Chapter 973

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.

973.075(1)(bm) (bm) Any property used 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)(c) (c) All remote sensing equipment, navigational devices, survey equipment and scuba gear and any other equipment or device used in the commission of a crime relating to a submerged cultural resource in violation of s. 44.47.

973.075(1)(d) (d) A tank vessel that violates s. 299.62 (2) that is owned by a person who, within 5 years before the commission of the current violation, was previously convicted of violating s. 299.62 (2).

973.075(1)(e) (e) Any recording, as defined in s. 943.206 (5), created, advertised, offered for sale or rent, sold, rented, transported or possessed in violation of ss. 943.207 to 943.209 or s. 943.49 and any electronic, mechanical or other device for making a recording or for manufacturing, reproducing, packaging or assembling a recording that was used to facilitate a violation of ss. 943.207 to 943.209 or s. 943.49, regardless of the knowledge or intent of the person from whom the recording or device is seized.

973.075(1g) (1g) A judgment of forfeiture may not be entered under ss. 973.075 to 973.077 unless a person is convicted of the criminal offense that was the basis for the seizure of the item or that is related to the action for forfeiture.

973.075(1k) (1k) A person who has been subject to a seizure of property has a right to a pretrial hearing under s. 968.20.

973.075(1m) (1m) The property of an innocent owner may not be forfeited. A person who claims to be an innocent owner may follow the procedures under s. 973.076 (5).

973.075(1r) (1r) If a law enforcement officer or agency or state or local employee or agency refers seized property to a federal agency directly, indirectly, by adoption, through an intergovernmental joint task force, or by other means, for the purposes of forfeiture litigation, the agency shall produce an itemized report of actual forfeiture expenses, including administrative expenses of seizure, maintenance of custody, advertising, and court costs and the costs of investigation and prosecution reasonably incurred, and submit the report to the department of administration to make it available on the department’s website. If there is a federal or state criminal conviction for the crime that was the basis for the seizure, the agency may accept all proceeds. If there is no federal or state criminal conviction, the agency may not accept any proceeds, except that the agency may accept all proceeds if one of the following circumstances applies and is explained in the report submitted under this subsection:

973.075(1r)(a) (a) The defendant has died.

973.075(1r)(b) (b) The defendant was deported by the U.S. government.

973.075(1r)(c) (c) The defendant has been granted immunity in exchange for testifying or otherwise assisting a law enforcement investigation or prosecution.

973.075(1r)(d) (d) The defendant fled the jurisdiction.

973.075(1r)(e) (e) The property has been unclaimed for a period of at least 9 months.

973.075(2) (2) A law enforcement officer may seize property subject to this section upon process issued by any court of record having jurisdiction over the property. Except for vehicles used 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, seizure without process may be made under any of the following circumstances:

973.075(2)(a) (a) The seizure is incident to an arrest or a search under a search warrant or an inspection under any administrative or special inspection warrant.

973.075(2)(b) (b) The property subject to seizure has been the subject of a prior judgment in favor of the state.

973.075(2)(c) (c) The officer has probable cause to believe that the property is directly or indirectly dangerous to health or safety.

973.075(2)(d) (d) The officer has probable cause to believe that the property was derived from or realized through a crime, or was used in a crime under s. 948.07, or that the property is a vehicle which was used to transport any property or weapon used or to be used or received in the commission of any felony, which was used in the commission of a crime relating to a submerged cultural resource in violation of s. 44.47, which was used in the commission of a crime under s. 948.07, or which was used 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(3) (3) If there is a seizure under sub. (2) or s. 342.30 (4) (a), proceedings under s. 973.076 shall be instituted. Property seized under this section or s. 342.30 (4) (a) is not subject to replevin, but is deemed to be in the custody of the sheriff of the county in which the seizure was made subject only to the orders and decrees of the court having jurisdiction over the forfeiture proceedings. When property is seized under this section or s. 342.30 (4) (a), the person seizing the property may do any of the following:

973.075(3)(a) (a) Place the property under seal.

973.075(3)(b) (b) Remove the property to a place designated by it.

973.075(3)(c) (c) Require the sheriff of the county in which the seizure was made to take custody of the property and remove it to an appropriate location for disposition in accordance with law.

973.075(4) (4) When property is forfeited under ss. 973.075 to 973.077, the agency seizing the property shall do one of the following:

973.075(4)(a) (a) If the property is a vehicle, retain it for official use for a period of up to one year. Before the end of that period, the agency shall do one of the following:

973.075(4)(a)1. 1. Sell the property and use a portion, not to exceed 50 percent, of the amount received for payment of forfeiture expenses if the agency produces an itemized report of actual forfeiture expenses and submits the report to the department of administration to make it available on the department’s website. The remainder shall be deposited in the school fund as proceeds of the forfeiture. In this subdivision, “forfeiture expenses” include all proper expenses of the proceedings for forfeiture and sale, including expenses of seizure, maintenance of custody, advertising, and court costs and the costs of investigation and prosecution reasonably incurred.

