Chapter 973

973.015 Annotation The relief of vacating and setting a judgment aside under s. 974.06 (3) (d) is designed to address defects with respect to a conviction or sentence, not to provide a second chance or a fresh start as is intended by this section, the expunction statute. Vacatur invalidates the conviction itself, whereas expunction merely deletes the evidence of the underlying conviction from court records. Expunction does not invalidate a conviction. State v. Braunschweig, 2018 WI 113, 384 Wis. 2d 742, 921 N.W.2d 199, 17-1261.

973.015 Annotation The phrase “conditions of probation” in sub. (1m) (b) means conditions set by both the Department of Corrections and the sentencing court, and the provision does not give a circuit court discretionary authority to declare that an individual has “satisfied” the individual’s conditions of probation if the record demonstrates that the individual has violated one or more conditions of probation, including department-imposed conditions. State v. Lickes, 2021 WI 60, 397 Wis. 2d 586, 960 N.W.2d 855, 19-1272.

973.015 Annotation “Expunge” under this section means to strike or obliterate from the record all references to the defendant’s name and identity. 67 Atty. Gen. 301.

973.015 Annotation Circuit courts do not possess inherent powers to expunge or destroy conviction records. 70 Atty. Gen. 115.

973.015 Annotation A Path to Protection: Collateral Crime Vacatur for Wisconsin’s Victims of Sex Trafficking. Mullins. 2019 WLR 1551.

973.017 973.017 Bifurcated sentences; use of guidelines; consideration of aggravating and mitigating factors.

973.017(1) (1) Definition. In this section, “sentencing decision” means a decision as to whether to impose a bifurcated sentence under s. 973.01 or place a person on probation and a decision as to the length of a bifurcated sentence, including the length of each component of the bifurcated sentence, the amount of a fine, and the length of a term of probation.

973.017(2) (2) General requirement. When a court makes a sentencing decision concerning a person convicted of a criminal offense committed on or after February 1, 2003, the court shall consider all of the following:

973.017(2)(ad) (ad) The protection of the public.

973.017(2)(ag) (ag) The gravity of the offense.

973.017(2)(ak) (ak) The rehabilitative needs of the defendant.

973.017(2)(b) (b) Any applicable mitigating factors and any applicable aggravating factors, including the aggravating factors specified in subs. (3) to (8).

973.017(3) (3) Aggravating factors; generally. When making a sentencing decision for any crime, the court shall consider all of the following as aggravating factors:

973.017(3)(a) (a) The fact that the person committed the crime while his or her usual appearance was concealed, disguised, or altered, with the intent to make it less likely that he or she would be identified with the crime.

973.017(3)(b) (b) The fact that the person committed the crime using information that was disclosed to him or her under s. 301.46.

973.017(3)(c) (c) The fact that the person committed the crime for the benefit of, at the direction of, or in association with any criminal gang, as defined in s. 939.22 (9), with the specific intent to promote, further, or assist in any criminal conduct by criminal gang members, as defined in s. 939.22 (9g).

973.017(3)(d) (d) The fact that the person committed the felony while wearing a vest or other garment designed, redesigned, or adapted to prevent bullets from penetrating the garment.

973.017(3)(e) (e)

973.017(3)(e)1. 1. Subject to subd. 2., the fact that the person committed the felony with the intent to influence the policy of a governmental unit or to punish a governmental unit for a prior policy decision, if any of the following circumstances also applies to the felony committed by the person:

973.017(3)(e)1.a. a. The person caused bodily harm, great bodily harm, or death to another.

973.017(3)(e)1.b. b. The person caused damage to the property of another and the total property damaged is reduced in value by $25,000 or more. For the purposes of this subd. 1. b., property is reduced in value by the amount that it would cost either to repair or to replace it, whichever is less.

973.017(3)(e)1.c. c. The person used force or violence or the threat of force or violence.

973.017(3)(e)2. 2.

