Chapter 302

302.113 Annotation Reconfinement under sub. (9) (am) is subject to review under s. 809.30. State v. Swiams, 2004 WI App 217, 277 Wis. 2d 400, 690 N.W.2d 452, 04-0299.

302.113 Annotation A hearing to determine the length of reconfinement under sub. (9) is akin to sentencing. Both are reviewed by appellate courts to determine whether the court erroneously exercised its discretion. State v. Brown, 2006 WI 131, 298 Wis. 2d 37, 725 N.W.2d 262, 05-0584.

302.113 Annotation While the recommendation of the Department of Corrections may be helpful and should be considered, the trial court owes no deference to the department’s sentencing recommendation after revocation of an offender’s extended supervision. The court should also consider the nature and severity of the original offense, the offender’s institutional conduct record, and the offender’s conduct and the nature of the violation of terms and conditions during extended supervision, as well as the amount of incarceration necessary to protect the public from the risk of further criminal activity. The court should impose the minimum amount of confinement consistent with the protection of the public, the gravity of the offense, and the offender’s rehabilitative needs. State v. Brown, 2006 WI 131, 298 Wis. 2d 37, 725 N.W.2d 262, 05-0584.

302.113 Annotation The Department of Corrections and the Division of Hearings and Appeals had jurisdiction to revoke extended supervision for a violation of the rules of supervision when an inmate was erroneously released to supervision while serving a bifurcated sentence and the initial term of incarceration had not been completed. State ex rel. Rupinski v. Smith, 2007 WI App 4, 297 Wis. 2d 749, 728 N.W.2d 1, 05-1760.

302.113 Annotation When a person is serving consecutive indeterminate and determinate sentences, extended supervision and parole are to be treated as one continuous period, and both may be revoked upon violation of the conditions imposed. State ex rel. Thomas v. Schwarz, 2007 WI 57, 300 Wis. 2d 381, 732 N.W.2d 1, 05-1487.

302.113 Annotation Under Brown, 2006 WI 131, the defendant has a right to allocution at a reconfinement hearing before the court pronounces its decision. State v. Hines, 2007 WI App 39, 300 Wis. 2d 485, 730 N.W.2d 434, 06-0846.

302.113 Annotation Sub. (9) (am) governs reconfinement procedure and sets forth the limits of a court’s exercisable discretion. It does not provide discretion for the court to consider eligibility for the challenge incarceration program or the earned release program under s. 973.01 (3g) and (3m). State v. Hall, 2007 WI App 168, 304 Wis. 2d 504, 737 N.W.2d 13, 06-1439.

302.113 Annotation The original sentencing transcript can be an important source of information in a reconfinement hearing and is generally readily available, but a circuit court is not required to read the original sentencing transcript in every case. Rather, the court should be familiar with the case and can gain the requisite familiarity in a number of ways that may differ from case to case. The court must decide which factors are relevant for consideration in any given case and use its discretion as to how it ascertains the information needed to consider the relevant factors. State v. Walker, 2008 WI 34, 308 Wis. 2d 666, 747 N.W.2d 673, 06-0562.

302.113 Annotation Sub. (4) and ss. 973.01 and 973.15 establish that consecutive periods of extended supervision are to be served consecutively, aggregated into one continuous period, so that revocation of extended supervision at any time allows revocation as to all consecutive sentences. State v. Collins, 2008 WI App 163, 314 Wis. 2d 653, 760 N.W.2d 438, 07-2580.

302.113 Annotation Sub. (9) (b) keeps intact the bifurcated-sentence scheme established by s. 973.01. It indubitably follows that the reconfinement court has the same authority to impose conditions of extended supervision that follows the period of reconfinement as an original sentencing court has to impose conditions on the extended supervision that follows the period of initial confinement. State v. Harris, 2008 WI App 189, 315 Wis. 2d 537, 763 N.W.2d 206, 08-0778.

