failure

to do so constitutes ineffective assistance of counsel. State v. Johnson, 133 Wis.2d 207,

395 N.W.2d 176 (1986). In Johnson, defense counsel had letters from a psychiatrist and a

psychologist expressing serious doubts about the defendant’s competency but made the

“strategic decision” to withhold the letters from the court. The defendant was convicted,

but the conviction was reversed on the ground that counsel’s failure to raise the competency

issue constituted ineffective assistance of counsel as a matter of law. “. . . [W]here defense

counsel has a reason to doubt the competency of his client to stand trial, he must raise the

issue with the trial court. The failure to raise the issue of competency makes the counsel’s

representation fall below an objective standard of reasonableness. . . . We believe that

considerations of strategy are inappropriate in mental competency situations. Thus, we hold

that strategic considerations do not eliminate defense counsel’s duty to request a

competency hearing.” 133 Wis.2d 207, 220 21.

In State v. Meeks, 2003 WI 104, 263 Wis.2d 794, 666 N.W.2d 859, the Wisconsin

Supreme Court held that a lawyer who formerly represented the defendant could not testify

about his or her perceptions of the former client’s competency when competency was

raised in a new prosecution. [See discussion at Sec. IV. A.1., below.] The court adopted

what is characterized as the minority view on this issue and admitted that it creates a tension

with the Johnson decision. The court did not overrule Johnson, pointing out that:

The attorney is merely obligated to “raise the issue [of competency] with the trial

court.” Johnson, 133 Wis.2d at 220. There is no requirement that the attorney

testify about his or her reasons for raising the issue or the opinions, perceptions,

or impressions that form the basis for his or her reason to doubt the client’s

competence. Meeks, 263 Wis.2d 794, ¶46.

2. Defendant

Defendants may occasionally try to raise the competency issue themselves, even if

defense counsel has not. In these situations, courts may wish to conduct an inquiry to

establish whether the defendant’s competency is the problem as opposed to difficulty in

getting along with defense counsel or simply dissatisfaction with defense counsel.

3. Prosecutor

The prosecutor may also choose to raise the competency issue. In these cases, courts

should be aware that in some instances, criminal charges followed by a prosecutor’s raising

the defendant’s competency to proceed have been used as a substitute for initiating civil

commitment proceedings under Chapter 51.

4. Court – sua sponte

Even if competency is not raised by the parties, a court has a duty to make an inquiry

into competency whenever the defendant’s conduct gives rise to “reason to doubt.” Drope

v. Missouri, 420 U.S. 162 (1975); Pate v. Robinson, 383 U.S. 375 (1966).

D. Basis for “reason to doubt” competency

A statement by the defendant or defense counsel to the effect that the defendant cannot

understand the proceedings may not be enough to trigger a full competency inquiry and is

not sufficient if negated by the defendant’s actions, such as preparing motions that show

an understanding of the proceedings. State v. McKnight, 65 Wis.2d 582, 223 N.W.2d 550

(1974). The claim should be supported by facts, such as the defendant’s demeanor, medical

history, the presence of irrational behavior, any prior medical opinions on competency to

stand trial, etc. While defense counsel’s representations need not be accepted without

question, the United States Supreme Court has recognized that doubt expressed by the one

with the closest contact with the defendant “is unquestionably a factor which should be

considered.” Drope v. Missouri, 420 U.S. 162, 177 n.13 (1975). If competency is not raised

in open court, the presentation of a written motion (often captioned “Motion for

Competency Evaluation”) is an effective method for calling the issue to the court’s

attention.

In some cases, the “reason to doubt” competency will be obvious. In more difficult

cases, it may be necessary to conduct an evidentiary hearing to help the court decide

whether the full competency inquiry should be ordered.

In State v. Weber, 146 Wis.2d 817, 433 N.W.2d 583 (Ct. App. 1988), the court reviewed

the “reason to doubt” standard in light of four factors: a statement by the defendant’s first

lawyer that he had “some question” regarding competency; the defendant’s demeanor in

the courtroom, specifically his silence and responses to certain questions; a civil mental

commitment several years earlier; and statements by the defendant’s second lawyer at

sentencing to the effect that the defendant was under psychiatric care. The court concluded

that these factors did not, individually or in combination, establish a “reason to doubt”

competency.

E. Probable cause determination

When the court is satisfied that there is reason to doubt the defendant’s competency, an

examination of the defendant is to be ordered but only after a finding that it is probable that

the defendant committed the offense charged.