973.017(3)(e)2.a. a. In this subdivision, “labor dispute” includes any controversy concerning terms, tenure, or conditions of employment or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.

973.017(3)(e)2.b. b. Subdivision 1. does not apply to conduct arising out of or in connection with a labor dispute.

973.017(4) (4) Aggravating factors; serious sex crimes committed while infected with certain diseases.

973.017(4)(a) (a) In this subsection:

973.017(4)(a)1. 1. “HIV” means any strain of human immunodeficiency virus, which causes acquired immunodeficiency syndrome.

973.017(4)(a)1m. 1m. “HIV test” has the meaning given in s. 252.01 (2m).

973.017(4)(a)2. 2. “Serious sex crime” means a violation of s. 940.225 (1) or (2), 948.02 (1) or (2), 948.025, 948.085.

973.017(4)(a)3. 3. “Sexually transmitted disease” means syphilis, gonorrhea, hepatitis B, hepatitis C, or chlamydia.

973.017(4)(a)4. 4. “Significantly exposed” means sustaining a contact that carries a potential for transmission of a sexually transmitted disease or HIV by one or more of the following:

973.017(4)(a)4.a. a. Transmission, into a body orifice or onto mucous membrane, of blood; semen; vaginal secretions; cerebrospinal, synovial, pleural, peritoneal, pericardial, or amniotic fluid; or other body fluid that is visibly contaminated with blood.

973.017(4)(a)4.b. b. Exchange, during the accidental or intentional infliction of a penetrating wound, including a needle puncture, of blood; semen; vaginal secretions; cerebrospinal, synovial, pleural, peritoneal, pericardial, or amniotic fluid; or other body fluid that is visibly contaminated with blood.

973.017(4)(a)4.c. c. Exchange, into an eye, an open wound, an oozing lesion, or other place where a significant breakdown in the epidermal barrier has occurred, of blood; semen; vaginal secretions; cerebrospinal, synovial, pleural, peritoneal, pericardial, or amniotic fluid; or other body fluid that is visibly contaminated with blood.

973.017(4)(b) (b) When making a sentencing decision concerning a person convicted of a serious sex crime, the court shall consider as an aggravating factor the fact that the serious sex crime was committed under all of the following circumstances:

973.017(4)(b)1. 1. At the time that he or she committed the serious sex crime, the person convicted of committing the serious sex crime had a sexually transmitted disease or acquired immunodeficiency syndrome or had had a positive HIV test.

973.017(4)(b)2. 2. At the time that he or she committed the serious sex crime, the person convicted of committing the serious sex crime knew that he or she had a sexually transmitted disease or acquired immunodeficiency syndrome or that he or she had had a positive HIV test.

973.017(4)(b)3. 3. The victim of the serious sex crime was significantly exposed to HIV or to the sexually transmitted disease, whichever is applicable, by the acts constituting the serious sex crime.

973.017(5) (5) Aggravating factors; violent felony committed against elder person.

973.017(5)(a) (a) In this subsection:

973.017(5)(a)1. 1. “Elder person” means any individual who is 62 years of age or older.

973.017(5)(a)2. 2. “Violent felony” means any felony under s. 940.19 (2), (4), (5), or (6), 940.225 (1), (2), or (3), 940.23, or 943.32.

973.017(5)(b) (b) When making a sentencing decision concerning a person convicted of a violent felony, the court shall consider as an aggravating factor the fact that the victim of the violent felony was an elder person. This paragraph applies even if the person mistakenly believed that the victim had not attained the age of 62 years.

973.017(6) (6) Aggravating factors; child sexual assault or child abuse by certain persons.

973.017(6)(a) (a) In this subsection, “person responsible for the welfare of the child” includes the child’s parent, stepparent, guardian, or foster parent; an employee of a public or private residential home, institution, or agency; any other person legally responsible for the child’s welfare in a residential setting; or a person employed by one who is legally responsible for the child’s welfare to exercise temporary control or care for the child.

