939.6195(1)(a)2.2. A commission of any crime specified under chs. 939 to 951 and 961 if the person uses a firearm in the commission of the crime. 939.6195(2)(2) If a person who is a repeater is convicted of a firearm violation, the court shall impose a bifurcated sentence under s. 973.01. Notwithstanding s. 973.01 (2) (b), the term of confinement in prison portion of the bifurcated sentence shall be at least 4 years, but otherwise the penalties for the crime apply, subject to any applicable penalty enhancement. The court may not place the person on probation. 939.6195(3)(3) This section does not apply to sentences imposed after July 1, 2022. 939.6195(4)(4) The department of justice shall, after consulting with persons the department determines to be appropriate, including the city of Milwaukee and the Milwaukee police department, prepare a report on the efficacy of the mandatory minimum sentence under this section. No later than August 1, 2022, the department of justice shall submit the report to the chief clerk of each house of the legislature, for distribution to the legislature under s. 13.172 (2). 939.6195 HistoryHistory: 2017 a. 145. 939.62939.62 Increased penalty for habitual criminality. 939.62(1)(1) If the actor is a repeater, as that term is defined in sub. (2), and the present conviction is for any crime for which imprisonment may be imposed, except for an escape under s. 946.42 or a failure to report under s. 946.425, the maximum term of imprisonment prescribed by law for that crime may be increased as follows: 939.62(1)(a)(a) A maximum term of imprisonment of one year or less may be increased to not more than 2 years. 939.62(1)(b)(b) A maximum term of imprisonment of more than one year but not more than 10 years may be increased by not more than 2 years if the prior convictions were for misdemeanors and by not more than 4 years if the prior conviction was for a felony. 939.62(1)(c)(c) A maximum term of imprisonment of more than 10 years may be increased by not more than 2 years if the prior convictions were for misdemeanors and by not more than 6 years if the prior conviction was for a felony. 939.62(2)(2) The actor is a repeater if the actor was convicted of a felony during the 5-year period immediately preceding the commission of the crime for which the actor presently is being sentenced, or if the actor was convicted of a misdemeanor on 3 separate occasions during that same period, which convictions remain of record and unreversed. It is immaterial that sentence was stayed, withheld or suspended, or that the actor was pardoned, unless such pardon was granted on the ground of innocence. In computing the preceding 5-year period, time which the actor spent in actual confinement serving a criminal sentence shall be excluded. 939.62(2m)(a)1m.a.a. A violation of s. 948.02, 948.025, 948.05, 948.051, 948.055, 948.06, 948.07, 948.08, 948.081, 948.085, 948.095 or 948.30 or, if the victim was a minor and the convicted person was not the victim’s parent, a violation of s. 940.31. 939.62(2m)(a)1m.b.b. A crime at any time under federal law or the law of any other state or, prior to July 16, 1998, under the law of this state that is comparable to a crime specified in subd. 1m. a. 939.62(2m)(a)2m.a.a. Any felony under s. 961.41 (1), (1m) or (1x) that is a Class A, B, or C felony or, if the felony was committed before February 1, 2003, that is or was punishable by a maximum prison term of 30 years or more. 939.62(2m)(a)2m.b.b. Any felony under s. 940.09 (1), 1999 stats., s. 943.23 (1m) or (1r), 1999 stats., s. 948.35 (1) (b) or (c), 1999 stats., s. 948.36, 1999 stats., or s. 943.23 (1g), 2021 stats., or s. 940.01, 940.02, 940.03, 940.05, 940.09 (1c), 940.16, 940.19 (5), 940.195 (5), 940.198 (2) (a) or (c), 940.21, 940.225 (1) or (2), 940.305, 940.31, 941.327 (2) (b) 4., 943.02, 943.10 (2), 943.231 (1), 943.32 (2), 946.43 (1m), 948.02 (1) or (2), 948.025, 948.03 (2) (a) or (c) or (5) (a) 1., 2., 3., or 4., 948.05, 948.06, 948.07, 948.075, 948.08, 948.081, 948.085, or 948.30 (2). 939.62(2m)(a)2m.d.d. A crime at any time under federal law or the law of any other state or, prior to April 28, 1994, under the law of this state that is comparable to a crime specified in subd. 2m. a., am., b., or c. 939.62(2m)(b)(b) The actor is a persistent repeater if one of the following applies: 939.62(2m)(b)1.1. The actor has been convicted of a serious felony on 2 or more separate occasions at any time preceding the serious felony for which he or she presently is being sentenced under ch. 973, which convictions remain of record and unreversed and, of the 2 or more previous convictions, at least one conviction occurred before the date of violation of at least one of the other felonies for which the actor was previously convicted. 