Chapter 304

304.06 Annotation Refusal by the parole board to grant discretionary parole is subject to judicial review. Failure to notify the prisoner of the standards and criteria applied to a parole application constituted a denial of due process. State ex rel. Tyznik v. DHSS, 71 Wis. 2d 169, 238 N.W.2d 66 (1976).

304.06 Annotation Every violation of probation or parole does not result in automatic revocation. Snajder v. State, 74 Wis. 2d 303, 246 N.W.2d 665 (1976).

304.06 Annotation A parole revocation hearing is not part of a criminal prosecution. Thus the full panoply of rights, including Miranda, 384 U.S. 436 (1966), warnings and the exclusionary rule, are not applicable. State ex rel. Struzik v. DHSS, 77 Wis. 2d 216, 252 N.W.2d 660 (1977).

304.06 Annotation Neither the double jeopardy clause nor the doctrine of collateral estoppel precludes parole revocation on the grounds that the parolee’s conduct related to an alleged crime for which the parolee was charged and acquitted. State ex rel. Flowers v. DHSS, 81 Wis. 2d 376, 260 N.W.2d 727 (1978).

304.06 Annotation Presentence incarceration due to indigency must be credited to a life sentence for the purpose of determining eligibility for parole. Wilson v. State, 82 Wis. 2d 657, 264 N.W.2d 234 (1978).

304.06 Annotation A parole agent’s failure to act on knowledge of similar prior violations did not preclude revocation. Van Ermen v. DHSS, 84 Wis. 2d 57, 267 N.W.2d 17 (1978).

304.06 Annotation Due process rights given to individuals facing parole revocation by Morrissey, 408 U.S. 471 (1972), and Gagnon, 411 U.S. 778 (1973), are required before a parole, granted but not yet executed, may be rescinded. This protection extends to the determination of the factual basis for rescission and, when the factual basis is misconduct, this protection includes the opportunity to present to the parole board evidence in justification or mitigation of the misconduct that may make rescission inappropriate. State ex rel. Klinke v. DHSS, 87 Wis. 2d 110, 273 N.W.2d 379 (Ct. App. 1978).

304.06 Annotation The secretary’s authority to revoke under s. 57.06 (3) [now sub. (3)] cannot be bound by an agent’s representations. State ex rel. Lewis v. DHSS, 89 Wis. 2d 220, 278 N.W.2d 232 (Ct. App. 1979).

304.06 Annotation A parole violation may not be proved entirely by unsubstantiated hearsay testimony. State ex rel. Henschel v. DHSS, 91 Wis. 2d 268, 282 N.W.2d 618 (Ct. App. 1979).

304.06 Annotation Equal protection does not require symmetry in probation and parole systems. State v. Aderhold, 91 Wis. 2d 306, 284 N.W.2d 108 (Ct. App. 1979).

304.06 Annotation A probationer’s due process right to prompt revocation proceedings was not triggered when the probationer was detained as a result of unrelated criminal proceedings. State ex rel. Alvarez v. Lotter, 91 Wis. 2d 329, 283 N.W.2d 408 (Ct. App. 1979).

304.06 Annotation An inmate who entered into a Mutual Agreement Program (MAP) “contract” for discretionary parole may not bring a civil action for breach of contract. Coleman v. Percy, 96 Wis. 2d 578, 292 N.W.2d 615 (1980).

304.06 Annotation A mandatory release parole violator may be required to serve beyond the final discharge date originally set by the trial court. State ex rel. Bieser v. Percy, 97 Wis. 2d 702, 295 N.W.2d 179 (Ct. App. 1980).

304.06 Annotation Because courts have exclusive criminal jurisdiction, criminal charges against a defendant were not collaterally estopped even though a parole revocation hearing examiner concluded that the defendant’s acts did not merit parole revocation. State v. Spanbauer, 108 Wis. 2d 548, 322 N.W.2d 511 (Ct. App. 1982).

304.06 Annotation Due process was not violated by holding two revocation hearings dealing with the same conduct when the first hearing was based on facts and the second hearing was based on a conviction. State ex rel. Leroy v. DHSS, 110 Wis. 2d 291, 329 N.W.2d 229 (Ct. App. 1982).

304.06 Annotation The doctrine of issue preclusion should not be applied to findings in parole and probation revocation hearings to prevent criminal prosecutions on the same issue. State v. Terry, 2000 WI App 250, 239 Wis. 2d 519, 620 N.W.2d 217, 99-2150.