973.017(6)(b) (b) When making a sentencing decision concerning a person convicted of a violation of s. 948.02 (1) or (2), 948.025 (1), 948.03 (2), (3), or (5) (a) 1., 2., 3., or 4., or 948.051, the court shall consider as an aggravating factor the fact that the person was a person responsible for the welfare of the child who was the victim of the violation.

973.017(6m) (6m) Aggravating factors; domestic abuse in presence of a child.

973.017(6m)(a) (a) In this subsection:

973.017(6m)(a)1. 1. “Child” means an individual who has not attained the age of 18 years.

973.017(6m)(a)2. 2. “Domestic abuse” has the meaning given in s. 968.075 (1) (a).

973.017(6m)(b) (b) When making a sentencing decision concerning a person convicted of a crime that involves an act of domestic abuse, the court shall consider as an aggravating factor the fact that the act was committed in a place or a manner in which the act was observable by or audible to a child or was in the presence of a child and the actor knew or had reason to know that the act was observable by or audible to a child or was in the presence of a child.

973.017(7) (7) Aggravating factors; homicide or injury by intoxicated use of a vehicle. When making a sentencing decision concerning a person convicted of a violation of s. 940.09 (1) or 940.25 (1), the court shall consider as an aggravating factor the fact that, at the time of the violation, there was a minor passenger under 16 years of age or an unborn child in the person’s motor vehicle.

973.017(8) (8) Aggravating factors; controlled substances offenses.

973.017(8)(a) (a) Distribution or delivery to prisoners.

973.017(8)(a)1. 1. In this paragraph, “precinct” means a place where any activity is conducted by a prison, jail, or house of correction.

973.017(8)(a)2. 2. When making a sentencing decision concerning a person convicted of violating s. 961.41 (1) or (1m), the court shall consider as an aggravating factor the fact that the violation involved delivering, distributing, or possessing with intent to deliver or distribute a controlled substance or controlled substance analog to a prisoner within the precincts of any prison, jail, or house of correction.

973.017(8)(a)3. 3. When making a sentencing decision concerning a person convicted of violating s. 961.65, the court shall consider as an aggravating factor the fact that the person intended to deliver or distribute methamphetamine or a controlled substance analog of methamphetamine to a prisoner within the precincts of any prison, jail, or house of correction.

973.017(8)(b) (b) Distribution or delivery on public transit vehicles. When making a sentencing decision concerning a person convicted of violating s. 961.41 (1) or (1m), the court shall consider as an aggravating factor the fact that the violation involved delivering, distributing, or possessing with intent to deliver or distribute a controlled substance included in schedule I or II or a controlled substance analog of any controlled substance included in schedule I or II and that the person knowingly used a public transit vehicle during the violation.

973.017(8)(c) (c) Distribution or delivery of methamphetamine on public transit vehicles. When making a sentencing decision concerning a person convicted of violating s. 961.65, the court shall consider as an aggravating factor the fact that the person intended to deliver or distribute methamphetamine or a controlled substance analog of methamphetamine and that the person knowingly used a public transit vehicle during the violation.

973.017(9) (9) Aggravating factors not an element of the crime. The aggravating factors listed in this section are not elements of any crime. A prosecutor is not required to charge any aggravating factor or otherwise allege the existence of an aggravating factor in any pleading for a court to consider the aggravating factor when making a sentencing decision.

973.017(10m) (10m) Statement of reasons for sentencing decision.

973.017(10m)(a) (a) The court shall state the reasons for its sentencing decision and, except as provided in par. (b), shall do so in open court and on the record.

973.017(10m)(b) (b) If the court determines that it is not in the interest of the defendant for it to state the reasons for its sentencing decision in the defendant’s presence, the court shall state the reasons for its sentencing decision in writing and include the written statement in the record.

973.017 History History: 2001 a. 109; 2003 a. 321; 2005 a. 14, 277; 2007 a. 20, 96, 97, 116; 2009 a. 28, 209; 2011 a. 273; 2013 a. 165; 2015 a. 366.

