Chapter 973

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.

973.03(4)(d) (d) A sentence under this subsection is not a sentence of imprisonment, except for purposes of ss. 973.04, 973.15 (8) (a) and 973.19.

973.03(5) (5) 

973.03(5)(a) (a) In this subsection:

973.03(5)(a)1. 1. “Commission of a serious crime” has the meaning given under s. 969.08 (10) (a).

973.03(5)(a)2. 2. “Serious crime” has the meaning given under s. 969.08 (10) (b).

973.03(5)(b) (b) In lieu of a continuous sentence, a court may sentence a person to serve a series of periods, not less than 48 hours nor more than 3 days for each period, of imprisonment in a county jail. The person is not subject to confinement between periods of imprisonment.

973.03(5)(c) (c) A court may not sentence a person under par. (b) regarding any violation under ch. 961 or the commission of a serious crime.

973.03 History History: 1971 c. 298; 1983 a. 110, 192; 1985 a. 150; 1987 a. 27; 1987 a. 332 s. 64; 1987 a. 398, 399; 1989 a. 31, 85; 1993 a. 48; 1995 a. 281, 448; 2001 a. 109; 2007 a. 178.

973.032 973.032 Sentence to intensive sanctions program.

973.032(1) (1) Sentence. Beginning July 1, 1992, a court may sentence a person who is convicted of a felony occurring on or after August 15, 1991, but before December 31, 1999, to participate in the intensive sanctions program under s. 301.048. If a person is convicted of a felony occurring on or after December 31, 1999, a court may not sentence the person to participate in the intensive sanctions program under s. 301.048.

973.032(2) (2) Eligibility.

973.032(2)(a) (a) A court may sentence a person under sub. (1) if the department provides a presentence investigation report recommending that the person be sentenced to the program. If the department does not make the recommendation, a court may order the department to assess and evaluate the person. After that assessment and evaluation, the court may sentence the person to the program unless the department objects on the ground that it recommends that the person be placed on probation.

973.032(2)(b) (b) Notwithstanding par. (a), the court may not sentence a person under sub. (1) if he or she is convicted of a felony punishable by life imprisonment or has at any time been convicted, adjudicated delinquent or found not guilty or not responsible by reason of insanity or mental disease, defect or illness for committing a violent offense, as defined in s. 301.048 (2) (bm).

973.032(3) (3) Limitations. The following apply to a sentence under sub. (1):

973.032(3)(a) (a) The court shall provide a maximum period for the sentence, which may not exceed the maximum term of imprisonment that could be imposed on the person, including imprisonment authorized by any penalty enhancement statute.

973.032(3)(b) (b) The court shall provide a maximum period for placements under s. 301.048 (3) (a) 1., which may not exceed one year unless the defendant waives this requirement.

973.032(3)(c) (c)

973.032(3)(c)1. 1. In this paragraph, “Type 1 prison” has the meaning given in s. 301.01 (5).

973.032(3)(c)2. 2. The court may prescribe reasonable and necessary conditions of the sentence in accordance with s. 301.048 (3), except the court may not specify a particular Type 1 prison, jail, camp or facility where the offender is to be placed under s. 301.048 (3) (a) and the court may not restrict the department’s authority under s. 301.048 (3) (b) or (c).

973.032(4) (4) Modification.

973.032(4)(a) (a) The department may provide for placements under s. 301.048 (3) (a) for a shorter period than the maximum period specified by the court under sub. (3) (b).

973.032(4)(b) (b) The department may request that the court extend the maximum period provided by the court under sub. (3) (a) or the maximum period provided by the court under sub. (3) (b) or both. Unless a hearing is voluntarily waived by the person, the court shall hold a hearing on the matter. The court may not extend the maximum period of the sentence beyond the amount allowable under sub. (3) (a). Except as provided in par. (c), the court may not extend the maximum period for placements under s. 301.048 (3) (a) 1. beyond a total, including the original period and all extensions, of 2 years or two-thirds of the maximum term of imprisonment that could have been imposed on the person, whichever is less.

