Chapter 939

939.62 Annotation In 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 Annotation For 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 Annotation A 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 Annotation Evidence of repeater status may be submitted any time following the jury verdict up until the actual sentencing. State v. Kashney, 2008 WI App 164, 314 Wis. 2d 623, 761 N.W.2d 672, 07-2687.

939.62 Annotation The 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 Annotation A 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 Annotation Sub. (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 Annotation The 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.

939.621 939.621 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 History History: 1987 a. 346; 1995 a. 304; 2011 a. 277; 2017 a. 188.

939.621 Annotation When 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 Annotation The 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 Annotation Although 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.

939.623 939.623 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 History History: 2021 a. 76.

939.63 939.63 Penalties; use of a dangerous weapon.

939.63(1) (1) If a person commits a crime while possessing, using or threatening to use a dangerous weapon, the maximum term of imprisonment prescribed by law for that crime may be increased as follows:

939.63(1)(a) (a) The maximum term of imprisonment for a misdemeanor may be increased by not more than 6 months.

939.63(1)(b) (b) If the maximum term of imprisonment for a felony is more than 5 years or is a life term, the maximum term of imprisonment for the felony may be increased by not more than 5 years.

939.63(1)(c) (c) If the maximum term of imprisonment for a felony is more than 2 years, but not more than 5 years, the maximum term of imprisonment for the felony may be increased by not more than 4 years.

939.63(1)(d) (d) The maximum term of imprisonment for a felony not specified in par. (b) or (c) may be increased by not more than 3 years.

939.63(2) (2) The increased penalty provided in this section does not apply if possessing, using or threatening to use a dangerous weapon is an essential element of the crime charged.

939.63(3) (3) This section applies only to crimes specified under chs. 939 to 951 and 961.

939.63 History History: 1979 c. 114; 1981 c. 212; 1987 a. 332 s. 64; 1995 a. 448; 2001 a. 109.

939.63 Annotation The fact that the maximum term for a misdemeanor may exceed one year under sub. (1) (a) does not upgrade the crime to felony status. State v. Denter, 121 Wis. 2d 118, 357 N.W.2d 555 (1984).

939.63 Annotation Possession encompasses both actual and constructive possession. To prove a violation of this section, the state must prove that the defendant possessed the weapon to facilitate the predicate offense. State v. Peete, 185 Wis. 2d 4, 517 N.W.2d 149 (1994). See also State v. Howard, 211 Wis. 2d 269, 564 N.W.2d 753 (1997), 95-0770.

939.63 Annotation An automobile may constitute a dangerous weapon under s. 939.22 (10). State v. Bidwell, 200 Wis. 2d 200, 546 N.W.2d 507 (Ct. App. 1996).

939.63 Annotation Under Peete, 185 Wis. 2d 4 (1994), there is sufficient evidence of possession if the evidence allows a reasonable jury to find beyond a reasonable doubt that the defendant possessed a dangerous weapon in order to use it or threaten to use it, even if the defendant did not use or threaten to use it in the commission of the crime. State v. Page, 2000 WI App 267, 240 Wis. 2d 276, 622 N.W.2d 285, 99-2015.

939.63 Annotation When 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.

939.632 939.632 Penalties; violent crime in a school zone.

939.632(1) (1) In this section:

939.632(1)(a) (a) “School” means a public school, parochial or private school, or tribal school, as defined in s. 115.001 (15m), that provides an educational program for one or more grades between grades 1 and 12 and that is commonly known as an elementary school, middle school, junior high school, senior high school, or high school.

939.632(1)(b) (b) “School bus” has the meaning given in s. 340.01 (56).

939.632(1)(c) (c) “School premises” means any school building, grounds, recreation area or athletic field or any other property owned, used or operated for school administration.

939.632(1)(d) (d) “School zone” means any of the following:

939.632(1)(d)1. 1. On the premises of a school.

939.632(1)(d)2. 2. Within 1,000 feet from the premises of a school.

939.632(1)(d)3. 3. On a school bus or public transportation transporting students to and from a public or private school or to and from a tribal school, as defined in s. 115.001 (15m).

939.632(1)(d)3m. 3m. At school bus stops where students are waiting for a school bus or are being dropped off by a school bus.

939.632(1)(e) (e) “Violent crime” means any of the following:

939.632(1)(e)1. 1. Any felony under s. 940.01, 940.02, 940.03, 940.05, 940.09 (1c), 940.19 (2), (4) or (5), 940.198 (2) (a) or (c), 940.21, 940.225 (1), (2) or (3), 940.235, 940.305, 940.31, 941.20, 941.21, 943.02, 943.06, 943.10 (2), 943.231 (1), 943.32 (2), 948.02 (1) or (2), 948.025, 948.03 (2) (a) or (c) or (5) (a) 1., 2., 3., or 4., 948.05, 948.051, 948.055, 948.07, 948.08, 948.085, or 948.30 (2) or under s. 940.302 (2) if s. 940.302 (2) (a) 1. b. applies.

939.632(1)(e)2. 2. The solicitation, conspiracy or attempt, under s. 939.30, 939.31 or 939.32, to commit a Class A felony.

939.632(1)(e)3. 3. Any misdemeanor under s. 940.19 (1), 940.225 (3m), 940.32 (2), 940.42, 940.44, 941.20 (1), 941.23, 941.231, 941.235, or 941.38 (3).

939.632(2) (2) If a person commits a violent crime in a school zone, the maximum term of imprisonment is increased as follows:

939.632(2)(a) (a) If the violent crime is a felony, the maximum term of imprisonment is increased by 5 years.

939.632(2)(b) (b) If the violent crime is a misdemeanor, the maximum term of imprisonment is increased by 3 months and the place of imprisonment is the county jail.