973.017 Annotation Under sub. (10m), a circuit court must state the reasons for its sentencing decision on the record. Under the erroneous exercise of discretion standard, the circuit court’s determination will be upheld on appeal if it is a reasonable conclusion, based upon a consideration of the appropriate law and facts of record. State v. Salas Gayton, 2016 WI 58, 370 Wis. 2d 264, 882 N.W.2d 459, 13-0646.

973.017 Annotation The circuit court’s obligation to consider a required factor under sub. (2) (ad) to (ak) on the record is distinct from the court’s discretion to determine the factor’s appropriate weight once the court has considered all factors. While a court may, in the proper exercise of discretion, decide to give a required factor little or no weight, the court may not decide to not consider a required factor at all. State v. Bolstad, 2021 WI App 81, 399 Wis. 2d 815, 967 N.W.2d 164, 21-0049.

973.017 Annotation A circuit court erroneously exercises its sentencing discretion when it actually relies on clearly irrelevant or improper factors. Accordingly, a defendant challenging the defendant’s sentence must prove by clear and convincing evidence that: 1) the challenged factor is irrelevant or improper; and 2) the circuit court actually relied on that factor. Under the improper-factor prong, sentencing factors are proper when they inform valid sentencing objectives including the protection of the community, punishment of the defendant, rehabilitation of the defendant, and deterrence to others. A circuit court may properly entertain a general predisposition, based upon the court’s criminal sentencing experience, so long as that predisposition is not so specific or rigid that it ignores the particular circumstances of the individual offender. Under the actual-reliance prong, the appeals court reviews the sentencing transcript as a whole and assesses any allegedly improper comments within that context. A defendant will fall short of proving actual reliance if the transcript lacks clear and convincing evidence that the factor was the sole cause of a harsher sentence. A defendant will also fail to show actual reliance if a reference to a challenged factor bears a reasonable nexus to a relevant, proper factor. State v. Dodson, 2022 WI 5, 400 Wis. 2d 313, 969 N.W.2d 225, 18-1476.

973.017 Annotation While a defendant has a due process right to be present at the sentencing, it does not necessarily follow that due process requires that the defendant be present when the sentencing court provides its reasons for its sentencing decision, particularly when the court is required to make the written statement of its sentencing rationale a part of the record and thus available to the defendant. At the point at which the court provides the rationale for the sentence imposed, the defendant has no further opportunity to contribute to the court’s decision. In this case, the process in sub. (10m) (b), which allows the court to state the reasons for its sentencing decision in writing, was not unconstitutional as applied to the defendant. State v. McReynolds, 2022 WI App 25, 402 Wis. 2d 175, 975 N.W.2d 265, 21-0943.

973.02 973.02 Place of imprisonment when none expressed. Except as provided in s. 973.032, if a statute authorizes imprisonment for its violation but does not prescribe the place of imprisonment, a sentence of less than one year shall be to the county jail, a sentence of more than one year shall be to the Wisconsin state prisons and the minimum under the indeterminate sentence law shall be one year, and a sentence of one year may be to either the Wisconsin state prisons or the county jail. In any proper case, sentence and commitment may be to the department or any house of correction or other institution as provided by law or to detention under s. 973.03 (4).

973.02 History History: 1973 c. 90; 1987 a. 27; 1991 a. 39.

973.02 Annotation The legislature is presumed to have been aware of many existing statutes carrying sentences of one year or less with no place of confinement specified when it enacted the predecessor to this section as ch. 154, laws of 1945. State ex rel. McDonald v. Circuit Court, 100 Wis. 2d 569, 302 N.W.2d 462 (1981).

973.02 Annotation Criminal defendants who receive consecutive sentences that in the aggregate exceed one year, but individually are all less than one year, should be incarcerated in county jails rather than the Wisconsin prison system. 78 Atty. Gen. 44.