1. Unnecessary, if after preliminary examination

If the question about competency arises after the preliminary examination, a further

probable cause determination is not required. § 971.14(1r)(b).

2. From the complaint, unless the defendant avers the complaint is false

If competency is raised before the preliminary examination in a felony case (or at any

time before the verdict is returned in a misdemeanor), the court may not order a competency

evaluation until satisfied that it is probable that the defendant committed the offense

charged.

The probable cause finding may be based solely upon the criminal complaint unless the

defendant “submits an affidavit alleging with particularity that the averments of the

complaint are materially false,” in which case a hearing must be ordered. § 971.14(1r)(c).

3. Hearing on probable cause

The hearing is limited to the issues and witnesses required for determining probable

cause. The defendant may call and cross examine witnesses. The rules of evidence do not

apply. § 911.01(4)(c).

Section 971.14(1r)(c) allows the receipt of testimony over the telephone at the probable

cause hearing: “Upon a showing by the proponent of good cause under § 807.13(2)(c),

testimony may be received into the record of the hearing by telephone or live audiovisual

means.”

If the court finds that probable cause is not established, the charge shall be dismissed

without prejudice, and the defendant shall be released (subject to being held in custody or

continued on bail for not more than 72 hours pending the issuance of a new complaint –

see § 971.31(6)). If the court finds that probable cause exists, an examination is ordered. §

971.14(1r)(c).

III. The Competency Examination

A. Ordering the examination

1. Appointing examiners

“One or more” examiners are to be appointed; they need not be psychiatrists but must

have “the specialized knowledge determined by the court to be appropriate.” §

971.14(2)(a). This is a change from prior law, which required that examiners be

“physicians.”

2. Outpatient examinations preferred

A defendant released on bail may not be ordered to have an inpatient examination unless

the defendant fails to cooperate in the examination or the examiner informs the court that

inpatient observation is necessary to an adequate examination. § 971.14(2)(b).

If the defendant is not released on bail, outpatient examinations are required unless “an

inpatient examination is determined by the court to be necessary.” § 971.14(2)(a).

3. Inpatient examinations

If an inpatient examination is found to be necessary, the defendant may be committed

to “a suitable mental health facility” for up to 15 days. § 971.14(2)(a) and (c). The facility

may request one 15 day extension if it can show good cause why the examination cannot

be completed within the original period. § 971.14(2)(c).

The Department of Health Services determines where the evaluations take place. §

971.14(2)(am):

Notwithstanding par. (a), if the court orders the defendant to be examined by the

department or a department facility, the department shall determine where the

examination will be conducted, who will conduct the examination and whether the

examination will be conducted on an inpatient or outpatient basis. Any such

outpatient examination shall be conducted in a jail or a locked unit of a facility. In

any case, under this paragraph in which the department determines that an inpatient

examination is necessary, the 15 day period under par. (c) begins upon the arrival

of the defendant at the inpatient facility. If an outpatient examination is begun by

or through the department, and the department later determines that an inpatient

examination is necessary, the sheriff shall transport the defendant to the inpatient

facility designated by the department, unless the defendant has been released on

bail.

The court must arrange for the transportation of in-custody defendants to the

examining facility and back to the jail. § 971.14(2)(d).

Time spent at an inpatient facility for a competency examination is time for which

sentence credit is due under § 973.155 if the defendant is eventually convicted and

sentenced. § 971.14(2)(a).

4. The commitment order for an examination

The commitment order should be executed completely and clearly. Use of the officially

adopted circuit court form is required. § 971.025(1). The form is CR205 (revised February

2017), available on the state court website: http://www.wicourts.gov/. It should indicate

the name of the defense counsel3 and the prosecutor since examiners often wish to consult

with the lawyers in conducting the examination. The examiners also find it helpful if the

commitment order is accompanied by documents that provide more information about the

defendant and the offense. The criminal complaint should be attached to the commitment

order in all cases. When available, the following materials are also helpful:

• police reports

• record of previous convictions or arrests

• a presentence report from other recent cases

• any other clinical records the prosecutor may have.

This additional material is especially important for inpatient examinations since they must

be completed within 15 days.

5. Examiner’s duties

The examiner shall personally observe and examine the defendant and shall have access

to treatment records. § 971.14(2)(e). “Treatment records” are defined in § 51.30(1)(b).

6. Medication and treatment during the examination period

Section 971.14(2)(f) provides that a defendant may receive voluntary treatment during

the examination period. This “clarifies that a defendant on examination status may receive

voluntary treatment but, until committed under sub. (5) may not be involuntarily treated or

medicated unless necessary for the safety of the defendant or others. See s. 51.61(1)(f), (g),

(h), and (i).” Judicial Council Committee’s Note, 1981. Also, see State ex rel. Jones v.

