Chapter 971

971.36(3) (3) In any case of theft involving more than one theft, all thefts may be prosecuted as a single crime if one of the following applies:

971.36(3)(a) (a) The property belonged to the same owner and the thefts were committed pursuant to a single intent and design or in execution of a single deceptive scheme.

971.36(3)(b) (b) The property belonged to the same owner and was stolen by a person in possession of it.

971.36(3)(c) (c) The property belonged to more than one owner and was stolen from the same place pursuant to a single intent and design.

971.36(3)(d) (d) If the property is mail, as defined in s. 943.204 (1) (d), the property was stolen from one or more owners during a course of conduct, as defined in s. 947.013 (1) (a).

971.36(4) (4) In any case of theft involving more than one theft but prosecuted as a single crime, it is sufficient to allege generally a theft of property to a certain value committed between certain dates, without specifying any particulars. On the trial, evidence may be given of any such theft committed on or between the dates alleged; and it is sufficient to maintain the charge and is not a variance if it is proved that any property was stolen during such period. But an acquittal or conviction in any such case does not bar a subsequent prosecution for any acts of theft on which no evidence was received at the trial of the original charge. In case of a conviction on the original charge on a plea of guilty or no contest, the district attorney may, at any time before sentence, file a bill of particulars or other written statement specifying what particular acts of theft are included in the charge and in that event conviction does not bar a subsequent prosecution for any other acts of theft.

971.36 History History: 1993 a. 486; 2019 a. 144.

971.36 Annotation The legislature in sub. (3) (a) has explicitly provided prosecutors with discretion to charge multiple thefts as a single crime when the property belonged to the same owner and the thefts were committed pursuant to a single intent and design or in execution of a single deceptive scheme. State v. Jacobsen, 2014 WI App 13, 352 Wis. 2d 409, 842 N.W.2d 365, 13-0830.

971.36 Annotation Subs. (3) (a) and (4) allow for aggregation of the value of property alleged stolen when multiple acts of theft are prosecuted as one count. Reading s. 943.20 (1) (a) and subs. (3) (a) and (4) together, multiple acts of theft occurring over a period of time may, in certain circumstances, constitute one continuous offense that is not complete until the last act is completed. State v. Elverman, 2015 WI App 91, 366 Wis. 2d 169, 873 N.W.2d 528, 14-0354.

971.36 Annotation “Theft” under this section includes retail theft under s. 943.50. State v. Lopez, 2019 WI 101, 389 Wis. 2d 156, 936 N.W.2d 125, 17-0913.

971.365 971.365 Crimes involving certain controlled substances.

971.365(1) (1) 

971.365(1)(a) (a) In any case under s. 961.41 (1) (em), 1999 stats., or s. 961.41 (1) (cm), (d), (dm), (e), (f), (g) or (h) involving more than one violation, all violations may be prosecuted as a single crime if the violations were pursuant to a single intent and design.

971.365(1)(b) (b) In any case under s. 961.41 (1m) (em), 1999 stats., or s. 961.41 (1m) (cm), (d), (dm), (e), (f), (g) or (h) involving more than one violation, all violations may be prosecuted as a single crime if the violations were pursuant to a single intent and design.

971.365(1)(c) (c) In any case under s. 961.41 (3g) (a) 2., 1999 stats., or s. 961.41 (3g) (dm), 1999 stats., or s. 961.41 (3g) (am), (c), (d), (e), or (g) involving more than one violation, all violations may be prosecuted as a single crime if the violations were pursuant to a single intent and design.

971.365(2) (2) An acquittal or conviction under sub. (1) does not bar a subsequent prosecution for any acts in violation of s. 961.41 (1) (em), 1999 stats., s. 961.41 (1m) (em), 1999 stats., s. 961.41 (3g) (a) 2., 1999 stats., or s. 961.41 (3g) (dm), 1999 stats., or s. 961.41 (1) (cm), (d), (dm), (e), (f), (g), or (h), (1m) (cm), (d), (dm), (e), (f), (g), or (h) or (3g) (am), (c), (d), (e), or (g) on which no evidence was received at the trial on the original charge.