302.113 Annotation When a person waives a revocation hearing, the Department of Corrections (DOC) is required by sub. (9) (at) to make a recommendation to the court concerning the period of time the person should be returned to prison. The recommendation is more appropriately analogized to a presentence investigation report (PSI) at the original sentencing than a plea agreement. The securing of a PSI is solely within the judicial function to assist the judge in selecting an appropriate sentence. DOC does not function as an agent of either the state or the defense in fulfilling its PSI role under this section, and the prosecutor is not bound by a recommendation from DOC. State v. Washington, 2009 WI App 148, 321 Wis. 2d 508, 775 N.W.2d 535, 08-2359.

302.113 Annotation There is no indication Truth-in-Sentencing altered the substantive nature of the reconfinement decision. Rather, as before Truth-in-Sentencing, the reconfinement determination is part of the revocation process and therefore not a criminal proceeding. State v. Brimer, 2010 WI App 57, 324 Wis. 2d 408, 781 N.W.2d 726, 09-0817.

302.113 Annotation There is no authority under sub. (9) (am) or elsewhere for a defendant to use the defendant’s revocation and resultant reconfinement hearing as a vehicle for reducing the overall sentence imposed. A challenge to a post-revocation sentence does not bring the original judgment of conviction before the court. State v. Harris, 2012 WI App 79, 343 Wis. 2d 479, 819 N.W.2d 350, 11-0983.

302.113 Annotation Treating all sentences as one as required by sub. (4) and s. 302.11 (3) simply means that a defendant must serve all of the defendant’s initial confinement at once and must then serve all of the extended supervision at once. State v. Polar, 2014 WI App 15, 352 Wis. 2d 452, 842 N.W.2d 531, 13-1433.

302.113 Annotation 2011 Wis. Act 38 repealed or modified former sub. (2) (b) and s. 304.06 (1) (bg) 1., 2009 stats., which afforded certain prisoners convicted of Class F to Class I felonies an opportunity to earn early release from confinement, resulting in the petitioner being required to serve the full term of the initial confinement portion of the petitioner’s sentence. Because the law in effect when the petitioner was convicted afforded the petitioner the opportunity to be released earlier and the Act 38 modifications resulted in a significant risk of prolonging the petitioner’s incarceration, the portions of Act 38 that eliminated the petitioner’s eligibility for early release under the 2009 law violated the ex post facto clauses when applied to the petitioner’s offenses. State ex rel. Singh v. Kemper, 2014 WI App 43, 353 Wis. 2d 520, 846 N.W.2d 820, 13-1724.

302.113 Annotation Affirmed in part, reversed in part. 2016 WI 67, 371 Wis. 2d 127, 883 N.W.2d 86, 13-1724.

302.113 Annotation Discussing searches under 2013 Wis. Act 79’s reasonable suspicion standard. State v. Anderson, 2019 WI 97, 389 Wis. 2d 106, 935 N.W.2d 285, 17-1104.

302.113 Annotation Wisconsin law empowers circuit courts to impose conditions of extended supervision and probation and to modify those conditions through a formal statutory process. However, actual administration of the sentence and conditions is entrusted to the Department of Corrections. In this case, the circuit court likely stepped over the line when the court imposed a condition that the defendant could not live with any women or unrelated children without the permission of the court, and the court intended to administer that condition through case-by-case oversight. State v. Williams-Holmes, 2023 WI 49, 408 Wis. 2d 1, 991 N.W.2d 373, 21-0809.

302.113 Annotation A search under sub. (7r), which requires reasonable suspicion of criminal activity or a violation of supervision, is constitutionally permissible. United States v. Caya, 956 F.3d 498 (2020).

302.113 Annotation Taking Reconfinement Hearings Seriously. Bizzaro. Wis. Law. Apr. 2007.

302.114 302.114 Petition for release and release to extended supervision for felony offenders serving life sentences.

302.114(1) (1) An inmate is subject to this section if he or she is serving a life sentence imposed under s. 973.014 (1g) (a) 1. or 2. An inmate serving a life sentence under s. 939.62 (2m) or 973.014 (1g) (a) 3. is not eligible for release to extended supervision under this section.

302.114(2) (2) Except as provided in subs. (3) and (9), an inmate subject to this section may petition the sentencing court for release to extended supervision after he or she has served 20 years, if the inmate was sentenced under s. 973.014 (1g) (a) 1., or after he or she has reached the extended supervision eligibility date set by the court, if the inmate was sentenced under s. 973.014 (1g) (a) 2.