Gerhardstein, 141 Wis.2d 710, 416 N.W.2d 823 (1987), discussed in Sec. V.B., below.

7. Examination by other experts

Section 971.14(2)(g) provides that the defendant may be examined at any time by other

experts chosen by the defendant or by the prosecution. These experts must be allowed

reasonable access to the defendant. The examinations are limited to competency purposes.

B. The examiner’s report

The requirements for the report and its contents are specified in § 971.14(3).

1. Time limits for filing

Section 971.14(2)(c) establishes the following time limits:

a. Outpatient examinations: within 30 days of the ordering of the

examination.

b. Inpatient examinations: within 15 days of the ordering of the examination

(unless the single permissible 15-day extension has been ordered, in which

case within 30 days).4

2. Contents

Section 971.14(3) requires that the report contain the following:

a. Description of the examination.

b. Identification of the persons interviewed, the specific records reviewed,

and any tests administered.

c. The clinical findings of the examiner.

d. The examiner’s opinion regarding the defendant’s present mental capacity

to understand the proceedings and assist in his or her defense, including the

facts and reasoning, in reasonable detail, upon which that opinion is based.

e. If the report indicates the defendant lacks competency, the examiner’s

opinion regarding the likelihood that the defendant, if provided treatment,

may be restored to competency within 12 months (or the maximum

sentence for the most serious offense with which the defendant is charged,

whichever is less).

f. If sufficient information is available, the examiner’s opinion on whether

the defendant needs medication or treatment and whether the defendant is

not competent to refuse medication or treatment. [Sub. (3)(dm).]

Section 971.14(3)(e) further requires that the report contain “the facts and reasoning, in

reasonable detail” for the findings and opinions set forth in c. through f., above.

3. Filing and distribution

The report is to be filed with the court (§ 971.14(3)), and the “court shall cause copies

of the report to be delivered forthwith to the district attorney and defense counsel, or the

defendant personally if not represented by counsel.” § 971.14(4)(a).

“Upon the request of the sheriff or jailer charged with care and control of the jail in

which the defendant is being held. . . , the court shall cause a copy of the report to be

delivered to the sheriff or jailer.” § 971.14(4)(a).

The report shall not be otherwise disclosed prior to the hearing on competency. §

971.14(4)(a).

IV. The Judicial Determination Regarding Competency

Competency to stand trial is a legal issue to be decided by the court. A finding is not to

be made on the basis of rubber stamping the expert’s report. State ex rel. Haskins v. Dodge

County Court, 62 Wis.2d 250, 264, 214 N.W.2d 575 (1974). Stated another way, the

ultimate legal conclusion of competency to stand trial is a judicial rather than medical

determination. State v. Smith, 2016 WI 23, ¶52, 367 Wis.2d 483, 878 N.W.2d 135.

A. The hearing on competency

1. The need for an evidentiary hearing

A full evidentiary hearing is not always required since the statutes allow the district

attorney, the defendant, and the defense counsel to “waive their respective opportunities to

present other evidence on the issue.” § 971.14(4)(b). In State v. Guck, 176 Wis.2d 845, 500

N.W.2d 910 (1993), the court held that § 971.14(4)(b) does not require a personal statement

by a defendant waiving the evidentiary hearing. In Guck, defense counsel stated in the trial

court that he had discussed the report and the right to a hearing with the defendant and that

the defendant wished to waive the hearing. The court concluded that “the Legislature did

not intend to require a personal statement by a criminal defendant waiving the opportunity

to present evidence on the issue of competency under sec. 971.14(4)(b).” 176 Wis.2d 845,

855.

Though Guck makes it clear that the statute does not require a personal statement by

the defendant, the Committee continues to recommend as good practice that the court

personally inquire of the defendant whether he or she concurs in the waiver. A simple

question at this stage may help to forestall a later, more cumbersome inquiry into the

effectiveness of defense counsel.

Section 971.14(4)(b) allows the receipt of testimony over the telephone at the

competency hearing: “Upon a showing by the proponent of good cause under §

807.13(2)(c), testimony may be received into the record of the hearing by telephone or live

audiovisual means.”

