SCOW grants review to address constitutionality of § 971.17(3)(e) and/or forfeiture arguments
State v. Desmond J. Wilhite, 2024AP2177-CR, petition for review of a published decision of the court of appeals, granted 8/18/26; case activity
SCOW grants the state’s petition in this defense win (see our post on the COA decision here), which held that Wis. Stat. § 971.17(3)(e) is facially unconstitutional to the extent that it permits a circuit court to revoke an NGI acquittee’s conditional release and to commit the acquittee to institutional care based solely on the violation of a court-ordered condition or department rule without proof of current dangerousness.
The State’s petition presents four issues for review–three related to forfeiture and preservation (or lack thereof) of the central issue, as well as the ultimate question of constitutionality decided in this case:
1. Does every facial constitutional challenge to a statute always implicate a court’s subject matter jurisdiction such that an appellant can never forfeit a facial constitutional challenge by failing to preserve it in the circuit court?
2. Did Wilhite’s noncompliance with section 971.17(7m)(a)’s requirements for preserving issues for appellate review deprive the court of appeals of competency to decide his facial constitutional challenge?
3. Did Wilhite comply with requirements under the Uniform Declaratory Judgments Act (UDJA), Wis. Stat. § 806.04(11), that he serve notice of his facial challenge to a section 971.17(3)(e)’s constitutionality on the Attorney General and Legislature?
4. Did Wilhite prove beyond a reasonable doubt that section 971.17(3)(e) was facially unconstitutional because it authorized the circuit court to revoke his conditional release based on his violation of the conditions and rules of release without finding dangerousness?
As we discussed in our post, COA held that a facial challenge to the constitutionality of a statute cannot be waived or forfeited pursuant to State v. Bush, 2005 WI 103, ¶17, 283 Wis. 2d 90, 699 N.W.2d 80. The court also rejected the state’s challenge based on Wilhite’s failure to serve his brief on the legislature by the time the state (represented by the AG’s office) filed its response brief, as the AG’s office had the opportunity to defend the statute and therefore was not prejudiced, and the statutory requirement does not contain a deadline for service.
On the constitutional challenge, COA applied Jones, Foucha and Randall, holding that the state must establish an aquittee’s dangerousness as a matter of fact after conditional release. Thus, to avoid violating due process, a circuit court may not revoke the conditional release of an acquittee without making a new finding of dangerousness.