973.032(4)(c) (c) The court may extend under par. (b) the maximum period for placements under s. 301.048 (3) (a) 1. to a period not exceeding two-thirds of the maximum term of imprisonment that could have been imposed on the person under sub. (3) (a) for his or her sentence to the intensive sanctions program if all of the following apply:

973.032(4)(c)1. 1. The person escaped from a sentence to the intensive sanctions program.

973.032(4)(c)2. 2. The person is sentenced for the escape to a sentence of imprisonment concurrent with the sentence to the intensive sanctions program.

973.032(4)(c)3. 3. The sentence under subd. 2. exceeds the total of the maximum period originally provided by the court under sub. (3) (b) for the sentence to the intensive sanctions program and the maximum extensions available under par. (b).

973.032(5) (5) Parole restrictions. A person sentenced under sub. (1) is eligible for parole except as provided in ss. 302.11, 304.02 and 304.06.

973.032(6) (6) Credit. Any sentence credit under s. 973.155 (1) or (1m) applies toward service of the period under sub. (3) (a) but does not apply toward service of the period under sub. (3) (b).

973.032 History History: 1991 a. 39; 1993 a. 79; 1995 a. 27, 390; 1997 a. 283; 1999 a. 9, 185; 2001 a. 109; 2005 a. 25.

973.032 Annotation When a presentence investigation recommends it, nothing prohibits a court from sentencing a person to the intensive sanctions program although the sentencing guidelines would recommend probation. State v. Miller, 180 Wis. 2d 320, 509 N.W.2d 98 (Ct. App. 1993).

973.032 Annotation An extension of confinement under this provision may be appealed by common law writ of certiorari. The time for appeal is governed by s. 808.04. State v. Bridges, 195 Wis. 2d 254, 536 N.W.2d 153 (Ct. App. 1995), 94-0880.

973.032 Annotation The extension of a placement period under the intensive sanctions program must be based on public safety considerations and the participant’s need for punishment and treatment. All that needs to be shown at an extension hearing is that the participant has not made sufficient progress in the program and that more time is required to meet those concerns. State v. Turner, 200 Wis. 2d 168, 546 N.W.2d 880 (Ct. App. 1996), 95-1295.

973.032 Annotation The right, under s. 972.14 (2), of a defendant to make a statement prior to sentencing does not apply to an extension of a placement under the intensive sanctions program. State v. Turner, 200 Wis. 2d 168, 546 N.W.2d 880 (Ct. App. 1996), 95-1295.

973.032 Annotation Intensive Sanctions: A New Sentencing Option. Fiedler. Wis. Law. June 1992.

973.0335 973.0335 Sentencing; restriction on possession of body armor. Whenever a court imposes a sentence or places a defendant on probation for a conviction for a violent felony, as defined in s. 941.291 (1) (b), the court shall inform the defendant of the requirements and penalties under s. 941.291.

973.0335 History History: 2001 a. 95.

973.035 973.035 Transfer to state-local shared correctional facilities. Any person serving a sentence of imprisonment to the Wisconsin state prisons, a county jail, a county reforestation camp or a county house of correction or serving a sentence to the intensive sanctions program may be transferred to a state-local shared correctional facility under s. 302.45 (1).

973.035 History History: 1983 a. 332; 1989 a. 31; 1991 a. 39.

973.04 973.04 Credit for imprisonment under earlier sentence for the same crime. When a sentence is vacated and a new sentence is imposed upon the defendant for the same crime, the department shall credit the defendant with confinement previously served.

973.04 History History: 1983 a. 66, 528.

973.04 Annotation While periods of time served due to an indigent’s inability to post bail prior to trial must be credited as time served on a prison sentence imposed, a court need not credit time served by an indigent offender against probationary confinement. State v. Avila, 192 Wis. 2d 870, 532 N.W.2d 423 (1995).