304.06 Annotation Sub. (3) does not provide authority to the Department of Corrections to make and enforce rules binding on the Division of Hearings and Appeals regarding the revocation of parole or period of reincarceration in contested cases. The decision to impose reincarceration time is solely that of the division, and a department manual has no binding effect upon it. George v. Schwarz, 2001 WI App 72, 242 Wis. 2d 450, 626 N.W.2d 57, 00-2711.

304.06 Annotation Sub. (1m) permits the waiver of the minimum sentence service requirement if certain conditions are met. Such a determination removes the parole eligibility conditions that would otherwise apply under sub. (1) (b), but it does not eliminate the necessity for a parole hearing. While the grant of parole might logically follow from a determination of extraordinary circumstances, the statute does not dictate that result. State ex rel. Szymanski v. Gamble, 2001 WI App 118, 244 Wis. 2d 272, 630 N.W.2d 570, 00-2272.

304.06 Annotation A rule that inmates must always be released from physical custody before any revocation is commenced would elevate form over substance. When inmates violate probation terms immediately and simultaneously with their scheduled mandatory release dates, the Department of Corrections may maintain continuous custody, even though that person’s status changes from a prisoner serving a sentence to a parolee detained on a parole hold. State ex rel. Riesch v. Schwarz, 2005 WI 11, 278 Wis. 2d 24, 692 N.W.2d 219, 03-0920.

304.06 Annotation 2011 Wis. Act 38 repealed or modified ss. 302.113 (2) (b) and 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 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 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.

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

304.06 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.

304.06 Annotation When required by the right to effectively present a defense, the state must issue, and for an indigent pay the costs of, compulsory process to obtain the attendance of witnesses on behalf of probationers and parolees at revocation proceedings. 63 Atty. Gen. 176.

304.06 Annotation When a probationer or parolee is charged with a crime and may have otherwise violated conditions of release, revocation hearings based on the non-criminal violations should be held without delay. 65 Atty. Gen. 20.

304.06 Annotation A convict has no constitutional right to be paroled. Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979).

304.06 Annotation A state administrative rule imposing an absolute bar on international travel by parolees is constitutional. Williams v. State, 336 F.3d 576 (2003).

304.06 Annotation With respect to juvenile offenders convicted of crimes other than homicide, Graham, 560 U.S. 48 (2010), suggests that there is a point when the 8th amendment to the U.S. Constitution prohibits parole officials from refusing to grant parole solely based on the seriousness of the offense. However, nothing in Graham prohibits the Wisconsin Parole Commission from considering the seriousness of the offense and the consequences to the victims in making parole decisions. Heredia v. Blythe, 638 F. Supp. 3d 984 (2022).

304.06 Annotation Constitutional Law—Due Process—Criminal Law—Probation and Parole Revocation in Wisconsin. Fisher. 1977 WLR 503.

304.062 304.062 Ordering parolees and persons on extended supervision to perform community service work.

304.062(1) (1) The department may order that a parolee or a person on extended supervision perform community service work for a public agency or a nonprofit charitable organization. An order may apply only if agreed to by the parolee or the person on extended supervision and the organization or agency. The department shall ensure that the parolee or the person on extended supervision is provided a written statement of the terms of the community service order and shall monitor the compliance of the parolee or person on extended supervision with the community service order.

304.062(2) (2) Any organization or agency acting in good faith to which a parolee or person on extended supervision is assigned under an order under this section has immunity from any civil liability in excess of $25,000 for acts or omissions by or impacting on the parolee or person on extended supervision. The department has immunity from any civil liability for acts or omissions by or impacting on the parolee or person on extended supervision regarding the assignment under this section.

304.062 History History: 1995 a. 96; 1997 a. 283.

304.063 304.063 Notification prior to release on extended supervision or parole.

304.063(1) (1) In this section:

304.063(1)(a) (a) “Member of the family” means spouse, child, sibling, parent or legal guardian.

304.063(1)(b) (b) “Victim” means a person against whom a crime has been committed.

