History: 1981 c. 183
The constitutionality of this section is upheld. Demmith v. Wisconsin Judicial Conference, 166 Wis. 2d 649
, 480 N.W.2d 502
Taking of bail by law enforcement officer.
When bail has been set for a particular defendant, any law enforcement officer may take bail in accordance with s. 969.02
and release the defendant to appear in accordance with the conditions of the appearance bond. Bail shall not be required of a defendant who has been cited for commission of a misdemeanor in accordance with s. 968.085
. The law enforcement officer shall give a receipt to the defendant for the bail so taken and within a reasonable time deposit the bail with the clerk of court before whom the defendant is to appear. Bail taken by a law enforcement officer may be taken only at a sheriff's office or police station. The receipts shall be numbered serially and shall be in triplicate, one copy for the defendant, one copy to be filed with the clerk and one copy to be filed with the police or sheriff's department which takes the bail. This section does not require the release of a defendant from custody when an officer is of the opinion that the defendant is not in a fit condition to care for his or her own safety or would constitute, because of his or her physical condition, a danger to the safety of others. If a defendant is not released under this section, s. 970.01
History: 1981 c. 183
; 1983 a. 433
Officers may validly deny bail to a misdemeanant under this section. 75 Atty. Gen. 209
Law enforcement officers may be authorized by court rule to accept surety bonds for, or, under specified circumstances, 10 percent cash deposits of, the amount listed in a misdemeanor bail schedule when an accused cannot be promptly taken before a judge for bail determination. However, such rules may not afford officers discretion as to the amount or form of bail an accused individual must post. 63 Atty. Gen. 241.
Neither a county nor a county sheriff possesses statutory authority to use county funds to establish a revolving bail fund for the purpose of making loans to persons allowing them to post bail for certain kinds of offenses for which they are booked into the county jail. OAG 1-09
Grant, reduction, increase or revocation of conditions of release. 969.08(1)(1)
Upon petition by the state or the defendant, the court before which the action is pending may increase or reduce the amount of bail or may alter other conditions of release or the bail bond or grant bail if it has been previously revoked. Except as provided in sub. (5)
, a defendant for whom conditions of release are imposed and who after 72 hours from the time of initial appearance before a judge continues to be detained in custody as a result of the defendant's inability to meet the conditions of release, upon application, is entitled to have the conditions reviewed by the judge of the court before whom the action against the defendant is pending. Unless the conditions of release are amended and the defendant is thereupon released, the judge shall set forth on the record the reasons for requiring the continuation of the conditions imposed. A defendant who is ordered released on a condition which requires that he or she return to custody after specified hours, upon application, is entitled to a review by the judge of the court before whom the action is pending. Unless the requirement is removed and the defendant thereupon released on another condition, the judge shall set forth on the record the reasons for continuing the requirement.
Violation of the conditions of release or the bail bond constitutes grounds for the court to increase the amount of bail or otherwise alter the conditions of release or, if the alleged violation is the commission of a serious crime, revoke release under this section.
Reasonable notice of petition under sub. (1)
by the defendant shall be given to the state.
Reasonable notice of petition under sub. (1)
by the state shall be given to the defendant, except as provided in sub. (5)
A court shall proceed under par. (b)
if the district attorney alleges to the court and provides the court with documents as follows:
Alleges that the defendant is released on conditions for the alleged commission of a serious crime;
Alleges that the defendant has violated the conditions of release by having committed a serious crime; and
Provides a copy of the complaint charging the commission of the serious crime specified in subd. 2.
If the court determines that the state has complied with par. (a)
, the court may issue a warrant commanding any law enforcement officer to bring the defendant without unnecessary delay before the court. When the defendant is brought before the court, he or she shall be given a copy of the documents specified in par. (a)
and informed of his or her rights under s. 970.02 (1)
. The court may hold the defendant in custody and suspend the previously imposed conditions of release pending a hearing on the alleged breach. The hearing under this paragraph and the preliminary examination under s. 970.03
, if required, shall be a combined hearing, with the court making the separate findings required under this paragraph and s. 970.03
at the conclusion of the combined hearing. The hearing shall be commenced within 7 days from the date the defendant is taken into custody. The defendant may not be held without setting conditions of release for more than 7 days unless a hearing is held and the findings required by this paragraph are established.
At a hearing on the alleged violation the state has the burden of going forward and proving by clear and convincing evidence that the violation occurred while the defendant was on conditional release. The evidence shall be presented in open court with the right of confrontation, right to call witnesses, right of cross-examination and right to representation by counsel. The rules of evidence applicable in criminal trials govern the admissibility of evidence at the hearing.
