Chapter 973

973.05 History History: 1977 c. 29; 1979 c. 34, 111; 1981 c. 20, 88, 352; 1983 a. 27, 535; 1985 a. 36; 1987 a. 27, 339, 398; 1989 a. 64, 107, 359; 1991 a. 39; 1993 a. 16; 1995 a. 227, 438, 448; 1997 a. 3, 27, 35, 148, 248; 1999 a. 9, 32; 2001 a. 16, 56, 105; 2003 a. 139; 2005 a. 25, 149, 282, 433; 2005 a. 443 s. 265; 2007 a. 20, 97; 2009 a. 28, 100; 2011 a. 32, 266; 2013 a. 20; 2015 a. 55.

973.05 Annotation Sub. (1), permitting a delay of 60 days for payment of a fine, and s. 973.07, providing commitment to jail for nonpayment, are constitutional since the court may stay the sentence and put the defendant on probation. The burden of proving inability to pay is on the defendant. State ex rel. Pedersen v. Blessinger, 56 Wis. 2d 286, 201 N.W.2d 778 (1972).

973.05 Annotation Trial courts are encouraged to use the installment method when dealing with indigent defendants; the installment period may exceed 60 days. Will v. State, 84 Wis. 2d 397, 267 N.W.2d 357 (1978).

973.05 Annotation After the defendant raised the issue of ability to pay a fine in a postconviction motion, a hearing was necessary to avoid an unconstitutional application of the statutes. The court should consider: 1) the financial resources of the defendant and the burden that payment will impose; 2) the ability of the defendant to pay on an installment basis or on other conditions to be fixed by the court; 3) the extent to which payment will interfere with the ability of the defendant to make any ordered restitution or reparation to the victim; and 4) whether there are particular reasons that make a fine appropriate as a deterrent or corrective measure. State v. Kuechler, 2003 WI App 245, 268 Wis. 2d 192, 673 N.W.2d 335, 02-1205.

973.05 Annotation When a court’s sentencing colloquy supports both imprisonment and a fine, no separate explanation of the fine is needed. State v. Vesper, 2018 WI App 31, 382 Wis. 2d 207, 912 N.W.2d 418, 17-0173.

973.05 Annotation Sub. (4) (b) controls what the sentencing court can order the clerk of court to assess from a defendant’s wages and other money if the defendant fails to pay a surcharge within a specified time period following sentencing. Nothing in the language of this statute imposes any limitation on the Department of Corrections or suggests that a sentencing court’s authority under this statute limits or overrides the authority of the department, which is unambiguously expressed in ss. 165.755 (6) and 973.046 (4). State ex rel. Bryson v. Carr, 2022 WI App 34, 404 Wis. 2d 307, 978 N.W.2d 595, 20-1949.

973.05 Annotation A court cannot impose probation or order a defendant to perform community work in lieu of imposing a statutorily required minimum jail sentence. 71 Atty. Gen. 41.

973.055 973.055 Domestic abuse surcharges.

973.055(1) (1) If a court imposes a sentence on an adult person or places an adult person on probation, regardless of whether any fine is imposed, the court shall impose a domestic abuse surcharge under ch. 814 of $100 for each offense if:

973.055(1)(a) (a)

973.055(1)(a)1. 1. The court convicts the person of a violation of a crime specified in s. 940.01, 940.02, 940.03, 940.05, 940.06, 940.19, 940.20 (1m), 940.201, 940.21, 940.225, 940.23, 940.235, 940.285, 940.30, 940.305, 940.31, 940.32, 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 or of a municipal ordinance conforming to s. 940.201, 941.20, 941.30, 943.01, 943.011, 943.14, 943.15, 946.49, 947.01 (1), 947.012 or 947.0125; and

973.055(1)(a)2. 2. The court finds that the conduct constituting the violation under subd. 1. 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; or

973.055(1)(b) (b) The court convicts a person under s. 813.12 (8) (a) or a conforming municipal ordinance.

973.055(2) (2) 

973.055(2)(a) (a) If the surcharge is imposed by a court of record, after the court determines the amount due, the clerk of the court shall collect and transmit the amount to the county treasurer as provided in s. 59.40 (2) (m). The county treasurer shall then make payment to the secretary of administration as provided in s. 59.25 (3) (f) 2.