As to whether a defense lawyer may (or must) testify, State v. Meeks, 2003 WI 104,

263 Wis.2d 794, 666 N.W.2d 859, the Wisconsin Supreme Court held that a lawyer who

formerly represented the defendant could not testify about his or her perceptions of the

former client’s competency when competency was raised in a new prosecution. Meeks was

charged with felony murder, and his competency to stand trial was raised shortly after

initial appearance. The state introduced testimony of an attorney who had represented

Meeks on charges in earlier cases but did not represent him on the current charges. The

attorney did not testify as to any specific communications with Meeks, but the implication

of her testimony was that Meeks was competent to proceed during those earlier cases.

The court of appeals held that the testimony was appropriate because it did not divulge

the contents of any specific conversations and therefore did not violate the attorney-client

privilege. The Wisconsin Supreme Court reversed, holding that:

. . . an attorney’s opinions, perceptions, and impressions relating to a former client’s

mental competency fall with the definition of a confidential communication

pursuant to Wis. Stat. § 905.03(2) and SCR 20:1.6. As a result, such

communications may not be revealed without the consent of the client. 2003 WI

104, ¶2.

The court adopted what is characterized as the minority view on this issue and admitted

that it creates a tension with the Johnson decision. [discussed in Sec. II.A.4., above]. The

court did not overrule Johnson, pointing out that:

The attorney is merely obligated to “raise the issue [of competency] with the trial

court.” Johnson, 133 Wis.2d at 220. There is no requirement that the attorney testify

about his or her reasons for raising the issue or the opinions, perceptions, or

impressions that form the basis for his or her reason to doubt the client’s

competence. Meeks, 263 Wis.2d 794, ¶46.

In a final summary, the court restated its conclusion:

In summary, we hold that the testimony of [former defense counsel] violated the

attorney-client privilege. While the contents of confidential conversations with Meeks

were not revealed in her testimony, [former defense counsel]’s expressed opinions,

perceptions, and impressions of Meeks’ competency were premised upon and

inextricably linked to confidential communications. Confidential communications

must be interpreted to include both verbal and non-verbal communications in order to

preserve inviolate the integrity of the attorney-client relationship. Meeks, 263 Wis.2d

794, ¶58.

2. The burden of persuasion

Section 971.14(4)(b) provides as follows with respect to the standard of proof and the

allocation of the burden of persuasion on the competency/incompetency issue:

. . . . At the commencement of the hearing, the judge shall ask the defendant

whether he or she claims to be competent or incompetent. If the defendant stands

mute or claims to be incompetent the defendant shall be found to be incompetent

unless the state proves by the greater weight of the credible evidence that the

defendant is competent. If the defendant claims to be competent, the defendant

shall be found competent unless the state proves by evidence which is clear and

convincing that the defendant is incompetent.

The statute appears to comply with due process requirements for the competency

determination and commitment for treatment.5 However, a possible problem remains if the

statute is read literally: if a defendant “claims to be competent,” the burden is on the state

to prove incompetence “by evidence which is clear and convincing”; if the state fails to

meet its burden, the statute provides that “the defendant shall be found competent.”

A problem may arise in at least two ways. One is that if the defendant “claims to be

competent,” the state may well claim the defendant is competent as well, leaving neither

party with an interest in presenting the case for either competency or incompetency. A

second variation would be presented if the state does attempt to prove incompetency but

fails. In either situation, the possible problem is this: failure to prove incompetency by

clear and convincing evidence (either because no one pursues that issue or because the

standard of proof is not satisfied) does not necessarily mean that competency is established

by the greater weight of the evidence.

If it is a basic due process requirement that a person not be tried unless competency is

established by at least the greater weight of the evidence, an affirmative finding must be

made in every case where there is “reason to doubt” competency. The statute’s assertion

that “the defendant shall be found competent” in the absence of proof (to a higher degree

of certainty) that the defendant is incompetent is no substitute for a finding based on the

evidence.

As a practical matter, this should not be a serious problem, but the Committee

recommends the cautious approach of making a finding of competency, based on the

record, whenever there is “reason to doubt” competency rather than relying on the

automatic direction of the statute. In virtually every case, a record failing to show

incompetence (by clear and convincing evidence) should support an affirmative finding

that the defendant is competent (by the greater weight of the evidence). A recommended

finding is included in Sec. IV.B., below.

The approach recommended here is essentially the same as the one called for by the

ABA Criminal Justice Mental Health Standards. They call for a finding by the greater

weight of the evidence that the defendant is competent. The burden of persuasion is not

assigned to either party. If that finding is not made, the court is to consider issues of

treatment to effect competence. Involuntary commitment for treatment is to be ordered if

the basis therefor is established by clear and convincing evidence. See ABA Criminal

Justice Mental Health Standards 7 4.8(c) and 7 4.9(a) (1989).