Upon a finding by the court that the state has established by clear and convincing evidence that the defendant has committed a serious crime while on conditional release, the court may revoke the release of the defendant and hold the defendant for trial without setting conditions of release. No reference may be made during the trial of the offense to the court's finding in the hearing. No reference may be made in the trial to any testimony of the defendant at the hearing, except if the testimony is used for impeachment purposes. If the court does not find that the state has established by clear and convincing evidence that the defendant has committed a serious crime while on conditional release, the defendant shall be released on bail or other conditions deemed appropriate by the court.
If the release of any defendant is revoked under subd. 3.
, the defendant may demand and shall be entitled to be brought to trial on the offense with respect to which he or she was formerly released on conditions within 60 days after the date on which he or she appeared before the court under subd. 1.
If the defendant is not brought to trial within the 60-day period he or she shall not be held longer without setting conditions of release and shall be released on bail or other conditions deemed appropriate by the court. In computing the 60-day period, the court shall omit any period of delay if the court finds that the delay results from a continuance granted at the exclusive request of the defendant.
The defendant may petition the court for reinstatement of conditions of release if any of the circumstances authorizing the revocation of release is altered. The altered conditions include, but are not limited to, the facts that the original complaint is dismissed, the defendant is found not guilty of that offense or the defendant is found guilty of a crime which is not a serious crime.
If the judge before whom the action is pending, in which a person was released on conditions, is not available, any other circuit judge of the county may act under this section.
If a person is charged with the commission of a serious crime in a county other than the county in which the person was released on conditions, the district attorney and court may proceed under sub. (6)
and certify the findings to the circuit court for the county in which the person was released on conditions. That circuit court shall make the release revocation decision based on the certified findings.
Information stated in, or offered in connection with, any order entered under this chapter setting bail or other conditions of release need not conform to the rules of evidence, except as provided under sub. (5) (b) 2.
or s. 901.05
This section does not limit any other authority of a court to revoke the release of a defendant.
A person who has had bail revoked under this section is entitled to placement of his or her case on an expedited trial calendar and his or her trial shall be given priority.
“Commission of a serious crime" includes a solicitation, conspiracy or attempt, under s. 948.35
, 1999 stats., or s. 939.30
, or 939.32
, to commit a serious crime.
“Serious crime" means any crime specified in s. 943.23 (1m)
, 1999 stats., or s. 943.23 (1r)
, 1999 stats., or s. 346.62 (4)
, 940.19 (5)
, 940.195 (5)
, 940.225 (1)
, 940.295 (3) (b) 1g.
, 940.302 (2)
, 941.20 (2)
, 943.01 (2) (c)
, 943.23 (1g)
, 948.02 (1)
, or 948.30
or, if the victim is a financial institution, as defined in s. 943.80 (2)
, a crime under s. 943.84 (1)
History: 1971 c. 298
; 1977 c. 449
; 1979 c. 112
; 1981 c. 183
; 1985 a. 293
; 1987 a. 90
; 1991 a. 153
; 1993 a. 50
; 1997 a. 143
; 1999 a. 32
; 2001 a. 109
; 2005 a. 212
; 2007 a. 97
Conditions of bond. 969.09(1)(1)
If a defendant is admitted to bail before sentencing the conditions of the bond shall include, without limitation, the requirements that the defendant will appear in the court having jurisdiction on a day certain and thereafter as ordered until discharged on final order of the court and that the defendant will submit to the orders and process of the court.
If the defendant is admitted to bail upon appeal, the conditions of the bond shall be that the defendant will duly prosecute the defendant's appeal, that the defendant will appear at such time and place as the court directs, and that if the judgment is affirmed or reversed and remanded for a new trial or further proceedings upon notice after remittitur, the defendant will surrender to the sheriff of the county in which the defendant was tried.
A defendant shall receive a copy of the bond which the defendant executes pursuant to this chapter.
History: 1993 a. 486
; 1995 a. 225
A petition for a writ of habeas corpus properly named the state department with custody of probationers, rather than the sheriff, as the respondent if the petitioner was released on bail pending appeal. Dreske v. DHSS, 483 F. Supp. 783
Notice of change of address.
A person who has been released on bail or other conditions shall give written notice to the clerk of any change in his or her address within 48 hours after the change. This requirement shall be printed on all bonds.
History: 1981 c. 183
Release upon arrest in another county. 969.11(1)(1)
If the defendant is arrested in a county other than the county in which the offense was committed, he or she shall, without unreasonable delay, either be brought before a judge of the county in which arrested for the purpose of setting bail or other conditions of release or be returned to the county in which the offense was committed. The judge shall release him or her on conditions imposed in accordance with this chapter to appear before a court in the county in which the offense was committed at a specified time and place.