939.62(2m)(b)2.2. The actor has been convicted of a serious child sex offense on at least one occasion at any time preceding the date of violation of the serious child sex offense for which he or she presently is being sentenced under ch. 973, which conviction remains of record and unreversed. 939.62(2m)(bm)(bm) For purposes of counting a conviction under par. (b), it is immaterial that the sentence for the previous conviction was stayed, withheld or suspended, or that the actor was pardoned, unless the pardon was granted on the ground of innocence. 939.62(2m)(c)(c) If the actor is a persistent repeater, the term of imprisonment for the felony for which the persistent repeater presently is being sentenced under ch. 973 is life imprisonment without the possibility of parole or extended supervision. 939.62(2m)(d)(d) If a prior conviction is being considered as being covered under par. (a) 1m. b. or 2m. d. as comparable to a felony specified under par. (a) 1m. a. or 2m. a., am., b., or c., the conviction may be counted as a prior conviction under par. (b) only if the court determines, beyond a reasonable doubt, that the violation relating to that conviction would constitute a felony specified under par. (a) 1m. a. or 2m. a., am., b., or c. if committed by an adult in this state. 939.62(3)(3) In this section “felony” and “misdemeanor” have the following meanings: 939.62(3)(a)(a) In case of crimes committed in this state, the terms do not include motor vehicle offenses under chs. 341 to 349 and offenses handled through proceedings in the court assigned to exercise jurisdiction under chs. 48 and 938, but otherwise have the meanings designated in s. 939.60. 939.62(3)(b)(b) In case of crimes committed in other jurisdictions, the terms do not include those crimes which are equivalent to motor vehicle offenses under chs. 341 to 349 or to offenses handled through proceedings in the court assigned to exercise jurisdiction under chs. 48 and 938. Otherwise, felony means a crime which under the laws of that jurisdiction carries a prescribed maximum penalty of imprisonment in a prison or penitentiary for one year or more. Misdemeanor means a crime which does not carry a prescribed maximum penalty sufficient to constitute it a felony and includes crimes punishable only by a fine. 939.62 Cross-referenceCross-reference: For procedure, see s. 973.12. 939.62 AnnotationImposition of a three-year sentence as a repeater was not cruel and unusual even though the conviction involved the stealing of two boxes of candy, which carried a maximum sentence of six months. Hanson v. State, 48 Wis. 2d 203, 179 N.W.2d 909 (1970). 939.62 AnnotationA repeater charge must be withheld from the jury’s knowledge since it is relevant only to sentencing. Mulkovich v. State, 73 Wis. 2d 464, 243 N.W.2d 198 (1976). 939.62 AnnotationThis section authorizes penalty enhancement only when the maximum underlying sentence is imposed. The enhancement portion of a sub-maximum sentence is vacated as an abuse of sentencing discretion. State v. Harris, 119 Wis. 2d 612, 350 N.W.2d 633 (1984). 939.62 AnnotationIn sub. (2), “convicted of a misdemeanor on 3 separate occasions” requires three separate misdemeanors, not three separate court appearances. State v. Wittrock, 119 Wis. 2d 664, 350 N.W.2d 647 (1984). 939.62 AnnotationA court’s acceptance of a guilty plea or verdict is sufficient to trigger the operation of this section; completion of sentencing is not a prerequisite. State v. Wimmer, 152 Wis. 2d 654, 449 N.W.2d 621 (Ct. App. 1989). 939.62 AnnotationFelony convictions entered following a waiver from juvenile court are a proper basis for a repeater allegation. State v. Kastner, 156 Wis. 2d 371, 457 N.W.2d 331 (Ct. App. 1990). 939.62 AnnotationSub. (1) is applicable when concurrent maximum sentences are imposed for multiple offenses. Consecutive sentences are not required. State v. Davis, 165 Wis. 2d 78, 477 N.W.2d 307 (Ct. App. 1991). 939.62 AnnotationFor offenses under ch. 161 [now ch. 961], the court may apply this section or s. 961.48, but not both. State v. Ray, 166 Wis. 2d 855, 481 N.W.2d 288 (Ct. App. 1992). 