B. If the court finds the defendant competent to proceed, the criminal

proceeding shall resume.

If the court finds the defendant competent to proceed, a specific finding should be made.

A finding like the following is recommended:

The court has considered the reports of the examiners, the conduct and demeanor of

the defendant, and all the facts and circumstances relating to the defendant’s

understanding of these proceedings. The court is satisfied by the greater weight of the

credible evidence that the defendant does not lack substantial capacity to understand

the proceeding or assist.

C. If the court finds the defendant incompetent to proceed, the court must

determine if the defendant is likely to regain competency.

If the court finds that the defendant is not competent to proceed, the court must further

determine whether the defendant is likely to become competent within the shorter of the

two time periods specified by § 971.14(5)(a):

• within 12 months, or

• within a period equal to the maximum sentence for the most serious offense

with which the defendant is charged (if that period is less than 12 months).

In practice, these limits amount to a 12 month limit for Criminal Code felonies because

the lowest felony penalty class — Class I — provides for a maximum of 1.5 years

imprisonment and 2 years of extended supervision. Most Criminal Code misdemeanors are

“Class A” and have a 9 month maximum sentence. There are some Class B and C

misdemeanors in the Criminal Code, which have 90 day and 30 day maximum penalties,

respectively.

1. Recovery of competency not likely: release of defendant

If the court determines that regaining competency within the designated time period is

not likely, § 971.14(6)(a) provides that the defendant is to be released, subject to the civil

commitment transition provision described in § 971.14(6)(b) and in Sec. VIII. B., below.

2. Recovery of competency likely: commitment of defendant

If the court determines that the defendant is likely to become competent within the

specified period, the court is to order that the proceedings be suspended and shall commit

the defendant to the custody of the department for placement in an appropriate institution.

§ 971.14(5)(a). The commitment process is addressed in the next section. The

reexamination process is described in Sec. VI.

V. Commitment as not competent to proceed – § 971.14(5)(a)

A. Basis for and terms of a commitment order.

1. Basis for commitment

Both of the following bases must exist to support a commitment:

a. The defendant lacks substantial mental capacity to understand the

proceedings or assist in his or her own defense; and

b. The defendant is likely to become competent within the commitment

period.

2. Length of commitment6

The commitment may continue until competency is regained or until the lesser of the

following limits is reached:

a. 12 months

The 12-month limit will apply to almost all cases where Criminal Code felonies are

charged because the felony class with the shortest penalty, Class I, carries a maximum

sentence of 1.5 years confinement and 2 years extended supervision.

b. The maximum sentence for the most serious offense charged

The “maximum sentence” limit will apply only to misdemeanors. Class A

misdemeanors carry a 9 month maximum sentence; Class B and C misdemeanors carry 90

day and 30 day maximums, respectively.

3. The commitment order

The commitment order should be executed completely and clearly. Use of the officially

adopted circuit court form is required. § 971.025(1). The form is CR 206 (revised

September 2022), available on the state court website: http://www.wicourts.gov/.

B. The right to refuse medication; involuntary medication orders.

The Wisconsin Supreme Court has held that all involuntarily committed persons have

the right to refuse psychotropic medication. State ex rel. Jones v. Gerhardstein, 141 Wis.2d

710, 416 N.W.2d 883 (1987). This includes persons committed under § 971.14 as not

competent to stand trial.

A finding on competence to refuse medication is to be made as part of the initial

competency evaluation if sufficient information is available to the examiner. See §

971.14(3)(dm). A similar finding is also to be made at the time the person is committed as

not competent to stand trial. See § 971.14(4)(b). If no court order regarding competence to

refuse medication was entered at the time of commitment, a procedure for returning to

court to obtain such an order is set forth in § 971.14(5)(am).

The standard for determining competence to refuse medication is set forth in §

971.14(3)(dm):

…The defendant is not competent to refuse medication or treatment if, because of

mental illness, developmental disability, alcoholism or drug dependence, and, after

the advantages and disadvantages of and alternatives to accepting the particular

medication or treatment have been explained to the defendant, one of the following

is true:

1. The defendant is incapable of expressing an understanding of the

advantages and disadvantages of accepting medication or treatment and

the alternatives.

2. The defendant is substantially incapable of applying an understanding of

the advantages, disadvantages, and alternatives to his or her mental illness,

developmental disability, alcoholism, or drug dependence in order to make

an informed choice as to whether to accept or refuse medication or

treatment.