If the defendant is released on bail or other conditions pursuant to sub. (1)
, the judge shall make a record of the proceedings and shall certify his or her minutes thereof and shall forward the bond and bail to the court before whom the defendant is bound to appear.
History: 1981 c. 183
Every surety under this chapter, except a surety under s. 345.61
, shall be a resident of the state.
A surety under this chapter shall be a natural person, except a surety under s. 345.61
. No surety under this chapter may be compensated for acting as such a surety.
A court may require a surety to justify by sworn affidavit that the surety is worth the amount specified in the bond exclusive of property exempt from execution. The surety shall provide such evidence of financial responsibility as the judge requires. The court may at any time examine the sufficiency of the bail in such manner as it deems proper, and in all cases the state may challenge the sufficiency of the surety.
History: 1979 c. 34
; 1993 a. 486
If the conditions of the bond are not complied with, the court having jurisdiction over the defendant in the criminal action shall enter an order declaring the bail to be forfeited.
This order may be set aside upon such conditions as the court imposes if it appears that justice does not require the enforcement of the forfeiture.
By entering into a bond, the defendant and sureties submit to the jurisdiction of the court for the purposes of liability on the bond and irrevocably appoint the clerk as their agent upon whom any papers affecting their bond liability may be served. Their liability may be enforced without the necessity of an independent action.
Notice of the order of forfeiture under sub. (1)
shall be mailed forthwith by the clerk to the defendant and the defendant's sureties at their last addresses. If the defendant does not appear and surrender to the court within 30 days from the date of the forfeiture and within such period the defendant or the defendant's sureties do not satisfy the court that appearance and surrender by the defendant at the time scheduled for the defendant's appearance was impossible and without the defendant's fault, the court shall upon motion of the district attorney enter judgment for the state against the defendant and any surety for the amount of the bail and costs of the court proceeding. Proceeds of the judgment shall be paid to the county treasurer. The motion and such notice of motion as the court prescribes may be served on the clerk who shall forthwith mail copies to the defendant and the defendant's sureties at their last addresses.
A cash deposit made with the clerk pursuant to this chapter shall be applied first to the payment of any recompense determined under par. (b)
and then, if the recompense is paid in full, to the payment of costs. If any amount of such deposit remains after the payment of costs, it shall be applied to payment of the judgment of forfeiture. The person making the cash deposit shall be given written notice of the requirements of this paragraph.
The court shall determine a recompense amount for any victim, or if the victim is deceased, for his or her estate, of the crime for which the bond was entered into unless the court finds substantial reason not to do so and states the reason on the record. The court shall determine the recompense amount in the same manner as the court would have determined the restitution amount under s. 973.20 (2)
, and (7)
had the person been convicted.
The trial court abused its discretion in refusing to modify an order under sub. (2) when partial remission of a bond was appropriate. State v. Ascencio, 92 Wis. 2d 822
, 285 N.W.2d 910
(Ct. App. 1979).
Forfeiture proceedings are civil in nature; appeals are governed by s. 808.04. State v. Wickstrom, 134 Wis. 2d 158
, 396 N.W.2d 188
Sub. (1) mandates bail forfeiture for any bond condition violation. State v. Badzmierowski, 171 Wis. 2d 260
, 490 N.W.2d 784
(Ct. App. 1992).
A circuit court has discretion to enter a judgment on an order forfeiting bail absent a motion by the district attorney when the defendant appears within 30 days of the forfeiture. State v. Achterberg, 201 Wis. 2d 291
, 548 N.W.2d 515
The trial court's decision under sub. (2) requires the exercise of discretion. Refusing all requests for the return of bail money is not an exercise of discretion. The standard “that justice requires" cannot be parlayed into an all-inclusive list, but is essentially an appeal to the conscience of the court. Melone v. State, 2001 WI App 13
, 240 Wis. 2d 451
, 623 N.W.2d 179
Forfeited cash bond may not be used to pay restitution to a victim of the crime. 68 Atty. Gen. 71.
Surrender of principal by surety. 969.14(1)(1)
When the sureties desire to be discharged from the obligations of their bond, they may arrest the principal and deliver the principal to the sheriff of the county in which the action against the principal is pending.
The sureties shall, at the time of surrendering the principal, deliver to the sheriff a certified copy of the original warrant and of the order admitting the principal to bail and of the bond thereon; such delivery of these documents shall be sufficient authority for the sheriff to receive and retain the principal until the principal is otherwise bailed or discharged.
Upon the delivery of the principal as provided herein, the sureties may apply to the court for an order discharging them from liability as sureties; and upon satisfactory proof being made that this section has been complied with the court shall make an order discharging them from liability.
History: 1993 a. 486