304.063(2) (2) Before a prisoner is released on parole under s. 302.11, 304.02 or 304.06 or on extended supervision under s. 302.113 or 302.114, if applicable, for a violation of s. 940.01, 940.03, 940.05, 940.225 (1) or (2), 948.02 (1) or (2), 948.025, 948.06, 948.07, or 948.085, the department shall make a reasonable attempt to notify all of the following persons, if they can be found, in accordance with sub. (3) and after receiving a completed card under sub. (4):

304.063(2)(a) (a) The victim of the crime committed by the prisoner or, if the victim died as a result of the crime, an adult member of the victim’s family and any member of the victim’s family who was younger than 18 years old at the time the crime was committed but is now 18 years old or older or, if the victim is younger than 18 years old, the victim’s parent or legal guardian.

304.063(2)(b) (b) Any witness who testified against the prisoner in any court proceeding involving the offense.

304.063(3) (3) The department shall make a reasonable attempt to send the notice, postmarked at least 30 days before a prisoner is released on parole or extended supervision, to the last-known address of the persons under sub. (2).

304.063(4) (4) The department shall design and prepare cards for any person specified in sub. (2) to send to the department. The cards shall have space for any such person to provide his or her name and address, the name of the applicable prisoner and any other information the department determines is necessary. The department shall provide the cards, without charge, to district attorneys. District attorneys shall provide the cards, without charge, to persons specified in sub. (2). These persons may send completed cards to the department. All department records or portions of records that relate to mailing addresses of these persons are not subject to inspection or copying under s. 19.35 (1).

304.063 History History: 1993 a. 97, 227, 479, 491; 1997 a. 181, 283; 2005 a. 277; 2023 a. 31, 230.

304.065 304.065 Offender release information. The department shall obtain computer software and use the software to provide local law enforcement agencies with information regarding offenders who have been released to or placed in the agencies’ jurisdictions.

304.065 History History: 1993 a. 98.

304.071 304.071 Military parole.

304.071(1) (1) The parole commission may at any time grant a parole to any prisoner in any penal institution of this state, or the department may at any time suspend the supervision of any person who is on probation or parole to the department, if the prisoner or person on probation or parole is eligible for induction into the U.S. armed forces. The suspension of parole or probation shall be for the duration of his or her service in the armed forces; and the parole or probation shall again become effective upon his or her discharge from the armed forces in accordance with regulations prescribed by the department. If he or she receives an honorable discharge from the armed forces, the governor may discharge him or her and the discharge has the effect of a pardon. Upon the suspension of parole or probation by the department, the department shall issue an order setting forth the conditions under which the parole or probation is suspended, including instructions as to where and when and to whom the person on parole shall report upon discharge from the armed forces.

304.071(2) (2) If a prisoner is not eligible for parole under s. 961.49 (2), 1999 stats., or s. 939.62 (2m) (c), 973.01 (6), 973.014 (1) (c) or (1g) or 973.032 (5), he or she is not eligible for parole under this section.

304.071 History History: 1989 a. 31 ss. 1702, 1703; Stats. 1989 s. 304.071; 1991 a. 39; 1993 a. 289; 1995 a. 48, 448; 1997 a. 283, 326; 1999 a. 32; 2001 a. 109; 2009 a. 28; 2011 a. 38.

304.072 304.072 Period of probation, extended supervision or parole tolled.

304.072(1) (1) If the department of corrections in the case of a parolee, probationer or person on extended supervision who is reinstated or waives a hearing or the division of hearings and appeals in the department of administration in the case of a hearing determines that a parolee, probationer or person on extended supervision has violated the terms of his or her supervision, the department or division may toll all or any part of the period of time between the date of the violation and the date an order of revocation or reinstatement is entered, subject to credit according to the terms of s. 973.155 for any time the parolee, probationer or person on extended supervision spent confined in connection with the violation.

304.072(2) (2) If a parolee, probationer or person on extended supervision is alleged to have violated the terms of his or her supervision but the department or division determines that the alleged violation was not proven, the period between the alleged violation and the determination shall be treated as service of the probationary, extended supervision or parole period.

304.072(3) (3) Except as provided in s. 973.09 (3) (b), the department preserves jurisdiction over a probationer, parolee or person on extended supervision if it commences an investigation, issues a violation report or issues an apprehension request concerning an alleged violation prior to the expiration of the probationer’s, parolee’s or person’s term of supervision.

304.072(4) (4) The sentence of a revoked parolee or person on extended supervision resumes running on the day he or she is received at a correctional institution subject to sentence credit for the period of custody in a jail, correctional institution or any other detention facility pending revocation according to the terms of s. 973.155.

304.072(5) (5) The sentence of a revoked probationer shall be credited with the period of custody in a jail, correctional institution or any other detention facility pending revocation and commencement of sentence according to the terms of s. 973.155.