973.075(4)(a)2. 2. Continue to retain the property, if the agency deposits 30 percent of the value of the vehicle, as determined by the department of revenue, in the school fund as proceeds of the forfeiture. If the agency sells the vehicle at a later time and receives as proceeds from the sale an amount in excess of the amount previously deposited in the school fund, the agency shall deposit the excess in the school fund.

973.075(4)(b) (b) Sell the property that is not required by law to be destroyed or transferred to another agency. The agency seizing the property may use a portion, not to exceed 50 percent, of the amount received for administrative expenses of seizure, maintenance of custody, advertising, and court costs and the costs of investigation and prosecution reasonably incurred if the agency produces an itemized report of actual forfeiture expenses and submits the report to the department of administration to make it available on the department’s website. The remainder shall be deposited in the school fund as the proceeds of the forfeiture.

973.075(4)(c) (c) If the property forfeited is money, deposit all the money in the school fund.

973.075(5) (5) All forfeitures under ss. 973.075 to 973.077 shall be made with due provision for the rights of innocent persons under subs. (1g), (1k), and (1m). Except as provided in sub. (5r), any property seized but not forfeited shall be returned to its rightful owner. Any person claiming the right to possession of property seized may apply for its return to the circuit court for the county in which the property was seized. The court shall order such notice as it deems adequate to be given the district attorney and all persons who have or may have an interest in the property and shall hold a hearing to hear all claims to its true ownership. If the right to possession is proved to the court’s satisfaction, it shall order the property returned as soon as practically possible if:

973.075(5)(a) (a) The property is not needed as evidence or, if needed, satisfactory arrangements can be made for its return for subsequent use as evidence; or

973.075(5)(b) (b) All proceedings in which it might be required have been completed.

973.075(5r) (5r) If a recording involved in a violation of ss. 943.207 to 943.209 is forfeited, the sheriff of the county in which the recording was seized shall destroy it after the completion of all proceedings in which the recording might be required as evidence.

973.075(6) (6) Sections 973.075 to 973.077 do not apply to crimes committed under ch. 961.

973.075 History History: 1981 c. 267; 1985 a. 245, 258; 1987 a. 348; 1989 a. 263; 1993 a. 92, 169, 459, 491; 1995 a. 290, 448; 1997 a. 35, 285; 1999 a. 45, 51, 186; 2001 a. 16, 91; 2013 a. 262, 362; 2015 a. 352; 2017 a. 128, 211.

973.075 Annotation The critical inquiry under sub. (1) (b) is not whether the vehicle was used in a crime, but whether property carried by the vehicle was used in a crime. State v. One 1971 Oldsmobile Cutlass Automobile, 159 Wis. 2d 718, 464 N.W.2d 851 (Ct. App. 1990).

973.075 Annotation The forfeiture of a motor vehicle under sub. (1) (b) did not violate the constitutional guarantees against excessive punishment. State v. Hammad, 212 Wis. 2d 343, 569 N.W.2d 68 (Ct. App. 1997), 95-2669.

973.075 Annotation Ownership under sub. (1) (b) 2. [now sub. (1) (b) 2m. b.] is not controlled by legal title, but will be found based on consideration of possession, title, control, and financial stake. State v. Kirch, 222 Wis. 2d 598, 587 N.W.2d 919 (Ct. App. 1998), 98-0582.

973.075 Annotation A punitive forfeiture violates the prohibition against excessive fines in the U.S. Constitution if it is grossly disproportional to the gravity of the defendant’s offense. Whether a forfeiture is far in excess of the maximum fine is a factor appropriately considered. State v. Boyd, 2000 WI App 208, 238 Wis. 2d 693, 618 N.W.2d 251, 99-2633.

973.075 Annotation For purposes of the statutory “innocent owner” exception in this case, while one co-titleholder had the largest financial interest in the forfeited vehicle, the second co-titleholder, who used the vehicle in drug sales, was the actual owner of the vehicle when that second titleholder had nearly complete possession and control of the vehicle and paid for insurance, gas, and maintenance while the first titleholder had a different vehicle of her own. However, while forfeiture of the vehicle and second titleholder’s financial interest in it was constitutional, forfeiture of the first titleholder’s full financial interest in the vehicle was unconstitutional under the excessive fines clause. State v. One 2013, Toyota Corolla, 2015 WI App 84, 365 Wis. 2d 582, 872 N.W.2d 98, 14-2226.

973.075 Annotation A law enforcement agency may not retain unclaimed contraband money for its own use. In the absence of an asset forfeiture proceeding initiated by the state or a judicial determination that the money constitutes contraband, a local law enforcement agency should dispose of the money as unclaimed property under s. 59.66 (2). OAG 10-09.

973.076 973.076 Forfeiture proceedings.

973.076(1) (1) Civil forfeitures.

973.076(1)(a) (a) Type of action; where brought. In an action brought to cause the forfeiture of any property specified in s. 342.30 (4) (a) or s. 973.075 (1), the court may render a judgment in rem or against a party personally, or both. The circuit court for the county in which the property was seized shall have jurisdiction over any proceedings regarding the property when the action is commenced in state court. Subject to s. 973.075 (1r), any property seized may be the subject of a federal forfeiture action.