971.365 History History: 1985 a. 328; 1987 a. 339; 1989 a. 121; 1993 a. 98, 118, 490; 1995 a. 448; 1999 a. 48; 2001 a. 109; 2003 a. 49; 2021 a. 179.

971.366 971.366 Use of another’s personal identifying information: charges. In any case under s. 943.201 or 943.203 involving more than one violation, all violations may be prosecuted as a single crime if the violations were pursuant to a single intent and design.

971.366 History History: 2003 a. 36.

971.367 971.367 False statements to financial institutions: charges. In any case under s. 946.79 involving more than one violation, all violations may be prosecuted as a single crime if the violations were pursuant to a single intent and design.

971.367 History History: 2003 a. 36.

971.37 971.37 Deferred prosecution programs; domestic abuse and child sexual abuse.

971.37(1) (1) In this section, “child sexual abuse” means an alleged violation of s. 940.225, 948.02, 948.025, 948.05, 948.06, 948.085, or 948.095 if the alleged victim is a minor and the person accused of, or charged with, the violation:

971.37(1)(a) (a) Lives with or has lived with the minor;

971.37(1)(b) (b) Is nearer of kin to the alleged victim than a 2nd cousin;

971.37(1)(c) (c) Is a guardian or legal custodian of the minor; or

971.37(1)(d) (d) Is or appears to be in a position of power or control over the minor.

971.37(1m) (1m) 

971.37(1m)(a) (a) The district attorney may enter into a deferred prosecution agreement under this section with any of the following:

971.37(1m)(a)1. 1. A person accused of or charged with child sexual abuse.

971.37(1m)(a)2. 2. An adult accused of or charged with a criminal violation of s. 940.19, 940.20 (1m), 940.201, 940.225, 940.23, 940.285, 940.30, 940.42, 940.43, 940.44, 940.45, 940.48, 941.20, 941.30, 943.01, 943.011, 943.14, 943.15, 946.49, 947.01 (1), 947.012 or 947.0125 and the conduct constituting the violation involved an act by the adult person against his or her spouse or former spouse, against an adult with whom the adult person resides or formerly resided or against an adult with whom the adult person has created a child.

971.37(1m)(a)3. 3. A person accused of or charged with a violation of s. 813.12 (8) (a).

971.37(1m)(b) (b) The agreement shall provide that the prosecution will be suspended for a specified period if the person complies with conditions specified in the agreement. The agreement shall be in writing, signed by the district attorney or his or her designee and the person, and shall provide that the person waives his or her right to a speedy trial and that the agreement will toll any applicable civil or criminal statute of limitations during the period of the agreement, and, furthermore, that the person shall file with the district attorney a monthly written report certifying his or her compliance with the conditions specified in the agreement. The district attorney shall provide the spouse of the accused person and the alleged victim or the parent or guardian of the alleged victim with a copy of the agreement.

971.37(1m)(c) (c)

971.37(1m)(c)1. 1. The agreement may provide as one of its conditions that an adult covered under par. (a) 2. or 3. pay the domestic abuse surcharge under s. 973.055 and, if applicable, the global positioning system tracking surcharge under s. 973.057. If the agreement requires the person to pay the global positioning system tracking surcharge under s. 973.057, the agreement shall also require the person to pay the domestic abuse surcharge under s. 973.055. Payments and collections of the domestic abuse surcharge and the global positioning system tracking surcharge under this subdivision are subject to s. 973.055 (2) to (4) or to s. 973.057 (2) and (3), respectively, except as follows:

971.37(1m)(c)1.a. a. The district attorney shall determine the amount due. The district attorney may authorize less than a full surcharge if he or she believes that full payment would have a negative impact on the offender’s family. The district attorney shall provide the clerk of circuit court with the information necessary to comply with subd. 1. b.

971.37(1m)(c)1.b. b. The clerk of circuit court shall collect the amount due from the person and transmit it to the county treasurer.

971.37(1m)(c)2. 2. If the prosecution is resumed under sub. (2) and the person is subsequently convicted, a court shall give the person credit under s. 973.055 and, if applicable, s. 973.057 for any amount paid under subd. 1.

971.37(2) (2) The written agreement shall be terminated and the prosecution may resume upon written notice by either the person or the district attorney to the other prior to completion of the period of the agreement.