304.072 History History: 1975 c. 41, 199; 1977 c. 353; 1983 a. 528; 1989 a. 31 s. 1704; Stats. 1989 s. 304.072; 1989 a. 107; 1997 a. 283.

304.072 Cross-reference Cross-reference: See also s. DOC 331.01, Wis. adm. code.

304.072 Annotation The court could revoke a probation after the original probationary period had expired but the defendant had committed several crimes during the period. Williams v. State, 50 Wis. 2d 709, 184 N.W.2d 844 (1971).

304.072 Annotation Before the tolling statute applies, the Department of Health and Social Services must make a final determination that a violation occurred. Locklear v. State, 87 Wis. 2d 392, 274 N.W.2d 898 (Ct. App. 1978).

304.072 Annotation When revocation proceedings were initiated prior to expiration of the parole period, parole was properly revoked after the period expired. State ex rel. Avery v. Percy, 99 Wis. 2d 459, 299 N.W.2d 886 (Ct. App. 1980).

304.072 Annotation The department may not grant jail credit when it is not provided for by statute. 71 Atty. Gen. 102.

304.072 Note NOTE: The above annotations relate to s. 57.072 [now this section], which was repealed and recreated by ch. 353, laws of 1977 and again by Act 528, laws of 1983.

304.072 Annotation Sub. (3) applies to all parole violations that occur before an offender’s date of discharge from the offender’s entire sentence. The Department of Corrections had jurisdiction to revoke a second period of parole for a violation that the defendant committed during the first, and later revoked, period of parole when the violation was not discovered until the second parole period. DOC v. Schwarz, 2005 WI 34, 279 Wis. 2d 223, 693 N.W.2d 703, 03-2001.

304.072 Annotation An offender who has had extended supervision revoked is entitled to sentence credit on any new charges until the trial court resentences the offender for the available remaining term of extended supervision. A reconfinement hearing is a sentencing, and the revocation is not. The defendant was entitled to sentence credit on the new charge from the date of arrest until the day of sentencing on both charges because while the defendant’s extended supervision was revoked, resentencing had not yet occurred. State v. Presley, 2006 WI App 82, 292 Wis. 2d 734, 715 N.W.2d 713, 05-0359.

304.072 Annotation A term of supervision under sub. (3) includes the nonconfinement and confinement time arising from the same sentencing decision. With regard to identifying a term of supervision, probation, incarceration, and extended supervision are each a component of the sentence. A person who initially serves a term of probation that is ultimately revoked, and following revocation serves a bifurcated prison term, can be revoked from that prison term’s extended supervision component on the basis of a rules violation that occurred during the initial term of probation. State ex rel. McElvaney v. Schwarz, 2008 WI App 102, 313 Wis. 2d 125, 756 N.W.2d 441, 07-0415.

304.072 Annotation The “sentence” to which sub. (4) refers is the sentence that was issued by the circuit court subsequent to conviction. Sub. (4) looks back at a sentence earlier commenced. In this case, when the defendant’s parole was revoked, the indeterminate sentence for the defendant’s felony conviction caused reincarceration. The reincarceration order did not establish reincarceration as a new sentence. Rather, it was a continuation of the sentence meted out by the circuit court judge. Therefore, if the defendant had not received all the sentence credit that was available to apply to the felony sentence when that sentence was imposed, the defendant could have received it when parole was revoked. State v. Obriecht, 2015 WI 66, 363 Wis. 2d 816, 867 N.W.2d 387, 13-1345.

304.072 Annotation The plain language of sub. (5) applies only under the terms of s. 973.155. In turn, s. 973.155 (1) (a) permits sentence credit only when confinement is factually in connection with the course of conduct for which the sentence was imposed. State v. Lira, 2021 WI 81, 399 Wis. 2d 419, 966 N.W.2d 605, 19-0691.

304.074 304.074 Reimbursement fee for persons on probation, parole, and extended supervision.

304.074(2) (2) The department shall charge a reasonable fee as determined by the department to probationers, parolees, and persons on extended supervision to partially reimburse the department for the costs of providing supervision and services and, as provided under s. 302.33 (2) (a) 3., to reimburse counties and tribal governing bodies. Subject to sub. (3m), the department shall collect moneys for the fees charged under this subsection and credit those moneys to the appropriation account under s. 20.410 (1) (gf).