The necessity and extent of advice on the “advantages, disadvantages and alternatives”

in a civil commitment case is discussed in Outagamie County v. Melanie L., 2013 WI 67,

349 Wis.2d 148, 833 N.W.2d 607.

It is important that hearings be held as quickly as possible so that needed treatment is

not delayed. It may help to receive testimony pursuant to the rules on conducting

proceedings by telephone or audiovisual means. (Section 971.14(5)(am) refers to the

“procedures and standards specified in [§ 971.14] sub. (4)(b).” Subsection (4)(b) includes

a provision for taking testimony by telephone.)8 The hearing may be conducted by a court

commissioner. State ex rel. Jones v. Gerhardstein, supra, 141 Wis.2d 710, 746.

Note that at any stage where a person is found not competent to refuse medication, the

effect of a court order is to authorize medication or treatment under appropriate medical

standards. (See § 971.14(4)(d).) The statute does not give the court authority to order that

specific kinds of treatment be offered.

The provisions in § 971.14 authorizing involuntary medication orders must be

implemented only after consideration of the decisions of the United States Supreme Court

in Riggins v. Nevada, 504 U.S. 127 (1992) and Sell v. United States, 539 U.S. 166 (2003),

and the Wisconsin Supreme Court in State v. Fitzgerald, 2019 WI 69, 387 Wis.2d 384,

929 N.W.2d 165.

In Riggins, the Court reversed a conviction because the state trial court failed to make

sufficient findings to support the forced administration of antipsychotic drugs during trial.

Riggins was charged with murder and robbery. He complained about hearing voices and

having trouble sleeping. The drug Mellaril was prescribed, beginning at a level of 100

milligrams per day. It was eventually increased to 800 milligrams per day. Prior to trial,

Riggins requested that the trial court order the administration of the drug suspended until

after trial. The trial court refused without an extensive statement of reasons.

The United States Supreme Court held that the involuntary administration of Mellaril

denied Riggins “a full and fair trial.” The side effects of the drugs could affect Riggins’

outward appearance, which is observed by the jury in evaluating the defendant’s demeanor.

And “. . . it is clearly possible that such side effects impacted. . . the content of his

testimony on direct or cross examination, his ability to follow the proceedings, or the

substance of his communication with counsel.” 504 U.S. 127, 137. Further, a defendant

has a liberty interest in freedom from unwanted antipsychotic drugs. The Court found the

record insufficient to support a finding that these interests were outweighed by the need to

accomplish an essential state policy, so the conviction was reversed.

The Court elaborated on Riggins in Sell. The Court held:

. . . the Constitution permits the Government involuntarily to administer

antipsychotic drugs to a mentally ill defendant facing serious criminal charges in

order to render that defendant competent to stand trial, but only if the treatment is

medically appropriate, is substantially unlikely to have side effects that may

undermine the fairness of the trial, and, taking account of less intrusive alternatives,

is necessary significantly to further important governmental trial-related interests.

539 U.S. 166, 179.

The Court emphasized that the instances where involuntary medication is permitted may

be rare. That is because the standard says or implies the following:

First, a court must find that important governmental interests are at stake. . .

Second, the court must conclude that involuntary medication will significantly

further those concomitant state interests. . .7

Third, the court must conclude that involuntary medication is necessary to further

those interests. The court must find that any alternative, less intrusive treatments

are unlikely to achieve substantially the same results.

Fourth, . . . the court must conclude that administration of the drugs is medically

appropriate, i.e., in the patient’s best medical interest in light of his medical

condition. 539 U.S. 166, 180-181 [emphasis in original].8

The question regarding medication for competency purposes was restated as follows:

Has the government, in light of the efficacy, the side effects, the possible

alternatives, and the medical appropriateness of a particular course of antipsychotic

drug treatment, shown a need for that treatment sufficiently important to overcome

the individual’s protected interest in refusing it? Id., at 183.

In Fitzgerald, the Wisconsin Supreme Court examined the constitutionality of § 971.14

as it related to the issue of ordering involuntary medication to restore a criminal defendant’s

competency to stand trial. In a unanimous decision, the Court vacated the circuit court’s

order for involuntary medication, holding that § 971.14 was unconstitutional as applied to

Fitzgerald. Therefore, regardless of the language of § 971.14(3)(dm) and (4)(b), the four

Sell factors must be satisfied before a court can issue an involuntary medication order to

restore competency to stand trial.9

Wisconsin Circuit Court form CR-206 Order for Commitment for Treatment

(Incompetency) was revised in light of Fitzgerald to accurately reflect the factors set forth

in Sell.