973.055(2)(b) (b) If the surcharge is imposed by a municipal court, after a determination by the court of the amount due, the court shall collect and transmit the amount to the treasurer of the county, city, town, or village, and that treasurer shall make payment to the secretary of administration as provided in s. 66.0114 (1) (bm).

973.055(3) (3) All moneys collected from domestic abuse surcharges shall be deposited by the secretary of administration in s. 20.437 (1) (hh) and utilized in accordance with s. 49.165.

973.055(4) (4) A court may waive part or all of the domestic abuse surcharge under this section if it determines that the imposition of the full surcharge would have a negative impact on the offender’s family.

973.055 History History: 1979 c. 111; 1979 c. 221 s. 2202 (20); 1979 c. 355; 1981 c. 20 s. 2202 (20) (s); 1983 a. 27 s. 2202 (20); 1987 a. 27; 1989 a. 31; 1991 a. 39; 1993 a. 262, 319; 1995 a. 27, 201, 343, 353; 1997 a. 27, 35, 143; 1999 a. 150 s. 672; 1999 a. 185; 2001 a. 16; 2003 a. 33, 139, 225, 326, 327; 2007 a. 20, 97, 127; 2011 a. 35; 2013 a. 362.

973.057 973.057 Global positioning system tracking surcharge.

973.057(1) (1) If a court convicts a person under s. 813.12 or 813.125, or a conforming municipal ordinance, the court shall impose a global positioning system tracking surcharge under ch. 814 of $200 for each offense.

973.057(2) (2) 

973.057(2)(a) (a) If the surcharge is imposed by a court of record, after the court determines the amount due, the clerk of the court shall collect and transmit the amount to the county treasurer as provided in s. 59.40 (2) (m). The county treasurer shall then make payment to the secretary of administration as provided in s. 59.25 (3) (f) 2.

973.057(2)(b) (b) If the surcharge is imposed by a municipal court, after a determination by the court of the amount due, the court shall collect and transmit the amount to the treasurer of the county, city, town, or village, and that treasurer shall make payment to the secretary of administration as provided in s. 66.0114 (1) (bm).

973.057(3) (3) All moneys collected from global positioning system tracking surcharges shall be deposited by the secretary of administration in s. 20.410 (1) (gL) and utilized in accordance with s. 301.49.

973.057(4) (4) If the moneys collected under this section prove inadequate to fund the global positioning system tracking program under s. 301.49, the department may, by rule, increase the surcharge under sub. (1) by not more than 5 percent each year to cover the costs of the global positioning system tracking program.

973.057 History History: 2011 a. 266; 2013 a. 165 s. 115

973.06 973.06 Costs, fees, and surcharges.

973.06(1) (1) Except as provided in s. 93.20, the costs, fees, and surcharges taxable against the defendant shall consist of the following items and no others:

973.06(1)(a) (a) The necessary disbursements and fees of officers allowed by law and incurred in connection with the arrest, preliminary examination and trial of the defendant, including, in the discretion of the court, the fees and disbursements of the agent appointed to return a defendant from another state or country.

973.06(1)(am) (am) Moneys expended by a law enforcement agency under all of the following conditions:

973.06(1)(am)1. 1. The agency expended the moneys to purchase a controlled substance or controlled substance analog that was distributed in violation of ch. 961.

973.06(1)(am)2. 2. The moneys were expended in the course of an investigation that resulted in the defendant’s conviction.

973.06(1)(am)3. 3. The moneys were used to obtain evidence of the defendant’s violation of the law.

973.06(1)(am)4. 4. The agency has not previously been reimbursed or repaid for the expended moneys by the defendant.

973.06(1)(ar) (ar) If the defendant violated s. 947.017, the moneys expended by a state or local government agency for the following activities in connection with a threat under s. 947.017 (2):

973.06(1)(ar)1. 1. The response to the threat by emergency medical personnel, as defined in s. 941.37 (1) (c).

973.06(1)(ar)2. 2. The analysis of any substance alleged to be a harmful substance, as defined in s. 947.017 (1).