302.114(3) (3) 

302.114(3)(a) (a) The warden or superintendent shall keep a record of the conduct of each inmate subject to this section, specifying each infraction of the rules. If any inmate subject to this section violates any regulation of the prison or refuses or neglects to perform required or assigned duties, the department may extend the extended supervision eligibility date set under s. 973.014 (1g) (a) 1. or 2., whichever is applicable, as follows:

302.114(3)(a)1. 1. Ten days for the first offense.

302.114(3)(a)2. 2. Twenty days for the 2nd offense.

302.114(3)(a)3. 3. Forty days for the 3rd or each subsequent offense.

302.114(3)(b) (b) In addition to the sanctions under par. (a), if an inmate subject to this section is placed in adjustment, program or controlled segregation status, the department may extend the extended supervision eligibility date set under s. 973.014 (1g) (a) 1. or 2., whichever is applicable, by a number of days equal to 50 percent of the number of days spent in segregation status. In administering this paragraph, the department shall use the definition of adjustment, program or controlled segregation status under departmental rules in effect at the time an inmate is placed in that status.

302.114(3)(c) (c) An inmate subject to this section who files an action or special proceeding, including a petition for a common law writ of certiorari, to which s. 807.15 applies shall have his or her extended supervision eligibility date set under s. 973.014 (1g) (a) 1. or 2., whichever is applicable, extended by the number of days specified in the court order prepared under s. 807.15 (3). Upon receiving a court order issued under s. 807.15, the department shall recalculate the date on which the inmate to whom the order applies will be entitled to petition for release to extended supervision and shall inform the inmate of that date.

302.114(4) (4) All consecutive sentences imposed for crimes committed on or after December 31, 1999, shall be computed as one continuous sentence. An inmate subject to this section shall serve any term of extended supervision after serving all terms of confinement in prison.

302.114(5) (5) 

302.114(5)(a) (a) An inmate subject to this section who is seeking release to extended supervision shall file a petition for release to extended supervision with the court that sentenced him or her. An inmate may not file an initial petition under this paragraph earlier than 90 days before his or her extended supervision eligibility date. If an inmate files an initial petition for release to extended supervision at any time earlier than 90 days before his or her extended supervision eligibility date, the court shall deny the petition without a hearing.

302.114(5)(am) (am) The inmate shall serve a copy of a petition for release to extended supervision on the district attorney’s office that prosecuted him or her, and the district attorney shall file a written response to the petition within 45 days after the date he or she receives the petition.

302.114(5)(b) (b) After reviewing a petition for release to extended supervision and the district attorney’s response to the petition, the court shall decide whether to hold a hearing on the petition or, if it does not hold a hearing, whether to grant or deny the petition without a hearing. If the court decides to hold a hearing under this paragraph, the hearing shall be before the court without a jury. The office of the district attorney that prosecuted the inmate shall represent the state at the hearing.

302.114(5)(c) (c) Before deciding whether to grant or deny the inmate’s petition, the court shall allow a victim, as defined in s. 950.02 (4), to make an oral statement or submit a written statement concerning the release of the inmate to extended supervision. The court may allow any other person to make or submit a statement under this paragraph. Any statement under this paragraph must be relevant to the release of the inmate to extended supervision and may include the use of visual aids.

302.114(5)(cm) (cm) A court may not grant an inmate’s petition for release to extended supervision unless the inmate proves, by clear and convincing evidence, that he or she is not a danger to the public.

302.114(5)(d) (d) If the court grants the inmate’s petition for release to extended supervision, the court may impose conditions on the term of extended supervision.

302.114(5)(e) (e) If the court denies the inmate’s petition for release to extended supervision, the court shall specify the date on which the inmate may file a subsequent petition under this section. An inmate may file a subsequent petition at any time on or after the date specified by the court, but if the inmate files a subsequent petition for release to extended supervision before the date specified by the court, the court may deny the petition without a hearing.