304.074(3) (3) The department may decide to waive for a period a fee under sub. (2) for reasons established under department policy, including if the person is unemployed, has a health issue or is disabled, or is participating in education or treatment-related programming.

304.074(3m) (3m) The department may not collect a fee charged under this section until all restitution payments due pursuant to any order under s. 973.20 from the probationer, parolee, or person on extended supervision have been paid.

304.074(4m) (4m) 

304.074(4m)(a) (a) If a probationer, parolee or person on extended supervision who owes unpaid fees to the department under sub. (2) is discharged from probation or from his or her sentence before the department collects the unpaid fees, the department shall, at the time of discharge, issue a notice to the probationer, parolee or person on extended supervision that states that he or she owes unpaid fees under sub. (2) and that he or she is responsible for the payment of the unpaid fees. The notice under this paragraph shall be issued with the certificate of discharge required under s. 304.078 or 973.09 (5).

304.074(4m)(b) (b) The department may request the attorney general to bring a civil action to recover unpaid fees owed to the department under sub. (2) by a person who has been discharged from probation or from his or her sentence and who, at the time of discharge, owed the department unpaid fees under sub. (2). Before requesting the attorney general to bring a civil action under this paragraph, the department shall deduct any fees owed to the department that were inaccurately assessed against the person.

304.074(5) (5) The department shall promulgate rules providing the procedure and timing for collecting fees charged under sub. (2).

304.074 History History: 1995 a. 27; 1997 a. 27, 283; 2001 a. 109; 2003 a. 33; 2015 a. 55, 164, 355; 2017 a. 365.

304.074 Annotation Article I, section 9m, of the Wisconsin Constitution provides for restitution only insofar as the legislature confers such rights through statute. The legislature makes restitution available to crime victims under s. 973.20 and other statutes, but crime victims are not guaranteed restitution in every instance. Section 973.20 (12) (b) makes clear that restitution payments take priority over specific statutory fees, surcharges, fines, and costs, but the priority scheme does not include supervision fees under this section. OAG 2-15.

304.078 304.078 Restoration of civil rights of convicted persons.

304.078(1) (1) In this section:

304.078(1)(a) (a) “Imprisonment” includes parole and extended supervision.

304.078(1)(b) (b) “Jailer” has the meaning given in s. 302.372 (1) (b).

304.078(2) (2) Except as provided in sub. (3), every person who is convicted of a crime obtains a restoration of his or her civil rights by serving out his or her term of imprisonment or otherwise satisfying his or her sentence. The certificate of the department or other responsible supervising agency that a convicted person has served his or her sentence or otherwise satisfied the judgment against him or her is evidence of that fact and that the person is restored to his or her civil rights. The department or other agency shall list in the person’s certificate rights which have been restored and which have not been restored. Persons who served out their terms of imprisonment or otherwise satisfied their sentences prior to August 14, 1947, are likewise restored to their civil rights from and after September 25, 1959.

304.078(3) (3) If a person is disqualified from voting under s. 6.03 (1) (b), his or her right to vote is restored when he or she completes the term of imprisonment or probation for the crime that led to the disqualification. The department or, if the person is sentenced to a county jail or house of correction, the jailer shall inform the person in writing at the time his or her right to vote is restored under this subsection.

304.078 History History: 1987 a. 226; 1989 a. 31 s. 1706; Stats. 1989 s. 304.078; 2003 a. 121.

304.078 Annotation A person convicted of a crime whose sentence has been satisfied may vote. 61 Atty. Gen. 260.

304.078 Annotation A convicted felon whose civil rights have been restored pursuant to s. 57.078 [now this section] is barred from the office of notary public unless he or she has been pardoned. 63 Atty. Gen. 74.

304.078 Annotation The operation of this section on a prior conviction is irrelevant to a conviction for which a prior conviction is a predicate. Roehl v. United States, 977 F.2d 375 (1992).

304.08 304.08 Applications for pardon; regulations. All applications for pardon of any convict serving sentence of one year or more, except for pardons to be granted within 10 days next before the time when the convict would be otherwise entitled to discharge pursuant to law, shall be made and conducted in the manner hereinafter prescribed, and according to such additional regulations as may from time to time be prescribed by the governor.

304.08 History History: 1989 a. 31 s. 1707; Stats. 1989 s. 304.08.

304.08 Annotation Executive Clemency in Wisconsin: Procedures and Policies. Bauer. 1973 WLR 1154.