973.06(1)(ar)3. 3. The medical treatment of persons who are alleged to have been exposed to an alleged harmful substance, as defined in s. 947.017 (1).

973.06(1)(av) (av)

973.06(1)(av)1. 1. Except as provided in subd. 2., if the defendant violated s. 946.41 by obstructing an officer, the reasonable costs expended by a state or local law enforcement agency or emergency response agency to respond to or investigate the false information that the defendant provided or the physical evidence that the defendant placed. Costs allowable under this paragraph may include personnel costs and costs associated with the use of police or emergency response vehicles.

973.06(1)(av)2. 2. No costs may be taxable against a defendant under this paragraph if any of the following applies:

973.06(1)(av)2.a. a. The defendant was charged under s. 946.41 solely because he or she recanted a report of abusive conduct, including interspousal battery, as described under s. 940.19 or 940.20 (1m), domestic abuse, as defined in s. 49.165 (1) (a), 813.12 (1) (am), or 968.075 (1) (a), harassment, as defined in s. 813.125 (1) (am) 4., sexual exploitation by a therapist under s. 940.22, sexual assault under s. 940.225, child abuse, as defined under s. 813.122 (1) (a), or child abuse under ss. 948.02 to 948.11.

973.06(1)(av)2.b. b. The defendant was a victim of abusive conduct, including interspousal battery, as described under s. 940.19 or 940.20 (1m), domestic abuse, as defined in s. 49.165 (1) (a), 813.12 (1) (am), or 968.075 (1) (a), harassment, as defined in s. 813.125 (1) (am) 4., sexual exploitation by a therapist under s. 940.22, sexual assault under s. 940.225, child abuse, as defined under s. 813.122 (1) (a), or child abuse under ss. 948.02 to 948.11, and he or she was charged under s. 946.41 based on information he or she omitted or false information he or she provided during the course of an investigation into the crime committed against him or her.

973.06(1)(av)2.c. c. The defendant was charged under s. 946.41 solely because his or her report did not lead to criminal charges against, or a conviction of, another person.

973.06(1)(b) (b) Fees and travel allowance of witnesses for the state at the preliminary examination and the trial.

973.06(1)(c) (c) Fees and disbursements allowed by the court to expert witnesses. Section 814.04 (2) shall not apply in criminal cases.

973.06(1)(d) (d) Fees and travel allowance of witnesses for the defense incurred by the county at the request of the defendant, at the preliminary hearing and the trial.

973.06(1)(e) (e) Attorney fees payable to the defense attorney by the county or the state. If the court determines at the time of sentencing that the defendant’s financial circumstances are changed, the court may adjust the amount in accordance with s. 977.07 (1) (a) and rules promulgated under s. 977.02 (3).

973.06(1)(g) (g) An amount equal to 10 percent of any restitution ordered under s. 973.20, payable to the county treasurer for use by the county.

973.06(1)(h) (h) The cost of performance of a test under s. 968.38, if ordered by the court.

973.06(1)(j) (j) If the defendant violated s. 23.33 (4c), 23.335 (12) (a) or (b), 30.681, 114.09, 346.63, 350.101, 940.09 (1), or 940.25, any costs charged to or paid by a law enforcement agency for the withdrawal of the defendant’s blood, except that the court may not impose on the defendant any cost for an alternative test provided free of charge as described in s. 343.305 (4). If at the time the court finds that the defendant committed the violation, the law enforcement agency has not paid or been charged with the costs of withdrawing the person’s blood, the court shall impose and collect the costs the law enforcement agency reasonably expects to be charged for the withdrawal, based on the current charges for this procedure. Notwithstanding sub. (2), the court may not remit these costs.

973.06(2) (2) The court may remit the taxable costs, in whole or in part.

973.06(3) (3) If the court orders payment of restitution, collection of costs shall be as provided under s. 973.20.

973.06 History History: Sup. Ct. Order, 67 Wis. 2d 585, 784 (1975); 1979 c. 356; 1981 c. 352; 1985 a. 29; 1987 a. 347, 398, 403; 1991 a. 39, 269; 1995 a. 27, 53, 448; 1999 a. 58, 69, 186; 2003 a. 104, 139; 2007 a. 84; 2009 a. 164; 2011 a. 32, 269; 2015 a. 55, 170, 253; 2021 a. 76.