In State v. Scott, 2018 WI 74, 382 Wis.2d 476, 914 N.W.2d 141, the Wisconsin

Supreme Court held that a defendant committed for treatment to competency may appeal

an involuntary medication order as a matter of right under § 808.03(1) and that the order is

subject to an automatic stay pending appeal. However, the court amended that rule in State

v. Green, 2022 WI 30, 401 Wis.2d 542, 973 N.W.2d 770, and held that Scott’s automatic

stay rule does not apply to involuntary treatment orders for a person being treated to

competency before trial. Instead, the defendant may seek a discretionary stay pending

appeal under the standard in State v. Gudenschwager, 191 Wis.2d 431, 529 N.W.2d 225

(1995). 401 Wis. 2d 542, ¶¶18-36 & n.13.10

In State v. D.E.C., 2025 WI App 9, 415 Wis. 2d 161, 17 N.W.3d 67, the court clarified

that a Sell-compliant plan may list multiple first-and second-generation antipsychotics,

dosage ranges that include manufacturer maximums, and injectable formulations that are

contingent on oral refusal, so long as the plan’s flexibility is explained by testimony from

the treating psychiatrist and the three “Green minima” (drug list & ranges; maximum daily

dose; reporting interval) are on the face of the plan.11

C. Suspension of the criminal proceedings

The criminal proceedings are “suspended” during the competency commitment.

Pretrial motions under § 971.31 may be decided notwithstanding the defendant’s lack of

competency if they are “susceptible of fair determination prior to trial and without the

personal participation of the defendant.” § 971.13(3).

VI. Reexamination and Reports

A. Timing of the reports

The treatment facility is required to reexamine the defendant and report to the court at

specified intervals. Written reports are to be furnished to court three months after

commitment, six months after commitment, nine months after commitment, and within 30

days of the expiration of the commitment. § 971.14(5)(b).

B. Contents of the reports – § 971.14(5)(b)

Each report shall indicate one of the following:

1. The defendant has become competent; or

2. The defendant remains incompetent but is likely to attain competency within

the remaining commitment period; or

3. The defendant has not made such progress that attainment of competency is

likely within the remaining commitment period. A report making this

indication must include the examiner’s opinion regarding whether the

defendant is mentally ill, alcoholic, drug dependent, developmentally disabled,

or infirm because of aging or other like incapacities.12

C. Reexamination hearing; when required and how conducted

A reexamination hearing is required if the report indicates the defendant either has

regained competency or is unlikely to attain competency within the remaining commitment

period. A hearing is not required if the report indicates the defendant remains incompetent

but is likely to attain competency within the remaining commitment period. § 971.14(5)(c).

The hearing shall be held within 14 days of the receipt of the report and is subject to

the same requirements as the original commitment hearing – see § 971.14(4) and Sec. IV.,

above. The parties may waive the hearing, in which case the finding is to be based on the

report.

If the court determines the defendant is competent, the criminal proceeding shall be

resumed. If the court determines the defendant is making sufficient progress toward

becoming competent, the commitment shall continue. § 971.14(5)(c)).

VII. The Defendant Who Regains Competency

A. Competency regained

If the court determines that the defendant has become competent, the defendant is to be

discharged from the commitment, and the criminal proceedings are resumed. §

971.14(5)(c).

B. Competency dependent on medication

If medication has assisted the defendant in regaining competency, the court “may make

appropriate orders for the continued administration of the medication in order to maintain

the competence of the defendant for the duration of the proceedings.” § 971.14(5)(d). The

Committee recommends that § 971.14(5)(d) be interpreted in light of Riggins, Sell, and

Fitzgerald to require a specific finding that the need for the ordered medication outweighs

the interests of the defendant that the cases identify. See the discussion in Sec. V.B., above,

regarding orders for involuntary medication to restore competency.

C. Recommitment

If a defendant who has been restored to competency thereafter again becomes

incompetent, there may be a recommitment. § 971.14(5)(d). The court must make the

same determinations as those required for an original commitment: not competent but

likely to become competent within the commitment period.

The maximum period for a recommitment is 18 months, minus the days spent under

previous commitments, or 12 months, whichever is less. § 971.14(5)(d).

D. Sentence credit

Sentence credit under § 973.155 is due for all days spent in commitment as not

competent to proceed, whether the commitment is inpatient or outpatient. § 971.14(5)(a).3

Sentence credit is also required for all days spent during a commitment to an inpatient

facility for examination relating to competency to proceed. § 971.14(2)(a).