939.632(3) (3) 

939.632(3)(a) (a) In addition to any other penalties that may apply to the crime under sub. (2), the court may require the person to complete 100 hours of community service work for a public agency or a nonprofit charitable organization. The court shall ensure that the defendant is provided a written statement of the terms of the community service order. Any organization or agency acting in good faith to which a defendant is assigned under an order under this paragraph has immunity from any civil liability in excess of $25,000 for acts or omissions by or impacting on the defendant.

939.632(3)(b) (b) The court shall not impose the requirement under par. (a) if the court determines that the person would pose a threat to public safety while completing the requirement.

939.632(4) (4) This section provides for the enhancement of the penalties applicable for the underlying crime. The court shall direct that the trier of fact find a special verdict as to all of the issues specified in sub. (2).

939.632 History History: 1995 a. 22; 2001 a. 109; 2005 a. 277; 2007 a. 116, 127; 2009 a. 180, 302; 2015 a. 149, 366; 2021 a. 76; 2023 a. 10.

939.632 Annotation The violent crime in a school zone penalty enhancer is not unconstitutional as applied to the defendant. The legislature seeks to deter violent crime near schools in an effort to create a safety zone around schools. The 1,000-foot perimeter is a reasonable distance to try to accomplish this legislative goal. State v. Quintana, 2007 WI App 29, 299 Wis. 2d 234, 729 N.W.2d 776, 06-0499.

939.635 939.635 Increased penalty for certain crimes against children committed by a child care provider. If a person commits a violation of s. 948.02, 948.025, or 948.03 (2), (3), or (5) (a) 1., 2., 3., or 4. against a child for whom the person was providing child care for compensation, the maximum term of imprisonment for that crime may be increased by not more than 5 years.

939.635 History History: 2011 a. 82; 2015 a. 366.

939.645 939.645 Penalty; crimes committed against certain people or property.

939.645(1) (1) If a person does all of the following, the penalties for the underlying crime are increased as provided in sub. (2):

939.645(1)(a) (a) Commits a crime under chs. 939 to 948.

939.645(1)(b) (b) Intentionally selects the person against whom the crime under par. (a) is committed or selects the property that is damaged or otherwise affected by the crime under par. (a) in whole or in part because of the actor’s belief or perception regarding the race, religion, color, disability, sexual orientation, national origin or ancestry of that person or the owner or occupant of that property, whether or not the actor’s belief or perception was correct.

939.645(2) (2) 

939.645(2)(a) (a) If the crime committed under sub. (1) is ordinarily a misdemeanor other than a Class A misdemeanor, the revised maximum fine is $10,000 and the revised maximum term of imprisonment is one year in the county jail.

939.645(2)(b) (b) If the crime committed under sub. (1) is ordinarily a Class A misdemeanor, the penalty increase under this section changes the status of the crime to a felony and the revised maximum fine is $10,000 and the revised maximum term of imprisonment is 2 years.

939.645(2)(c) (c) If the crime committed under sub. (1) is a felony, the maximum fine prescribed by law for the crime may be increased by not more than $5,000 and the maximum term of imprisonment prescribed by law for the crime may be increased by not more than 5 years.

939.645(3) (3) This section provides for the enhancement of the penalties applicable for the underlying crime. The court shall direct that the trier of fact find a special verdict as to all of the issues specified in sub. (1).

939.645(4) (4) This section does not apply to any crime if proof of race, religion, color, disability, sexual orientation, national origin or ancestry or proof of any person’s perception or belief regarding another’s race, religion, color, disability, sexual orientation, national origin or ancestry is required for a conviction for that crime.

939.645 History History: 1987 a. 348; 1991 a. 291; 2001 a. 109.

939.645 Annotation When 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.

939.645 Annotation The “hate crimes” law, this section, does not unconstitutionally infringe upon free speech. Wisconsin v. Mitchell, 508 U.S. 476, 113 S. Ct. 2194, 124 L. Ed. 2d 436 (1993).

939.645 Annotation Hate Crimes—New Limits on the Scope of First Amendment Protection? Resler. 77 MLR 415 (1994).

939.645 Annotation Put to the Proof: Evidentiary Considerations in Wisconsin Hate Crime Prosecutions. Read. 89 MLR 453 (2005).

939.645 Annotation Talking About Hate Speech: A Rhetorical Analysis of American and Canadian Approaches to the Regulation of Hate Speech. Moran. 1994 WLR 1425.

939.645 Annotation Hate Crimes. Kassel. Wis. Law. Oct. 1992.

subch. V of ch. 939 SUBCHAPTER V

RIGHTS OF THE PROSECUTION

939.65 939.65 Prosecution under more than one section permitted. Except as provided in s. 948.025 (3), if an act forms the basis for a crime punishable under more than one statutory provision, prosecution may proceed under any or all such provisions.

939.65 History History: 1993 a. 227.

939.65 Annotation Due process does not require that a person know with certainty which crime, among several, the person is committing, at least until the prosecution exercises its charging discretion. Harris v. State, 78 Wis. 2d 357, 254 N.W.2d 291 (1977).

939.65 Annotation The district attorney had the discretion to charge the defendant with a Class A misdemeanor offense of sexual intercourse with a child age 16 or older under s. 948.09, a Class I felony offense of exposing intimate parts under s. 948.10 (1), and a Class D felony offense of child enticement with intent to expose intimate parts under s. 948.07 (3). It was not absurd to penalize the defendant for the felony crime of exposing intimate parts, which would be practically necessary for the misdemeanor intercourse to occur. State v. Matthews, 2019 WI App 44, 388 Wis. 2d 335, 933 N.W.2d 152, 18-0845.

939.66 939.66 Conviction of included crime permitted. Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:

939.66(1) (1) A crime which does not require proof of any fact in addition to those which must be proved for the crime charged.