971.37(3) (3) Upon completion of the period of the agreement, if the agreement has not been terminated under sub. (2), the court shall dismiss, with prejudice, any charge or charges against the person in connection with the crime specified in sub. (1m), or if no such charges have been filed, none may be filed.

971.37(4) (4) Consent to a deferred prosecution under this section is not an admission of guilt and the consent may not be admitted in evidence in a trial for the crime specified in sub. (1m), except if relevant to questions concerning the statute of limitations or lack of speedy trial. No statement relating to the crime, made by the person in connection with any discussions concerning deferred prosecution or to any person involved in a program in which the person must participate as a condition of the agreement, is admissible in a trial for the crime specified in sub. (1m).

971.37(5) (5) This section does not preclude use of deferred prosecution agreements for any alleged violations not subject to this section.

971.37 History History: 1979 c. 111; 1981 c. 88, 366; 1983 a. 204; 1987 a. 27; 1987 a. 332 s. 64; 1991 a. 39; 1993 a. 227, 262, 319; 1995 a. 343, 353, 456; 1997 a. 35, 143; 2003 a. 139; 2005 a. 277; 2011 a. 35, 266; 2015 a. 172.

971.37 Annotation The provision of sub. (4) that consent to a deferred prosecution is not an admission of guilt and the consent may not be admitted in evidence in a trial for the crime is not rendered meaningless if an agreement may require an admission of guilt. Sub. (4) means that, should a deferred prosecution agreement be revoked, the defendant’s willingness to enter the agreement may not be admitted at trial as evidence of guilt. When a deferred prosecution agreement requires a defendant to enter a plea as a condition, it is the plea itself and not the agreement that constitutes the acknowledgement of guilt. Indeed, if the agreement is dissolved, the plea remains. State v. Daley, 2006 WI App 81, 292 Wis. 2d 517, 716 N.W.2d 146, 05-0048.

971.375 971.375 Deferred prosecution agreements; sanctions. The district attorney may subject a defendant to sanctions as provided in the system developed under s. 301.03 (3) (a) if the defendant violates a condition of a deferred prosecution agreement.

971.375 History History: 2013 a. 196.

971.38 971.38 Deferred prosecution program; community service work.

971.38(1) (1) Except as provided in s. 967.055 (3), the district attorney may require as a condition of any deferred prosecution program for any crime that the defendant perform community service work for a public agency or a nonprofit charitable organization. The number of hours of work required may not exceed what would be reasonable considering the seriousness of the alleged offense. An order may only apply if agreed to by the defendant and the organization or agency. The district attorney shall ensure that the defendant is provided a written statement of the terms of the community service order and that the community service order is monitored.

971.38(2) (2) Any organization or agency acting in good faith to which a defendant is assigned pursuant to 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 defendant.

971.38 History History: 1981 c. 88; 1987 a. 101.

971.39 971.39 Deferred prosecution program; agreements with department.

971.39(1) (1) Except as provided in s. 967.055 (3), in counties having a population of less than 100,000, if a defendant is charged with a crime, the district attorney, the department and a defendant may all enter into a deferred prosecution agreement which includes, but is not limited to, the following conditions:

971.39(1)(a) (a) The agreement shall be in writing, signed by the district attorney or his or her designee, a representative of the department and the defendant.

971.39(1)(b) (b) The defendant admits, in writing, all of the elements of the crime charged.

971.39(1)(c) (c) The defendant agrees to participate in therapy or in community programs and to abide by any conditions imposed under the therapy or programs.

971.39(1)(d) (d) The department monitors compliance with the deferred prosecution agreement.

971.39(1)(e) (e) The district attorney may resume prosecution upon the defendant’s failure to meet or comply with any condition of a deferred prosecution agreement.

971.39(1)(f) (f) The circuit court shall dismiss, with prejudice, any charge which is subject to the agreement upon the completion of the period of the agreement, unless prosecution has been resumed under par. (e).

971.39(2) (2) Any written admission under sub. (1) (b) and any statement relating to the crime under sub. (1) (intro.), made by the person in connection with any discussions concerning deferred prosecution or to any person involved in a program in which the person must participate as a condition of the agreement, are not admissible in a trial for the crime.