VIII. Competency Not Regained: Discharge from the Commitment

A. Releasing the defendant

If the court determines that it is unlikely that an incompetent defendant will become

competent within the remaining commitment period, it shall discharge the defendant from

the commitment and release him, subject to the provisions relating to transition and civil

commitment. § 971.14(6)(a). (Transition to civil commitment is discussed at Sec. B.,

below.)

1. Periodic return to court

If a defendant is released, the court may order the defendant to appear in court at

specified intervals for redetermination of competency to proceed. § 971.14(6)(a).

2. Reexamination of competency

“Counsel who have received notice under par. (c) [from custodian of incompetent

defendant who was civilly committed] or who otherwise obtain information that a

defendant discharged under par. (a) [discharge and release] may have become competent

may move the court to order that the defendant undergo a competency examination. . . .”

§ 971.14(6)(d).

This competency examination is to be conducted under § 971.14(2), the same statute

that applies to an original examination. The court may order a report under § 971.14(3) and

a hearing under § 971.14(4).

If the court determines that the defendant is competent, the criminal proceeding is

resumed.

If the court determines that the defendant is not competent, it shall release the defendant.

However, the court “may impose such reasonable nonmonetary conditions as will protect

the public and enable the court and district attorney to discover whether the person

subsequently becomes competent.” § 971.14(6)(d).

3. Status of the criminal charges

The above procedures clearly imply that the criminal charges will remain pending.

There is no authority for a trial judge to order dismissal sua sponte. State ex rel. Haskins v.

Dodge County Court, 62 Wis.2d 250, 268, 214 N.W.2d 575 (1974). Dismissal of charges

is apparently within the prosecutor’s discretion, subject to the general rules relating to

speedy trial. 62 Wis.2d 250, 267-71

B. Transition to civil commitment

One of the purposes of the changes made by § 917.14(6), was to facilitate the transition

to civil commitment for persons who had been discharged from a competency

commitment.13

1. Detention – § 971.14(6)(b)

When a defendant is discharged from a competency commitment, the court may order

that he be taken into custody and delivered to one of the following facilities:

a. A facility specified in § 51.15(2) (facilities for the emergency detention of

persons undergoing civil mental commitment).

b. An approved public treatment facility under § 51.45(2)(c) (an alcohol

treatment facility).

c. An appropriate medical or protective placement facility.

The length of the detention is governed by the statutes relating to the parallel civil

commitments: § 51.20 for civil mental commitment; § 51.45(11) for commitments for

alcohol treatment; and § 55.06(11) for protective placements.

2. Commitment “statement”

Either the district attorney or the corporation counsel may prepare the “statement” for

commitment. § 971.14(6)(b). It is to be based on the allegations of the criminal complaint

and the evidence in the case. The statement must meet the requirements for the related civil

petitions: § 51.20(1) for civil mental commitments; § 51.45(13)(a) for alcohol treatment;

and § 55.06(11) for protective placements. It need not be corroborated by others and will

be treated as the petition for commitment. All conduct “during or subsequent to the time

of the offense” may be considered in deciding whether the “recent overt acts” requirement

for civil commitment has been satisfied. See § 51.20(1)(am).

3. Filing the statement

The statement for commitment shall be given to the director of the facility to which the

defendant was delivered. It shall be “filed with the branch of circuit court assigned to

exercise criminal jurisdiction in the county in which the criminal charges are pending.” §

971.14(6)(b). However, the court may transfer the matter to the branch assigned

jurisdiction under Chapter 51.

4. If a person is committed

A person committed under this procedure is treated as though committed under § 51.20,

§ 51.45, or § 55.06, as applicable. Days spent subject to this commitment do not require

sentence credit under § 973.155. § 971.14(6)(b).

5. Notice of transfer or discharge

At least 14 days prior to transfer, discharge, or expiration of the commitment order, the

§ 51.42 or § 51.437 board must notify the court which originally discharged the person

from the competency commitment, the district attorney for the county in which that court

is located, and the person’s attorney of record. § 971.14(6)(c).

6. Subsequent competency examinations

Upon receiving the above notice or upon receiving other information that the defendant

is competent to proceed, either the district attorney or defense counsel may move the court

to order another competency examination under § 971.14(2). The procedures relating to

the original evaluation of competency apply. § 971.14(6)(d).

If the court determines that the defendant is competent, the criminal proceedings shall

be resumed. If the court determines that the defendant is not competent, it shall order

release but may impose such reasonable nonmonetary conditions as will protect the public

and enable the court and district attorney to discover whether the person subsequently

becomes competent. § 971.14(6)(d).