939.62 AnnotationEach conviction for a misdemeanor constitutes a “separate occasion” for purposes of sub. (2). State v. Hopkins, 168 Wis. 2d 802, 484 N.W.2d 549 (1992). 939.62 AnnotationEnhancement of a sentence under this section does not violate double jeopardy. State v. James, 169 Wis. 2d 490, 485 N.W.2d 436 (Ct. App. 1992). 939.62 AnnotationThis section does not grant a trial court authority to increase a punitive sanction for contempt of court. State v. Carpenter, 179 Wis. 2d 838, 508 N.W.2d 69 (Ct. App. 1993). 939.62 AnnotationThe state is charged with proving a prior conviction and that it lies within the five-year window of sub. (2). State v. Goldstein, 182 Wis. 2d 251, 513 N.W.2d 631 (Ct. App. 1994). 939.62 AnnotationA guilty plea without a specific admission to repeater allegations is not sufficient to establish the facts necessary to impose the repeater penalty enhancer. State v. Zimmermann, 185 Wis. 2d 549, 518 N.W.2d 303 (Ct. App. 1994). 939.62 AnnotationWhen a defendant does not admit to habitual criminality, the state must prove the alleged repeater status beyond a reasonable doubt. State v. Theriault, 187 Wis. 2d 125, 522 N.W.2d 264 (Ct. App. 1994). 939.62 AnnotationA commitment under the Sex Crimes Law, ch. 975, is not a sentence under sub. (2). State v. Kruzycki, 192 Wis. 2d 509, 531 N.W.2d 429 (Ct. App. 1995). 939.62 AnnotationSub. (2m) (b) is constitutional. It does not violate the guaranty against cruel and unusual punishment, the principal of separation of powers, or the guaranty of equal protection. State v. Lindsey, 203 Wis. 2d 423, 554 N.W.2d 215 (Ct. App. 1996), 95-3392. 939.62 AnnotationA conviction for purposes of sub. (2) occurs when the judgment of conviction under s. 972.13 is entered, not the date that guilt is found. Mikrut v. State, 212 Wis. 2d 859, 569 N.W.2d 765 (Ct. App. 1997), 96-2703. 939.62 AnnotationSection 973.13 commands that all sentences in excess of that authorized by law be declared void, including the repeater portion of a sentence. Prior postconviction motions that failed to challenge the validity of the sentence do not bar seeking relief from faulty repeater sentences. State v. Flowers, 221 Wis. 2d 20, 586 N.W.2d 175 (Ct. App. 1998), 97-3682. 939.62 AnnotationWhen the state charged the defendant as a repeater under subs. (1) (c) and (2), then charged the defendant as a repeater under sub. (2m) in the information, it abandoned the earlier charges and could not resurrect them when the latter charge proved to be invalid. State v. Thoms, 228 Wis. 2d 868, 599 N.W.2d 84 (Ct. App. 1999), 98-3260. 939.62 AnnotationConfinement time spent on various parole holds qualifies as actual confinement serving a criminal sentence thereby extending the five-year period under sub. (2). State v. Price, 231 Wis. 2d 229, 604 N.W.2d 898 (Ct. App. 1999), 99-0746. 939.62 AnnotationA circuit court may not determine the validity of a prior conviction during an enhanced sentencing proceeding predicated on the prior conviction unless the offender alleges that a violation of the right to a lawyer occurred in the prior conviction. The offender may use whatever means are available to challenge the other conviction in another forum, and if successful, seek to reopen the enhanced sentence. State v. Hahn, 2000 WI 118, 238 Wis. 2d 889, 618 N.W.2d 528, 99-0554. 939.62 AnnotationWhen two penalty enhancers are applicable to the same crime, the length of the second penalty enhancer is based on the maximum term for the base crime as extended by the first penalty enhancer. State v. Quiroz, 2002 WI App 52, 251 Wis. 2d 245, 641 N.W.2d 715, 01-1549. 939.62 AnnotationFor purposes of applying this section, the definition of “crime” in s. 939.12 as “conduct which is prohibited by state law and punishable by fine or imprisonment or both” is applicable to statutes outside of chs. 939 to 948 and 951. State v. Sveum, 2002 WI App 105, 254 Wis. 2d 868, 648 N.W.2d 496, 01-0230. 939.62 AnnotationAn uncertified copy of a prior judgment of conviction may be used to prove a convicted defendant’s status as a habitual criminal. The rules of evidence do not apply to documents offered during a circuit court’s presentence determination of whether a qualifying prior conviction exists. The state has the burden of proof and must offer proof beyond a reasonable doubt of the conviction. State v. Saunders, 2002 WI 107, 255 Wis. 2d 589, 649 N.W.2d 263, 01-0271. 