2. The right to deny the allegation.
3. The right to present relevant evidence, including witnesses who can give relevant information regarding the violation of the rules or conditions of supervision.
4. The right to receive a written decision stating the reasons for the decision based on the evidence presented.
(4) TIME AND PLACE. The preliminary hearing shall take place as close as feasible to the area of the state in which the alleged violation occurred. It shall take place not sooner than one working day and not later than 5 working days after receipt by the offender of the notice of the preliminary hearing.
(5) QUALIFIED RIGHT TO AN ATTORNEY. If an attorney fails to appear at the preliminary hearing to represent the offender, the magistrate may either proceed with the hearing or postpone the hearing. The hearing shall be postponed to permit representation by an attorney if the offender, after being informed of his or her right to representation, requests an attorney based on a timely and plausible claim that he or she did not commit the alleged violation and the magistrate concludes either that the complexity of the issues will make it difficult for the offender to present his or her case or that the offender is otherwise not capable of speaking effectively for himself or herself.
(6) DECISION. (a) After the preliminary hearing the magistrate shall issue a written decision stating findings, conclusions and reasons for the decision. The decision shall be based on the evidence presented.
(b) The magistrate shall provide copies to the offender within a reasonable time after the preliminary hearing.
(c) If probable cause was found, the division of hearings and appeals shall be contacted in writing to request the scheduling of a final revocation hearing.
(d) If no probable cause was found the revocation process terminates without prejudice.
(7) DETENTION PENDING FINAL HEARING. (a) When there is a preliminary hearing, the magistrate shall decide if the offender is to be detained pending the outcome of the final hearing. When a preliminary hearing is not required because the case meets one of the criteria under sub. (2), a supervisor shall make the detention decision.
(b) The magistrate shall consider factors that include but are not limited to the following:
1. The offender is believed to be dangerous.
2. The offender is likely to flee.
3. The offender is likely to engage in criminal behavior before the revocation takes place.
4. The offender is likely to engage in an activity that does not comply with the rules and conditions of supervision.
5. The length of the term to be served upon revocation is great.
(c) A detained offender is not eligible for release during working hours or for any other partial release from detention.
(d) The detention decision made pursuant to par. (b) shall remain in effect until one of the following occurs:
1. The decision of the administrative law judge becomes final.
2. The offender is reinstated.
3. The violation warrant is vacated by the department.
(e) If the department requests review of the administrative law judge's decision, the custody decision made pursuant to par. (b) shall remain in effect.
(f) The secretary may alter the custody decision at any time if the public interest warrants it.
(8) REISSUANCE OF NOTICE. (a) If notice of the preliminary hearing is found to be improper and the impropriety in itself results in the dismissal of the revocation proceedings, the department may issue a proper notice and begin the proceedings again.
(b) If a magistrate decides that there is no probable cause to believe the offender committed the violation and later the department learns of additional relevant information regarding the alleged violation, revocation proceedings may be started again with issuance of a new notice for the preliminary hearing.
DOC 331.06 Final revocation hearing. A final revocation hearing of an offender's supervision shall take place in accordance with procedures set forth in ch.
HA 2.
DOC 331.07 Waived revocation hearing. (1) An offender may waive in writing the right to revocation hearing.
(2) The agent shall prepare and send the waiver and a record of documents supporting the recommendation for revocation to the secretary for decision within a reasonable period of time.
(3) The secretary shall issue a written decision to the offender, the offender's attorney, if applicable, the agent, and the supervisory staff member who recommended revocation within 10 days of receipt of the recommendation.
(4) The offender may withdraw a waiver prior to the secretary's decision if the offender establishes that it was not knowingly, voluntarily, or intelligently made.
DOC 331.08 Termination of revocation proceedings. (1) A supervisor may recommend to the regional chief that revocation proceedings be terminated at any time before the administrative law judge's decision is issued.
(2) The regional chief shall determine if there is sufficient basis for terminating the revocation proceedings.
DOC 331.09 Concurrent criminal prosecution and acquittal in criminal proceeding. Any revocation actions under this chapter may proceed regardless of any concurrent prosecution of the offender for the conduct underlying the alleged violation. An acquittal in a criminal proceeding for an offender's conduct underlying an alleged violation shall not preclude revocation of that offender's supervision for that same or similar conduct.
DOC 331.10 Records. A summary of all alleged violations, revocation actions, and proceedings under this section against an offender shall be maintained in the offender's record.
DOC 331.11 Special revocation procedures. All offenders under supervision by the department are subject to revocation under ss.
DOC 331.03 to
331.10 except for an offender committed under s.
961.47, Stats. For an offender committed under 961.47, stats, an agent shall proceed under s.
DOC 331.03 (1) and
(2) and shall, upon the approval of a supervisor, notify the committing court of the alleged violation and submit a report to the court within a reasonable time after becoming aware of the alleged violation. The court will decide if the offender shall remain on probation under s.961.47, Stats.
DOC 331.12 Harmless error. The secretary may deem a failure to comply with a requirement under this chapter as harmless error if it does not prejudice a fair proceeding or disposition.
DOC 331.13 Post revocation hearing to determine good time forfeiture, reincarceration or reconfinement time. (1) APPLICABILITY. (a) Good time forfeiture hearings apply to offenders who, before June 1, 1984, committed the crime for which they were sentenced to a period of incarceration in the Wisconsin state prison and chose not to have
1983 Wis. Act 528 apply.
(b) Reincarceration hearings apply to offenders who, between June 1, 1984, and December 30, 1999
, committed the crime for which they were sentenced to a period of incarceration in the Wisconsin state prison and to any other offender who chose to have
1983 Wis. Act 528 apply, except offenders sentenced under s.
973.01, Stats.
(c) Reconfinement hearings apply to offenders who, on or after December 31, 1999, committed the crime for which they received a bifurcated sentence under s.
973.01, Stats.
(2) HEARING. The offender is entitled to a hearing under sub. 1 (a) (b) or (c) to determine the amount of good time to be forfeited, or the amount of reincarceration or reconfinement time to be served.
(3) WAIVER. The offender may waive, in writing, the right to a hearing. The waiver may be withdrawn by the offender prior to the decision if the offender establishes that it was not knowingly, voluntarily, or intelligently made.
(4) AMOUNT OF TIME AVAILABLE. The agent shall notify the reviewing authority of the amount of good time available for forfeiture, or the amount of reincarceration or reconfinement time available.
(5) CRITERIA. (a) The agent shall recommend to the reviewing authority that a specific amount of good time be forfeited under sub. (1) (a), and whether good time should be earned upon the forfeited good time. Under sub. (1) (b) and (c), the agent shall recommend a specific period of reincarceration or reconfinement. The amount of time shall be expressed in terms of days, months or years. The agent shall include the reasons and facts consistent with the criteria listed in par. (b) that support the recommendation.
(b) The following shall be considered by the agent:
1. The nature and severity of the original offense.
2. The offender's institution conduct record.
3. The offender's conduct and behavior while on supervision.
4. The amount of time left before mandatory release if the offender is a discretionary release parolee.
5. The amount of time consistent with the goals and objectives of supervision under ch.
DOC 328.
6. The amount of time necessary to protect the public from the offender's further criminal activity, to prevent depreciation of the seriousness of the violation or to provide a confined correctional treatment setting.
7. Other mitigating or aggravating circumstances.
SECTION 2. Repeals DOC 331 appendix.
SECTION 3. Effective date: This rule shall take effect on the first day of the month following publication in the Wisconsin administrative register as provided in s.
227.22 (2) (intro), Stats.
Agency Contact Person
Questions or comments related to this rule may be sent to the following address:
Kathryn R. Anderson, Chief Legal Counsel, Department of Corrections 3099 East Washington Avenue, P.O. Box 7925, Madison, WI 53707-7925 (608) 240-5049; FAX (608) 240-3306
Kathryn.Anderson@Wisconsin.gov
Notice of Hearing
Corrections
NOTICE IS HEREBY GIVEN that pursuant to section
227.11(2), Stats., and Chapters
DOC 950 and
980, Stats., the Department of Corrections will hold public hearings to consider a proposed permanent rule revising Chapter
DOC 328, relating to offender field supervision.