971.39 History History: 1985 a. 29; 1987 a. 101.

971.39 Annotation A judgment entered pursuant to a plea agreement withholding sentence and placing the defendant on probation for certain counts while entry of judgment on other counts was deferred provided the defendant committed no additional crimes and abided by the terms of probation was not a deferred prosecution agreement subject to this section. State v. Wollenberg, 2004 WI App 20, 268 Wis. 2d 810, 674 N.W.2d 916, 03-1706.

971.40 971.40 Deferred prosecution agreement; placement with volunteers in probation program. The court, district attorney and defendant may enter into a deferred prosecution agreement for the defendant to be placed with a volunteers in probation program under s. 973.11. The agreement must include the requirement that the defendant comply with the court’s order under s. 973.11 (1).

971.40 History History: 1991 a. 253.

971.41 971.41 Deferred prosecution program; worthless checks.

971.41(1) (1) Definition. In this section, “offender” means a person charged with, or for whom probable cause exists to charge the person with, a violation of s. 943.24.

971.41(2) (2) Establishment of program; eligibility criteria. A district attorney may create within his or her office a worthless check deferred prosecution program for offenders who agree to participate in it as an alternative to prosecution. The district attorney may establish criteria for determining an offender’s eligibility for the program. Among the factors that the program may use in determining eligibility are the following:

971.41(2)(a) (a) The face value of any check or order that was involved in the offense.

971.41(2)(b) (b) If applicable, the reason why the check or order was dishonored by a financial institution.

971.41(2)(c) (c) Other evidence presented to the district attorney regarding the facts and circumstances of the offense.

971.41(2)(d) (d) The offender’s criminal history.

971.41(2)(e) (e) Prior referrals of the offender to the program.

971.41(2)(f) (f) Whether other charges under s. 943.24 are pending against the offender.

971.41(3) (3) Conditions of program. A deferred prosecution agreement to which this section applies may require an offender to do any of the following:

971.41(3)(a) (a) Pay money owed for the worthless check or other order issued in violation of s. 943.24 to the district attorney for remittance to the payee of the worthless check or order.

971.41(3)(b) (b) Make other payments for restitution for the offense, including payments to reimburse any person for fees assessed by a financial institution in connection with the person attempting to present the worthless check or other order.

971.41(3)(c) (c) Pay administrative fees assessed under sub. (7).

971.41(3)(d) (d) Pay for and successfully complete a class or counseling regarding financial management.

971.41(4) (4) Offenses covered. The deferred prosecution agreement shall specify the offenses for which prosecution is being deferred and shall describe the checks involved in the transactions. The district attorney shall agree not to prosecute those offenses while the agreement remains in effect or afterward if the offender successfully completes the deferred prosecution program.

971.41(5) (5) Private contractor operation of program.

971.41(5)(a) (a) A district attorney who establishes a deferred prosecution program under this section may contract with a private entity to operate or administer all or part of the program under the supervision, direction, and control the district attorney.

971.41(5)(b) (b) A private entity acting under this subsection shall maintain insurance, financial accounting controls, and fund disbursement procedures as required by the district attorney. The district attorney shall audit the accounts of the private entity, but only after providing written notice.

971.41(5)(c) (c) If an offender who is the subject of a deferred prosecution agreement under this section is represented by an attorney, a private entity acting under this subsection may communicate directly with the offender if any of the following apply:

971.41(5)(c)1. 1. The attorney has not informed the private entity of his or her representation in writing.

971.41(5)(c)2. 2. The attorney has authorized the communication.

971.41(5)(c)3. 3. The private entity has requested authorization for the communication from the attorney, but the attorney has failed to respond to that request within a reasonable period of time.

971.41(5)(d) (d) A district attorney may cancel a contract entered into with a private entity under this subsection if any of the following occur:

971.41(5)(d)1. 1. The private entity or a principal of the private entity is convicted of any of the following:

971.41(5)(d)1.a. a. A felony under any state or federal law.

971.41(5)(d)1.b. b. A misdemeanor under any state or federal law if proof of the defendant’s dishonesty is an essential element of the offense or if the offense relates to debt collection.