939.62 AnnotationA defendant’s admission that an out-of-state crime is a serious felony does not relieve a court of its obligation to make an independent determination on that issue. The trial court’s failure to make that finding did not prevent the appellate court from making it. State v. Collins, 2002 WI App 177, 256 Wis. 2d 697, 649 N.W.2d 325, 01-2185. 939.62 AnnotationA defendant convicted of a second or subsequent operating while intoxicated offense is subject to the penalty enhancements provided for in both this section and s. 346.65 (2), if the application of each enhancer is based on a separate and distinct prior conviction or convictions. State v. Delaney, 2003 WI 9, 259 Wis. 2d 77, 658 N.W.2d 416, 01-1051. 939.62 AnnotationIn determining whether a prior offense was a serious child sex offense under sub. (2m), a court may apply an elements only test but may also conduct a comparable analysis by considering whether the defendant’s conduct under the statute governing the prior conviction would constitute a felony under the current statute. State v. Wield, 2003 WI App 179, 266 Wis. 2d 872, 668 N.W.2d 823, 02-2242. 939.62 AnnotationFor purposes of computation of the five-year period under sub. (2), time spent in the least restrictive phase of the intensive sanctions program is time spent in actual confinement serving a criminal sentence that is excluded. The intensive sanctions program operates as a correctional institution, is deemed a confinement classification, and is more restrictive than ordinary probation or parole supervision or extended supervision. State v. Pfeil, 2007 WI App 241, 306 Wis. 2d 237, 742 N.W.2d 573, 06-2771. 939.62 AnnotationA trial court judge, rather than a jury, is allowed to determine the applicability of a defendant’s prior conviction for sentence enhancement purposes when the necessary information concerning the prior conviction can be readily determined from an existing judicial record. State v. LaCount, 2008 WI 59, 310 Wis. 2d 85, 750 N.W.2d 780, 06-0672. 939.62 AnnotationThe application of the persistent repeater statute requires a particular sequence of convictions: 1) the conviction date for the first offense must have preceded the violation date for the second offense; and 2) the conviction date for the second offense must have preceded the violation date for the current Wisconsin offense. State v. Long, 2009 WI 36, 317 Wis. 2d 92, 765 N.W.2d 557, 07-2307. 939.62 AnnotationA defendant may collaterally attack a prior conviction in an enhanced sentence proceeding on the ground that the defendant was denied the constitutional right to counsel in the earlier case. The U.S. Supreme Court recognized that the information a defendant must possess to execute a valid waiver of counsel depends on a range of case-specific factors, including the defendant’s education or sophistication. The Supreme Court’s reference to a defendant’s “education or sophistication” suggests that a court may take the defendant’s cognitive limitations into account when determining the validity of the defendant’s waiver. State v. Bohlinger, 2013 WI App 39, 346 Wis. 2d 549, 828 N.W.2d 900, 12-1060. 939.62 AnnotationSub. (3) (a) has no bearing upon the last sentence of sub. (2), which does not use the word “felony” or “misdemeanor” at all, but is concerned only with “time” a defendant “spent in confinement” on a “criminal sentence,” without any regard to the type of offense underlying that time. Nothing in these provisions suggests that time a defendant spent in actual confinement on a criminal sentence under sub. (2) does not include time related to a motor vehicle offense conviction. State v. Cooper, 2016 WI App 63, 371 Wis. 2d 539, 885 N.W.2d 390, 15-1160. 939.62 AnnotationThe use of the word “or” in s. 973.01 (2) (c) 2. c. contrasts with the use of the word “and” in s. 973.01 (2) (c) 2. a. The use of the word “or” indicates that only one of the penalty enhancers found in sub. (1) and s. 961.48 can apply, but not both. State v. Hailes, 2023 WI App 29, 408 Wis. 2d 465, 992 N.W.2d 835, 21-1339. 939.621939.621 Increased penalty for certain domestic abuse offenses. 939.621(1)(1) In this section, “domestic abuse repeater” means either of the following: 939.621(1)(a)(a) A person who commits, during the 72 hours immediately following an arrest for a domestic abuse incident as set forth in s. 968.075 (5), an act of domestic abuse, as defined in s. 968.075 (1) (a) that constitutes the commission of a crime. For the purpose of the definition under this paragraph, the 72-hour period applies whether or not there has been a waiver by the victim under s. 968.075 (5) (c). 