973.03 973.03 Jail sentence.

973.03(1) (1) If at the time of passing sentence upon a defendant who is to be imprisoned in a county jail there is no jail in the county suitable for the defendant and no cooperative agreement under s. 302.44, the court may sentence the defendant to any suitable county jail in the state. The expenses of supporting the defendant there shall be borne by the county in which the crime was committed.

973.03(2) (2) A defendant sentenced to the Wisconsin state prisons and to a county jail or house of correction for separate crimes shall serve all sentences whether concurrent or consecutive in the state prisons.

973.03(3) (3) 

973.03(3)(a) (a) If a court sentences a defendant to imprisonment in the county jail, the court may provide that the defendant perform community service work under pars. (b) and (c). Except as provided in par. (am), the defendant earns good time at a rate of one day for each 3 days of work performed. A day of work equals 8 hours of work performed. This good time is in addition to good time authorized under s. 302.43.

973.03(3)(am) (am) If a court provides that a defendant may perform community service work pursuant to par. (a) and the defendant is sentenced to probation or imprisonment in a Huber facility under s. 303.09, or if a defendant has been ordered to perform community service work under s. 800.09, a county may, with the approval of the chief judge in the county, allow the defendant to perform community service work under pars. (b) and (c). The county may determine the rate at which all defendants in the county earn good time, except that a defendant may not earn less than one day of good time for every 3 days of work performed, nor more than one day of good time for each day of work performed. A day of work equals 8 hours of work performed. This good time is in addition to good time authorized under s. 302.43.

973.03(3)(b) (b) The court may require 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 offense and any other offense which is read into the record at the time of conviction. An order may only apply if agreed to by the defendant and the organization or agency. The court 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.

973.03(3)(c) (c) Any organization or agency acting in good faith to which a defendant is assigned pursuant to an order under this subsection has immunity from any civil liability in excess of $25,000 for acts or omissions by or impacting on the defendant.

973.03(3)(d) (d) This subsection applies to persons who are sentenced to a county jail but are transferred to a Huber facility under s. 303.09, to a county work camp under s. 303.10 or to a tribal jail under s. 302.445.

973.03(3)(e) (e) A court may not provide that a defendant perform community service work under this subsection if the defendant is being sentenced regarding any of the following:

973.03(3)(e)1. 1. A crime which is a Class A, B, or C felony.

973.03(3)(e)2. 2. A crime which is a Class D, E, F, or G felony listed in s. 969.08 (10) (b), but not including any crime specified in s. 943.10.

973.03(4) (4) 

973.03(4)(a) (a) In lieu of a sentence of imprisonment to the county jail, a court may impose a sentence of detention at the defendant’s place of residence or other place designated by the court. The length of detention may not exceed the maximum possible period of imprisonment. The detention shall be monitored by the use of an electronic device worn continuously on the defendant’s person and capable of providing positive identification of the wearer at the detention location at any time. A sentence of detention in lieu of jail confinement may be imposed only if agreed to by the defendant. The court shall ensure that the defendant is provided a written statement of the terms of the sentence of detention, including a description of the detention monitoring procedures and requirements and of any applicable liability issues. The terms of the sentence of detention may include a requirement that the defendant pay a daily fee to cover the costs associated with monitoring him or her. In that case, the terms must specify to whom the payments are made.

973.03(4)(b) (b) A person sentenced to detention under par. (a) is eligible to earn good time in the amount of one-fourth of his or her term for good behavior if sentenced to at least 4 days, but fractions of a day shall be ignored. The person shall be given credit for time served prior to sentencing under s. 973.155, including good time under s. 973.155 (4). If the defendant fails to comply with the terms of the sentence of detention, the court may order the defendant brought before the court and the court may order the defendant deprived of good time.

973.03(4)(c) (c) If the defendant fails to comply with the terms of the sentence of detention, the court may order the defendant brought before the court and the court may order that the remainder of the sentence of detention be served in the county jail.