DOC 331.04 History
History: CR 10-125: cr. Register June 2013 No. 690, eff. 7-1-13. DOC 331.05(1)
(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.
DOC 331.05(2)
(2) Exceptions. A preliminary hearing need not be held if one of the following is true:
DOC 331.05(2)(a)
(a) The offender waives the right to a preliminary hearing in writing.
DOC 331.05(2)(b)
(b) The offender has given and signed a written statement which admits a violation.
DOC 331.05(2)(c)
(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.
DOC 331.05(2)(d)
(d) There has been an adjudication of guilt by a court for the same or similar conduct.
DOC 331.05(2)(e)
(e) The offender is not being held in custody under the department's authority.
DOC 331.05(2)(f)
(f) There has been a finding of probable cause for the same or similar conduct by a court or magistrate in another state.
DOC 331.05(3)
(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:
DOC 331.05(3)(a)
(a) The rule or condition that the offender is alleged to have violated.
DOC 331.05(3)(b)
(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.
DOC 331.05(3)(c)
(c) A statement that the offender has the right to waive the preliminary hearing.
DOC 331.05(3)(d)
(d) A statement that the offender has a qualified right to be represented by an attorney at the preliminary hearing.
DOC 331.05(3)(e)
(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.
DOC 331.05(3)(f)
(f) An explanation of the possible consequences of any decision.
DOC 331.05(3)(g)
(g) An explanation of the offender's rights which shall include all of the following:
DOC 331.05(3)(g)3.
3. The right to present relevant evidence, including witnesses who can give relevant information regarding the violation of the rules or conditions of supervision.
DOC 331.05(3)(g)4.
4. The right to receive a written decision stating the reasons for the decision based on the evidence presented.
DOC 331.05(4)
(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.
DOC 331.05(5)
(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.
DOC 331.05(6)(a)(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.
DOC 331.05(6)(b)
(b) The magistrate shall provide copies to the offender within a reasonable time after the preliminary hearing.
DOC 331.05(6)(c)
(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.
DOC 331.05(6)(d)
(d) If no probable cause was found the revocation process terminates without prejudice.
DOC 331.05(7)(a)(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.
DOC 331.05(7)(b)
(b) The magistrate or supervisor shall consider factors including the following:
DOC 331.05(7)(b)3.
3. The offender is likely to engage in criminal behavior before the revocation takes place.
DOC 331.05(7)(b)4.
4. The offender is likely to engage in an activity that does not comply with the rules and conditions of supervision.
DOC 331.05(7)(c)
(c) A detained offender is not eligible for release, including temporary release for work.
DOC 331.05(7)(d)
(d) The detention decision made pursuant to
par. (b) shall remain in effect until one of the following occurs:
DOC 331.05(7)(e)
(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.
DOC 331.05(7)(f)
(f) The secretary may alter the custody decision at any time if the public interest warrants it.
DOC 331.05(8)(a)(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.
DOC 331.05(8)(b)
(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.
DOC 331.05 History
History: CR 10-125: cr. Register June 2013 No. 690, eff. 7-1-13. DOC 331.06
DOC 331.06
Final revocation hearing. A final revocation hearing of an offender's supervision shall take place in accordance with procedures set forth in
ch. HA 2.
DOC 331.06 History
History: CR 10-125: cr. Register June 2013 No. 690, eff. 7-1-13. DOC 331.07(1)
(1) An offender may waive in writing the right to revocation hearing.
DOC 331.07(2)
(2) The agent shall prepare and send the waiver and a record of documents supporting the recommendation for revocation to the secretary for decision within a reasonable period of time.
DOC 331.07(3)
(3) The secretary shall issue a written decision to the offender, the offender's attorney, if applicable, the agent, and the supervisory staff member who recommended revocation within 10 days of receipt of the recommendation.
DOC 331.07(4)
(4) The offender may withdraw a waiver prior to the secretary's decision if the offender establishes that it was not knowingly, voluntarily, or intelligently made.
DOC 331.07 History
History: CR 10-125: cr. Register June 2013 No. 690, eff. 7-1-13. DOC 331.08
DOC 331.08
Termination of revocation proceedings. DOC 331.08(1)(1) A supervisor may recommend to the regional chief that revocation proceedings be terminated at any time before the administrative law judge issues a decision.
DOC 331.08(2)
(2) The regional chief shall determine if there is sufficient basis for terminating the revocation proceedings.
DOC 331.08 History
History: CR 10-125: cr. Register June 2013 No. 690, eff. 7-1-13. DOC 331.09
DOC 331.09
Concurrent criminal prosecution and acquittal in criminal proceeding. Any revocation action under this chapter may proceed regardless of a concurrent prosecution of the offender for the conduct underlying the alleged violation. An acquittal in a criminal proceeding for an offender's conduct underlying an alleged violation shall not preclude revocation of that offender's supervision for the same or similar conduct.
DOC 331.09 History
History: CR 10-125: cr. Register June 2013 No. 690, eff. 7-1-13. DOC 331.10
DOC 331.10
Records. A summary of all alleged violations, revocation actions, and proceedings under this section against an offender shall be maintained in the offender's record.
DOC 331.10 History
History: CR 10-125: cr. Register June 2013 No. 690, eff. 7-1-13. DOC 331.11
DOC 331.11
Special revocation procedures. All offenders under supervision by the department are subject to revocation under
ss. DOC 331.03 to
331.10, except for an offender committed under s.
961.47, Stats. For an offender committed under s.
961.47, Stats., an agent shall proceed under
s. DOC 331.03 (1) and
(2) and shall, upon the approval of a supervisor, notify the committing court of the alleged violation and submit a report to the court within a reasonable time after becoming aware of the alleged violation. The court shall decide if the offender shall remain on probation under s.
961.47, Stats.
DOC 331.11 History
History: CR 10-125: cr. Register June 2013 No. 690, eff. 7-1-13. DOC 331.12
DOC 331.12
Harmless error. The secretary may deem a failure to comply with a requirement under this chapter as harmless error if it does not prejudice a fair proceeding or disposition.
DOC 331.12 History
History: CR 10-125: cr. Register June 2013 No. 690, eff. 7-1-13. DOC 331.13
DOC 331.13
Post revocation hearing to determine good time forfeiture, reincarceration, or reconfinement time. DOC 331.13(1)(a)(a) Good time forfeiture hearings apply to offenders who, before June 1, 1984, committed the crime for which they were sentenced to a period of incarceration in the Wisconsin state prison and chose not to have
1983 Wis. Act 528 apply.
DOC 331.13(1)(b)
(b) Reincarceration hearings apply to offenders who, between June 1, 1984, and December 30, 1999, committed the crime for which they were sentenced to a period of incarceration in the Wisconsin state prison and to any other offender who chose to have
1983 Wis. Act 528 apply, except offenders sentenced under s.
973.01, Stats.
DOC 331.13(1)(c)
(c) Reconfinement hearings apply to offenders who, on or after December 31, 1999, committed the crime for which they received a bifurcated sentence under s.
973.01, Stats.
DOC 331.13(2)
(2) Hearing. The offender is entitled to a hearing under
sub. (1) (a),
(b), or
(c) to determine the amount of good time to be forfeited, or the amount of reincarceration or reconfinement time to be served.
DOC 331.13(3)
(3) Waiver. The
offender may waive, in writing, the right to a hearing. The waiver may be withdrawn by the offender prior to the decision if the offender establishes that it was not knowingly, voluntarily, or intelligently made.
DOC 331.13(4)
(4) Amount of time available. The agent shall notify the reviewing authority
of the amount of good time available for forfeiture, or the amount of reincarceration or reconfinement time available.
DOC 331.13(5)(a)(a) For a proceeding under
sub. (1) (a), the agent shall recommend to the reviewing authority that a specific amount of good time be forfeited and whether good time should be earned upon the forfeited good time. For a proceeding under
sub. (1) (b) or
(c), the agent shall recommend a specific period of reincarceration or reconfinement. The amount of time may be expressed only in terms of years, months, and days. The agent shall include the reasons and facts consistent with the criteria listed in
par. (b) that support the recommendation.
DOC 331.13(5)(b)
(b) In making a recommendation, the agent shall consider all of the following:
DOC 331.13(5)(b)4.
4. The amount of time left before mandatory release if the offender is a discretionary release parolee.
DOC 331.13(5)(b)6.
6. The amount of time necessary to protect the public from the offender's further criminal activity, to prevent depreciation of the seriousness of the violation or to provide a confined correctional treatment setting.
DOC 331.13 History
History: CR 10-125: cr. Register June 2013 No. 690, eff. 7-1-13.