939.621(1)(b)(b) A person who, during the 10-year period immediately prior to the commission of the crime for which the person is presently being sentenced if the convictions remain of record and unreversed, was convicted on 2 or more separate occasions of a felony or a misdemeanor for which a court imposed a domestic abuse surcharge under s. 973.055 (1), a felony or a misdemeanor for which a court waived a domestic abuse surcharge pursuant to s. 973.055 (4), or a felony or a misdemeanor that was committed in another state but that, had it been committed in this state, would have subjected the person to a domestic abuse surcharge under s. 973.055 (1) or that is a crime of domestic abuse under the laws of that state. For the purpose of the definition under this paragraph, it is immaterial that sentence was stayed, withheld or suspended, or that the person was pardoned, unless such pardon was granted on the ground of innocence. In computing the preceding 10-year period, time that the person spent in actual confinement serving a criminal sentence shall be excluded. 939.621(2)(2) If a person commits an act of domestic abuse, as defined in s. 968.075 (1) (a) and the act constitutes the commission of a crime, the maximum term of imprisonment for that crime may be increased by not more than 2 years if the person is a domestic abuse repeater. The victim of the domestic abuse crime does not have to be the same as the victim of the domestic abuse incident that resulted in the prior arrest or conviction. The penalty increase under this section changes the status of a misdemeanor to a felony. 939.621 AnnotationWhen two penalty enhancers are applicable to the same crime, the length of the second penalty enhancer is based on the maximum term for the base crime as extended by the first penalty enhancer. State v. Quiroz, 2002 WI App 52, 251 Wis. 2d 245, 641 N.W.2d 715, 01-1549. 939.621 AnnotationThe proof requirements of s. 973.12 (1) apply to domestic abuse repeater allegations. For the domestic abuse repeater enhancer under sub. (1) (b) to apply, the state had to prove beyond a reasonable doubt, or the defendant had to personally admit, that the defendant was convicted on two separate occasions within the ten-year period immediately prior to the commission of the disorderly conduct of an offense for which a court either imposed a domestic abuse surcharge under s. 973.055 (1) or waived a domestic abuse surcharge under s. 973.055 (4). State v. Hill, 2016 WI App 29, 368 Wis. 2d 243, 878 N.W.2d 709, 15-0374. 939.621 AnnotationAlthough Consolidated Court Automation Programs (CCAP) records do not constitute prima facie proof of prior convictions for purposes of s. 973.12 (1), nothing prevents the court from relying on those records to determine whether the defendant understood the domestic abuse repeater allegation in the charging documents and therefore admitted, by virtue of the defendant’s no contest plea, that the defendant qualified as a domestic abuse repeater. State v. Hill, 2016 WI App 29, 368 Wis. 2d 243, 878 N.W.2d 709, 15-0374. 939.623939.623 Increased penalty for elder person victims. 939.623(1)(1) In this section, “elder person” means any individual who is 60 years of age or older. 939.623(2)(2) If the crime victim is an elder person, and the present conviction is for any crime for which imprisonment may be imposed, the maximum term of imprisonment prescribed by law for that crime may be increased as follows: 939.623(2)(a)(a) A maximum term of imprisonment of one year or less may be increased to not more than 2 years. 939.623(2)(b)(b) A maximum term of imprisonment of more than one year but not more than 10 years may be increased by not more than 4 years. 939.623(2)(c)(c) A maximum term of imprisonment of more than 10 years may be increased by not more than 6 years. 939.623(3)(3) This section applies irrespective of whether the defendant had actual knowledge of the crime victim’s age. A mistake regarding the crime victim’s age is not a defense to an increased penalty under this section. 939.623 HistoryHistory: 2021 a. 76. 939.63939.63 Penalties; use of a dangerous weapon.
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Chs. 939-951, Criminal Code
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