973.04 Annotation An offender is not entitled to additional sentence credit under this section when: 1) the vacated sentence was originally imposed concurrent to a separate sentence; 2) the separate sentence is not vacated; 3) the vacated sentence is reimposed consecutively to the non-vacated sentence; and 4) the time that the defendant requested was served in satisfaction of the sentence that was not vacated. State v. Lamar, 2011 WI 50, 334 Wis. 2d 536, 799 N.W.2d 758, 08-2206.

973.042 973.042 Child pornography surcharge.

973.042(1) (1) In this section, “image” includes a video recording, a visual representation, a positive or negative image on exposed film, and data representing a visual image.

973.042(2) (2) If a court imposes a sentence or places a person on probation for a crime under s. 948.05, 948.12, or 948.125 and the person was at least 18 years of age when the crime was committed, the court shall impose a child pornography surcharge of $500 for each image or each copy of an image associated with the crime. The court shall determine the number of images or copies of images associated with the crime by a preponderance of the evidence and without a jury.

973.042(4) (4) After determining the amount due, the clerk of court shall collect and transmit the amount to the county treasurer under s. 59.40 (2) (m). The county treasurer shall then make payment to the secretary of administration under s. 59.25 (3) (f) 2.

973.042(5) (5) The secretary of administration shall credit the surcharge to the appropriation account under s. 20.455 (5) (gj).

973.042(6) (6) If an inmate in a state prison or a person sentenced to a state prison has not paid the child pornography surcharge under this section, the department shall assess and collect the amount owed from the inmate’s wages or other moneys. Any amount collected under this subsection shall be transmitted to the secretary of administration.

973.042 History History: 2005 a. 433; 2013 a. 20; 2023 a. 224.

973.042 Annotation The child pornography surcharge under sub. (2) is not punitive. Under the intent-effects test, the primary function of the child pornography surcharge statute is not punitive nor is the child pornography surcharge punitive in effect. The surcharge is linked to funding of investigations of sexual exploitation of children and possession of child pornography and grants to eligible public agencies or nonprofit organizations that provide counseling services to victims of sexual assault. Therefore, the circuit court in this case did not need to inform the defendant of the child pornography surcharge during the plea colloquy. State v. Schmidt, 2021 WI 65, 397 Wis. 2d 758, 960 N.W.2d 888, 20-0616.

973.042 Annotation The child pornography surcharge under sub. (2) applies to every image of child pornography that forms the basis of a charge of sexual exploitation of a child or possession of child pornography, regardless of whether those images form the basis of either a convicted charge or a read-in charge, so long as those images of child pornography are connected to and brought into relation with the convicted individual’s offense of sexual exploitation of a child or possession of child pornography. A circuit court must impose the child pornography surcharge for those images. State v. Schmidt, 2021 WI 65, 397 Wis. 2d 758, 960 N.W.2d 888, 20-0616.

973.043 973.043 Drug offender diversion surcharge.

973.043(1) (1) If a court imposes a sentence or places a person on probation for a crime under ch. 943 that was committed on or after October 1, 2005, the court shall impose a drug offender diversion surcharge of $10 for each conviction.

973.043(2) (2) After determining the amount due, the clerk of court shall collect and transmit the amount to the county treasurer under s. 59.40 (2) (m). The county treasurer shall then make payment to the secretary of administration under s. 59.25 (3) (f) 2.

973.043(3) (3) All moneys collected from drug offender diversion surcharges shall be credited to the appropriation account under s. 20.455 (2) (kv) and used for the purpose of making grants to counties under s. 165.95.

973.043(4) (4) If an inmate in a state prison or a person sentenced to a state prison has not paid the drug offender diversion surcharge under this section, the department shall assess and collect the amount owed from the inmate’s wages or other moneys. Any amount collected shall be transmitted to the secretary of administration.

973.043 History History: 2005 a. 25; 2013 a. 20.

973.045 973.045 Crime victim and witness assistance surcharge.

973.045(1) (1) If a court imposes a sentence or places a person on probation, the court shall impose a crime victim and witness assistance surcharge. A surcharge imposed under this subsection may not be waived, reduced, or forgiven for any reason. The surcharge is the total amount calculated by adding up the amount for every misdemeanor count and every felony count as follows: