Current through August 26, 2024
(1) REQUIREMENT. When revocation is
initiated, a magistrate shall conduct a preliminary hearing in accordance with
this section to determine whether there is probable cause to believe that the
offender violated a rule or a condition of supervision.
(2) EXCEPTIONS. A preliminary hearing need
not be held if one of the following is true:
(a) The offender waives the right to a
preliminary hearing in writing.
(b)
The offender has given and signed a written statement which admits a
violation.
(c) There has been a
finding of probable cause in a felony matter and the offender is bound over for
trial for the same or similar conduct.
(d) There has been an adjudication of guilt
by a court for the same or similar conduct.
(e) The offender is not being held in custody
under the department's authority.
(f) There has been a finding of probable
cause for the same or similar conduct by a court or magistrate in another
state.
(3) NOTICE OF
PRELIMINARY HEARING. Written notice shall be given to the offender and either
the offender's attorney or the state public defender. The notice shall include
all of the following:
(a) The rule or
condition that the offender is alleged to have violated.
(b) A statement that the offender has a right
to a preliminary hearing to determine if there is probable cause to believe the
offender has violated a rule or condition of supervision.
(c) A statement that the offender has the
right to waive the preliminary hearing.
(d) A statement that the offender has a
qualified right to be represented by an attorney at the preliminary
hearing.
(e) A statement that the
offender or offender's attorney, if applicable, may review all relevant
evidence to be considered at the preliminary hearing, except evidence that is
determined to be confidential.
(f)
An explanation of the possible consequences of any decision.
(g) An explanation of the offender's rights
which shall include all of the following:
1.
The right to be present.
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 or supervisor shall consider factors including 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, including temporary release for work.
(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 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.