973.06 Annotation An accused who cancels a jury trial at the last moment to accept a plea bargain risks both taxation of costs under this section and assessment of jury fees under s. 814.51. State v. Foster, 100 Wis. 2d 103, 301 N.W.2d 192 (1981).

973.06 Annotation A court may not order reimbursement of a law enforcement agency for routine investigative activities. State v. Peterson, 163 Wis. 2d 800, 472 N.W.2d 571 (Ct. App. 1991).

973.06 Annotation Contribution under sub. (1) (e) toward a defendant’s attorney fees payable by the county may not be taxed in an order separate from the sentence. State v. Grant, 168 Wis. 2d 682, 484 N.W.2d 370 (Ct. App. 1992).

973.06 Annotation Sub. (1) (c) does not limit recovery of expert witness fees to fees for court appointed witnesses. State v. Schmaling, 198 Wis. 2d 756, 543 N.W.2d 555 (Ct. App. 1995).

973.06 Annotation A court was authorized to order that a defendant pay the cost of DNA testing by a private laboratory as a cost under this section. State v. Beiersdorf, 208 Wis. 2d 492, 561 N.W.2d 749 (Ct. App. 1997), 95-1234.

973.06 Annotation Expenses incurred by a sheriff’s department in transporting a witness from a Florida corrections facility to testify at the defendant’s trial were chargeable to the defendant under sub. (1) (a). State v. Bender, 213 Wis. 2d 338, 570 N.W.2d 590 (Ct. App. 1997), 97-1095.

973.06 Annotation For costs to be imposed under sub. (1) (am), all the listed conditions must be met. State v. Neave, 220 Wis. 2d 786, 585 N.W.2d 169 (Ct. App. 1998), 97-3486.

973.06 Annotation Sub. (1) (c) authorized the taxation of the costs of an expert’s medical examination when the development of that evidence was used in the prosecution of the defendant although the examination was not done in contemplation of trial and the expert witness did not testify. State v. Rohe, 230 Wis. 2d 294, 602 N.W.2d 125 (Ct. App. 1999), 99-0233.

973.06 Annotation “Disbursements and fees” are given the same meaning in sub. (1) (a) and (c). Whether the expenses associated with orders to produce a defendant are taxable “fees of officers” under sub. (1) (a) depends upon whether they are ordinarily charged to and payable by another or are merely internal operating expenses of a governmental unit. State v. Dismuke, 2001 WI 75, 244 Wis. 2d 457, 628 N.W.2d 791, 99-1734.

973.06 Annotation The trial court has inherent authority to assess the cost of impaneling a jury against a party. The purpose of imposing jury costs is to deter disruptive practices that contribute to inefficiency in the court system. The trial court is not limited to imposing costs on parties, but may sanction an attorney whose conduct negligently disrupts the court’s orderly administration of justice. O’Neil v. Monroe County Circuit Court, 2003 WI App 149, 266 Wis. 2d 155, 667 N.W.2d 774, 02-2866.

973.06 Annotation When a defendant agrees to reimburse the county for the attorney fees of standby counsel or the circuit court informs the defendant of the defendant’s potential liability for the fees and standby counsel functions as traditional defense counsel, sub. (1) (e) and s. 973.09 (1g) give a circuit court the authority to impose the attorney fees of standby counsel as a condition of probation. If a defendant does not agree to reimburse the county or is not informed of the potential obligation to pay the fees of standby counsel, payment of attorney fees may not be a condition of probation, under sub. (1) (e). When standby counsel acts primarily for the benefit of the court rather than as defense counsel, attorney fees for standby counsel are inappropriate. State v. Campbell, 2006 WI 99, 294 Wis. 2d 100, 718 N.W.2d 649, 04-0803.

973.06 Annotation The obligation of a defendant under this section is not dischargeable in bankruptcy. In re Zarzynski, 771 F.2d 304 (1985).

973.06 Annotation Right to Counsel: Repayment of Cost of Court-Appointed Counsel as a Condition of Probation. Strattner. 56 MLR 551 (1973).

