In re Detention of Aqui
In In re Detention of Aqui, 84 Wn. App. 88, 929 P.2d 436 (1996), a petition to commit Aqui as a sexually violent predator was filed while he was incarcerated.
However, the trial court found chapter 71.09 RCW unconstitutional and ordered Aqui's release. Aqui, 84 Wn. App. at 96. This court stayed the release order and later reversed the trial court. Aqui, 84 Wn. App. at 97.
The end result was that Aqui was released into the community for three weeks, then returned to custody. Aqui argued "because he was released, the State had the same opportunity to prove a recent overt act as if he had been out of custody when the petition was filed and thus was required to do so." Aqui, 84 Wn. App. at 96.
The Court of Appeals disagreed, although it did not foreclose the validity of this argument in future cases:
"We restrict our holding to the peculiar facts presented in this case. Thus, we reject the State's argument that it was excused from proving a recent overt act solely because of the brevity of Aqui's release. Due process requires the State to prove a recent overt act if a person is released to the community before the petition is filed. On these unique facts we need not reach the question of whether due process requires an overt act when the petition is filed before release but it is not acted upon in a timely manner such that a person does spend a significant amount of time released to the community. Aqui, 84 Wn. App. at 97.