(1972)

PATRICK J. LUCEY, Governor of Wisconsin

You have requested my opinion whether sec. 971.17, Stats. (1969), or sec. 957.11, Stats. (1967), controls the release of a person acquitted of criminal charges by reason of insanity prior to July 1, 1970.

It is not the time of the commitment which determines this question but the time the criminal action was commenced.

Section 971.17, Stats. (1969), is a part of the new Criminal Procedure Code, Title XLVII of the Statutes. Section 967.01, Stats., provides:

"967.01. Title and effective date. Title XLVII may be cited as the criminal procedure code and shall be interpreted as a unit. This code shall govern all criminal proceedings and is effective on July 1, 1970. It applies in all prosecutions commenced on or after that date. Prosecutions commenced prior to July 1, 1970,shall be governed by the law existing prior thereto."

Under the new procedure code, the action is commenced when the complaint is filed with a judge, as provided in sec. 968.02 (2), Stats. (1969).

Therefore, the answer to your question is that, if the prosecution was commenced by the filing of a complaint on or after July 1, 1970, the test to be applied in determining whether the patient should be released from the mental hospital is sec.971.17, Stats. (1969). If the action was commenced before that date, the test to be applied is that stated in sec. 957.11, Stats. (1967).

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