Hearing Information
Date and Time:
|
Location:
|
November 30, 2010
Tuesday
10:00am
|
State Office Building
Conference Room 116
819 North 6th Street
Milwaukee, WI 53203
|
November 30, 2010
Tuesday
2:30pm
|
Dept. of Administration
St. Croix Conference Room 1st floor
101 East Wilson Street
Madison, WI 53703
|
It should be noted that the Department of Corrections will also be holding public hearings on the same date and at the same times and places to consider proposed permanent rule DOC 331, relating to the revocation of probation, parole, or extended supervision. There is a separate Notice of Hearing being published for DOC 331.
The public hearing sites are accessible to people with disabilities. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please contact Kathryn Anderson, DOC, P.O. Box 7925, Madison, WI 53707-7925, email
kathryn.anderson@wisconsin.gov, telephone (608) 240-5049 by
November 23, 2010.
Appearances at the Hearing and Submission of Written Comments
Interested persons are invited to appear at the hearing and present comments on the proposed rules. Persons making oral presentations are requested to submit their comments in writing. Written comments on the proposed rule will be accepted into the record and receive the same consideration as testimony presented at the hearing if they are received by Friday,
December 10, 2010. Written comments should be addressed to: Kathryn R. Anderson, DOC, P.O. Box 7925, Madison, WI 53707-7925, or by email
kathryn.anderson@wisconsin.gov.
Analysis Prepared by the Department of Corrections
Statutes interpreted
Sections
165.76,
301.001,
301.03,
301.45,
301.46,
302.11,
302.113,
302.114 302.14,
302.19,
302.31,
302.335,
304.06 (3),
304.072,
304.074,
304.075,
304.12,
304.13,
304.135,
304.137,
304.14,
939.615 941.29,
961.47,
971.17,
972.15,
973.01,
973.04,
973.06,
973.07,
973.08,
973.09,
973.10,
973.155,
973.20, Stats., and chapters 950 and 980, Stats.
Statutory authority
Explanation of agency authority
The Department of Corrections is responsible for the supervision in the community of persons who have been convicted of a crime and placed on probation or released from prison to parole or extended supervision.
Related statutes or rules
Chapter
DOC 331 (probation, parole, and extended supervision revocation procedure)
Plain language analysis
The rule:
1. Retitles the chapter to Community Supervision of Offenders to recognize that the division may have responsibility for supervising any person regardless of age, who is in the adult correctional system.
2. Reorganizes and renumbers the rule.
3. Updates terminology to include references to extended supervision.
4. Recognizes the department's initiatives towards reentry of inmates into the community in its purpose statement.
5. Eliminates the following definitions: absconding, administrative supervision, client, compact administrator, compact coordinator, compact specialist, field staff or staff, field supervision, high risk supervision, minimum supervision, monitoring, physical custody, referral, TIME system, and transfer.
6. Modifies the following definitions: collateral, conditions, discharge, division, extension, intoxicating substance, offender, region, regional chief, reporting, rules, supervisor, and working day.
7. Creates the following definitions: abscond, advocate, alternative to revocation, bodily harm, body contents search, commitment term or term, community supervision or supervision, contraband, deadly force, extended supervision, financial resources, force, great bodily harm, hearing examiner, incapacitating agent, nondeadly force, pat-down, personal search, school, standard business hours, supervision fees, and tolled time.
8. Updates the recitation of responsibilities of the agent and the offender during the course of community supervision.
9. Removes the rule provision which set forth the minimum contact requirements for maximum, medium, and minimum offenders and the provision for reassessment.
10. Removes the provision in this chapter which stated the possible consequences for a violation of the rules or conditions of supervision.
11.
Removes the rule provisions which addressed administrative or minimum supervision of an offender by a vendor. (Section 304.073, Stats., which provided for vendor supervision, was repealed by
2003 Wis. Act 33.)
12. Consolidates the rule provisions concerning payment of supervision fees by an offender.
13. Clarifies the provision concerning an offender's failure to pay his or her financial obligations, whether they are court ordered or a consequence of supervision.