973.07 973.07 Failure to pay fine, fees, surcharges, or costs or to comply with certain community service work. If the fine, plus costs, fees, and surcharges imposed under ch. 814, are not paid or community service work under s. 943.017 (3) is not completed as required by the sentence, the defendant may be committed to the county jail until the fine, costs, fees, and surcharges are paid or discharged, or the community service work under s. 943.017 (3) is completed, for a period fixed by the court not to exceed 6 months.

973.07 History History: 1977 c. 29; 1979 c. 34, 111; 1981 c. 20; 1983 a. 27; 1985 a. 36; 1987 a. 27, 339; 1989 a. 64; 1991 a. 39; 1993 a. 16; 1995 a. 24; 1997 a. 27; 1999 a. 9; 2001 a. 16; 2003 a. 139.

973.07 Annotation Section 973.05 (1), permitting a delay of 60 days for payment of a fine, and this section, allowing commitment to jail for nonpayment, are constitutional since the court may stay the sentence and put the defendant on probation. The burden of proving inability to pay is on the defendant. State ex rel. Pedersen v. Blessinger, 56 Wis. 2d 286, 201 N.W.2d 778 (1972).

973.07 Annotation When a fine and payment schedule are reasonably suited to an offender’s means, the offender carries a heavy burden of showing inability to pay. Will v. State, 84 Wis. 2d 397, 267 N.W.2d 357 (1978).

973.07 Annotation Commitment under this section may be consecutive to another term of incarceration. State v. Way, 113 Wis. 2d 82, 334 N.W.2d 918 (Ct. App. 1983).

973.07 Annotation The six-month limit on commitments under this section is the aggregate amount of time a defendant may be jailed for nonpayment of a fine. State v. Schuman, 173 Wis. 2d 743, 496 N.W.2d 684 (Ct. App. 1993).

973.07 Annotation Incarceration as a means of collecting a fine is limited to six months by this section. It was error for a court to make payment of an old, unpaid fine a condition of probation for a new conviction when violation of probation exposed the defendant to incarceration of more than six months. State v. Oakley, 2000 WI 37, 234 Wis. 2d 528, 609 N.W.2d 786, 98-1099.

973.07 Annotation In the case of an order for commitment for failure to pay attorney fees, in order to be constitutional this section must require a finding of ability to pay prior to any commitment. The defendant must be given notice and an opportunity to be heard. State v. Helsper, 2006 WI App 243, 297 Wis. 2d 377, 724 N.W.2d 414, 06-0835.

973.075 973.075 Forfeiture of property derived from crime and certain vehicles.

973.075(1) (1) Subject to subs. (1g) and (1m), the following are subject to seizure and forfeiture under ss. 973.075 to 973.077:

973.075(1)(a) (a) All property, real or personal, including money, used in the course of, intended for use in the course of, or directly or indirectly derived from or realized through the commission of any crime.

973.075(1)(b) (b) All vehicles, as defined in s. 939.22 (44), which are used in any of the following ways:

973.075(1)(b)1. 1. To transport any property or weapon used or to be used or received in the commission of any felony.

973.075(1)(b)2. 2. In the commission of a crime under s. 946.70.

973.075(1)(b)3. 3. In the commission of a crime in violation of s. 940.302, 944.30 (1m), 944.31, 944.32, 944.33, 944.34, 948.02, 948.025, 948.05, 948.051, 948.055, 948.06, 948.07, 948.08, 948.081, 948.09, 948.10, 948.12, or 948.14.

973.075(1)(b)4. 4. In the commission of a crime relating to a submerged cultural resource in violation of s. 44.47.

973.075(1)(b)5. 5. To cause more than $2,500 worth of criminal damage to cemetery property in violation of s. 943.01 (2) (d) or 943.012.

973.075(1)(b)6. 6. In the commission of a crime under s. 813.12 (8), 813.122 (11), 813.123 (10), 813.125 (7), 813.128 (4) or 940.32.

973.075(1)(b)7. 7. In the commission of a crime under s. 943.75 (2) or (2m).

973.075(1)(b)8. 8. In the commission of a crime under s. 948.07.

973.075(1)(bg) (bg) Any property used or to be used in the commission of a crime under s. 943.74, 943.75 (2) or (2m), or 948.07.