302.114(5)(f) (f) An inmate may appeal an order denying his or her petition for release to extended supervision. In an appeal under this paragraph, the appellate court may reverse an order denying a petition for release to extended supervision only if it determines that the sentencing court erroneously exercised its discretion in denying the petition for release to extended supervision.

302.114(6) (6) 

302.114(6)(a) (a) In this subsection, “victim” has the meaning given in s. 950.02 (4).

302.114(6)(b) (b) If an inmate petitions a court under sub. (5) or (9) (bm) for release to extended supervision under this section, the clerk of the circuit court in which the petition is filed shall send a copy of the petition and, if a hearing is scheduled, a notice of hearing to the victim of the crime committed by the inmate, if the victim has submitted a card under par. (e) requesting notification.

302.114(6)(c) (c) The notice under par. (b) shall inform the victim that he or she may appear at the hearing under sub. (5) or (9) (bm), if a hearing is scheduled, and shall inform the victim of the manner in which he or she may provide written statements concerning the inmate’s petition for release to extended supervision.

302.114(6)(d) (d) The clerk of the circuit court shall make a reasonable attempt to send a copy of the inmate’s petition to the last-known address of the victim within 7 days of the date on which the petition is filed and shall make a reasonable attempt to send the notice of hearing, if a hearing is scheduled, to the last-known address of the persons victim, postmarked at least 10 days before the date of the hearing.

302.114(6)(e) (e) The director of state courts shall design and prepare cards for a victim to send to the clerk of the circuit court in which the inmate is convicted and sentenced. The cards shall have space for a victim to provide his or her name and address, the name of the applicable inmate and any other information the director of state courts determines is necessary. The director of state courts shall provide the cards, without charge, to clerks of circuit court. Clerks of circuit court shall provide the cards, without charge, to victims. Victims may send completed cards to the clerk of the circuit court in which the inmate was convicted and sentenced. All court records or portions of records that relate to mailing addresses of victims are not subject to inspection or copying under s. 19.35 (1).

302.114(7) (7) Before a person is released to extended supervision under this section, the department shall notify the municipal police department and the county sheriff for the area where the person will be residing. The notification requirement does not apply if a municipal department or county sheriff submits to the department a written statement waiving the right to be notified. If applicable, the department shall also comply with s. 304.063. A municipal police department or county sheriff that receives notice under this subsection regarding a person who was convicted of a serious violent crime, as defined in s. 939.619 (1), may disseminate the information in the notice about that person to members of the general public if, in the opinion of the police chief or sheriff, providing that information is necessary to protect the public.

302.114(8) (8) Any inmate released to extended supervision under this section is subject to all conditions and rules of extended supervision. The department may set conditions of extended supervision in addition to any conditions of extended supervision required under s. 302.116, if applicable, or set by the court under sub. (5) (d) if the conditions set by the department do not conflict with the court’s conditions.

302.114(8g) (8g) A person released under this section, his or her residence, and any property under his or her control may be searched by a law enforcement officer at any time during his or her period of supervision if the officer reasonably suspects that the person is committing, is about to commit, or has committed a crime or a violation of a condition of release to extended supervision. Any search conducted pursuant to this subsection shall be conducted in a reasonable manner and may not be arbitrary, capricious, or harassing. A law enforcement officer who conducts a search pursuant to this subsection shall, as soon as practicable after the search, notify the department.

302.114(8m) (8m) 

302.114(8m)(a) (a) Every person released to extended supervision under this section remains in the legal custody of the department. If the department alleges that any condition or rule of extended supervision has been violated by the person, the department may take physical custody of the person for the investigation of the alleged violation.

302.114(8m)(b) (b) If a person released to extended supervision under this section signs a statement admitting a violation of a condition or rule of extended supervision, the department may, as a sanction for the violation, confine the person for up to 90 days in a regional detention facility or, with the approval of the sheriff, in a county jail. If the department confines the person in a county jail under this paragraph, the department shall reimburse the county for its actual costs in confining the person from the appropriations under s. 20.410 (1) (ab) and (b). Notwithstanding s. 302.43, the person is not eligible to earn good time credit on any period of confinement imposed under this subsection.

302.114(9) (9) 

302.114(9)(ag) (ag) In this subsection “reviewing authority” has the meaning given in s. 302.113 (9) (ag).

302.114(9)(am) (am) If a person released to extended supervision under this section violates a condition of extended supervision, the reviewing authority may revoke the extended supervision of the person. If the extended supervision of the person is revoked, the person shall be returned to the circuit court for the county in which the person was convicted of the offense for which he or she was on extended supervision, and the court shall order the person to be returned to prison for a specified period of time before he or she is eligible for being released again to extended supervision. The period of time specified under this paragraph may not be less than 5 years and may be extended in accordance with sub. (3).

302.114(9)(b) (b) When a person is returned to court under par. (am) after revocation of extended supervision, the reviewing authority shall make a recommendation to the court concerning the period of time for which the person should be returned to prison before being eligible for release to extended supervision. The period of time recommended under this paragraph may not be less than 5 years.

302.114(9)(bm) (bm) A person who is returned to prison under par. (am) after revocation of extended supervision may, upon petition to the sentencing court, be released to extended supervision after he or she has served the entire period of time specified by the court under par. (am), including any periods of extension imposed under sub. (3). A person may not file a petition under this paragraph earlier than 90 days before the date on which he or she is eligible to be released to extended supervision. If a person files a petition for release to extended supervision under this paragraph at any time earlier than 90 days before the date on which he or she is eligible to be released to extended supervision, the court shall deny the petition without a hearing. The procedures specified in sub. (5) (am) to (f) apply to a petition filed under this paragraph.

302.114(9)(c) (c) A person who is subsequently released to extended supervision under par. (bm) is subject to all conditions and rules under sub. (8) until the expiration of the sentence.

302.114(9)(d) (d) If a hearing is to be held under par. (am) before the division of hearings and appeals in the department of administration, the hearing examiner may order that a deposition be taken by audiovisual means and allow the use of a recorded deposition under s. 967.04 (7) to (10).

302.114(9)(e) (e) A reviewing authority may consolidate proceedings before it under par. (am) with other proceedings before that reviewing authority under par. (am) or s. 302.11 (7) (am) or 302.113 (9) (am) if all of the proceedings relate to the parole or extended supervision of the same person.

302.114(9)(f) (f) In any case in which there is a hearing before the division of hearings and appeals in the department of administration concerning whether to revoke a person’s extended supervision, the person on extended supervision may seek review of a decision to revoke extended supervision and the department of corrections may seek review of a decision to not revoke extended supervision. Review of a decision under this paragraph may be sought only by an action for certiorari.

302.114(10) (10) The department may promulgate rules establishing guidelines and criteria for the exercise of discretion under this section.

302.114 History History: 1997 a. 283; 2001 a. 16, 109; 2005 a. 42; 2009 a. 28; 2011 a. 38; 2013 a. 79; 2023 a. 230.

302.114 Annotation Discussing searches under 2013 Wis. Act 79’s reasonable suspicion standard. State v. Anderson, 2019 WI 97, 389 Wis. 2d 106, 935 N.W.2d 285, 17-1104.

302.116 302.116 Extended supervision conditions for sex offenders.

302.116(1) (1) In this section:

302.116(1)(a) (a) “Serious sex offense” means a violation of s. 940.225 (1) or (2), 948.02 (1) or (2), 948.025, 948.06, or 948.07 or a solicitation, conspiracy, or attempt to commit a violation of s. 940.225 (1) or (2), 948.02 (1) or (2), 948.025, 948.06, 948.07, or 948.085.

302.116(1)(b) (b) “Sex offender” means a person serving a sentence for a serious sex offense.

302.116(2) (2) As a condition of extended supervision, a sex offender shall live in a residence that the department has approved.

302.116 History History: 2001 a. 16; 2005 a. 277.

302.117 302.117 Notice regarding ineligibility to vote. When an inmate who is disqualified from voting under s. 6.03 (1) (b) is released to parole or extended supervision, the department shall inform the person in writing that he or she may not vote in any election until his or her civil rights are restored. The department shall use the form designed under s. 301.03 (3a) to inform the person, and the person and a witness shall sign the form.