973.076(1)(b) (b) Commencement.

973.076(1)(b)1. 1. The district attorney of the county within which the property was seized or in which the defendant is convicted shall commence the forfeiture action within 30 days after the seizure of the property or the date of conviction, whichever is earlier, and the forfeiture proceedings shall be adjourned until after the defendant is convicted of any charge concerning a crime which was the basis for the seizure of the property. If property is seized, a charge shall be issued within 6 months after the seizure, except that an unlimited number of 6-month extensions may be granted if, for each extension, a judge determines probable cause is shown and the additional time is warranted. If no charge is issued within 6 months after the seizure, or a 6-month extension is not granted, the seized property shall be returned to the owner. The forfeiture action shall be commenced by filing a summons, complaint and affidavit of the person who seized the property with the clerk of circuit court, provided service of authenticated copies of those papers is made in accordance with ch. 801 within 90 days after filing upon the person from whom the property was seized and upon any person known to have a bona fide perfected security interest in the property.

973.076(1)(b)1m. 1m. Upon motion by the prosecuting attorney, the court may waive the conviction requirement under subd. 1. if the prosecuting attorney shows by clear and convincing evidence that any of the following applies:

973.076(1)(b)1m.a. a. The defendant has died.

973.076(1)(b)1m.b. b. The defendant was deported by the U.S. government.

973.076(1)(b)1m.c. c. The defendant has been granted immunity in exchange for testifying or otherwise assisting a law enforcement investigation or prosecution.

973.076(1)(b)1m.d. d. The defendant fled the jurisdiction.

973.076(1)(b)1m.e. e. The property has been unclaimed for a period of at least 9 months.

973.076(1)(b)1m.f. f. The property is contraband that is subject to forfeiture under s. 961.55 (6), (6m), or (7).

973.076(1)(b)2. 2. Upon service of an answer, the action shall be set for hearing within 60 days of the service of the answer but may be continued for cause or upon stipulation of the parties.

973.076(1)(b)3. 3. In counties having a population of 750,000 or more, the district attorney or the corporation counsel may proceed under subd. 1.

973.076(1)(b)4. 4. If no answer is served or no issue of law or fact has been joined and the time for that service or joining issue has expired, or if any defendant fails to appear at trial after answering or joining issue, the court may render a default judgment as provided in s. 806.02.

973.076(2m) (2m) Criminal forfeitures.

973.076(2m)(a) (a) In addition to any penalties under this chapter, the court shall, with due provision for the rights of innocent persons in accordance with sub. (5), order forfeiture of any property specified in s. 973.075 (1) in accordance with pars. (b), (c), and (d).

973.076(2m)(b) (b) A criminal complaint must allege the extent of property subject to forfeiture under this subsection. At trial, the court or the jury shall return a special verdict determining the extent of property, if any, that is subject to forfeiture under this subsection. When a special verdict contains a finding of property subject to a forfeiture under this subsection, a judgment of criminal forfeiture shall be entered along with the judgment of conviction under s. 972.13.

973.076(2m)(c) (c) An injured person has a right or claim to forfeited property or the proceeds derived from forfeited property under this subsection that is superior to any right or claim the state has in the property or proceeds. This paragraph does not grant the injured person priority over state claims or rights by reason of a tax lien or other basis not covered by this section or by s. 973.075 or 973.077. All rights, titles, and interest in property specified in s. 973.075 (1) vest in the state upon the commission of the act giving rise to forfeiture under this subsection.

973.076(2m)(d) (d) An injured or innocent person may petition the court for relief from the judgment of criminal forfeiture entered under par. (b) within 30 days after it is entered. The person filing the petition has the burden of satisfying or convincing to a reasonable certainty by the greater weight of the evidence that the person has a bona fide perfected security interest in the property subject to forfeiture in s. 973.075 (1) or any other property subject to forfeiture in sub. (4). The court may order that a person with a bona fide perfected security interest be paid from the proceeds of the forfeiture or any other equitable relief necessary so as to do substantial justice to the person.

973.076(3) (3) Burden of proof. The state shall have the burden of proving by clear and convincing evidence that the property is subject to forfeiture under ss. 973.075 to 973.077.

973.076(3g) (3g) Privileges. The defendant or convicted offender may invoke the right against self-incrimination or the marital privilege during the forfeiture-related stage of the prosecution. The trier of fact at the hearing may draw an adverse inference from the invocation of the right or privilege.

973.076(3m) (3m) Proportionality.

973.076(3m)(a) (a) The court may not order the forfeiture of property if the court finds that the forfeiture is grossly disproportional to the crime for which the person whose property was seized was convicted or that the forfeiture is unconstitutionally excessive under the state or federal constitution.

973.076(3m)(b) (b) A person who is alleging that the forfeiture is grossly disproportional or is unconstitutionally excessive under this subsection shall have the burden of satisfying or convincing to a reasonable certainty by the greater weight of the credible evidence that the forfeiture is grossly disproportional or unconstitutionally excessive.