302.117 History History: 2003 a. 121; 2005 a. 451.

302.12 302.12 Reward of merit.

302.12(1) (1) The department may provide by rule for the payment of money to inmates. The rate may vary for different prisoners in accordance with the pecuniary value of the work performed, willingness, and good behavior. The payment of money to inmates working in the prison industries shall be governed by s. 303.01 (4).

302.12(2) (2) Money accruing under this section remains under the control of the department, to be used for the crime victim and witness assistance surcharge under s. 973.045 (4), the deoxyribonucleic acid analysis surcharge under s. 973.046 (1r), the drug offender diversion surcharge under s. 973.043, and the benefit of the inmate or the inmate’s family or dependents, under rules promulgated by the department as to time, manner and amount of disbursements. The rules shall provide that the money be used for the reasonable support of the inmate’s family or dependents before it is allocated for the drug offender diversion surcharge.

302.12 History History: 1975 c. 396; 1983 a. 27, 66, 528; 1985 a. 332 s. 251 (6); 1989 a. 31 s. 1631; Stats. 1989 s. 302.12; 1993 a. 16; 2005 a. 25; 2013 a. 20.

302.12 Cross-reference Cross-reference: See also ch. DOC 309, Wis. adm. code.

302.13 302.13 Preservation of property an inmate brings to prison. The department shall preserve money and effects, except clothes, in the possession of an inmate when admitted to the prison and, subject to the crime victim and witness assistance surcharge under s. 973.045 (4), the deoxyribonucleic acid analysis surcharge under s. 973.046 (1r), the child pornography surcharge under s. 973.042, the drug offender diversion surcharge under s. 973.043, and victim restitution under s. 973.20 (11) (c) shall restore the money and effects to the inmate when discharged.

302.13 History History: 1973 c. 90; 1983 a. 27; 1985 a. 120; 1989 a. 31 s. 1632; Stats. 1989 s. 302.13; 1993 a. 16; 2005 a. 25, 433; 2013 a. 20; 2015 a. 355.

302.14 302.14 Property of deceased inmates, parolees, probationers or persons on extended supervision, disposition. When an inmate of a prison, a parolee of an institution, a person on extended supervision or a person on probation to the department dies leaving an estate, after paying all costs and obligations under ss. 301.32 and 301.325, of $150 or less in the trust of the warden, superintendent or secretary, the warden, superintendent or secretary shall try to determine whether or not the estate is to be probated. If probate proceedings are not commenced within 90 days, the warden, superintendent or secretary shall turn over the money or securities to the nearest of kin as evidenced by the records of the institution and the department.

302.14 History History: 1989 a. 31 s. 1633; Stats. 1989 s. 302.14; 1997 a. 283; 2017 a. 246.

302.15 302.15 Activities off grounds. The wardens and superintendents of the state prisons, and all wardens and superintendents of county prisons, jails, camps and houses of correction enumerated in ch. 303, may take inmates away from the institution grounds for rehabilitative and educational activities approved by the department and under such supervision as the superintendent or warden deems necessary. While away from the institution grounds an inmate is deemed to be under the care and control of the institution in which he or she is an inmate and subject to its rules and discipline.

302.15 History History: 1971 c. 54; 1989 a. 31 s. 1634; Stats. 1989 s. 302.15.

302.15 Cross-reference Cross-reference: See also s. DOC 325.02, Wis. adm. code.

302.17 302.17 Register of inmates.

302.17(1) (1) When any inmate is received into any state penal institution the department shall register the date of admission, the name, age, nativity and nationality and such other facts as may be obtained as to parentage, education and previous history and environments of such inmate.

302.17(2) (2) The department shall make entries on the register to reflect the progress made by each inmate while incarcerated and the inmate’s release on parole or extended supervision, condition at the time of release on parole or extended supervision and progress made while on parole or extended supervision.

302.17 History History: 1987 a. 27, 403; 1989 a. 31 s. 1635; Stats. 1989 s. 302.17; 1997 a. 283; 2013 a. 334.

302.18 302.18 Transfers of inmates.