Chapter 973

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.

973.076(3m)(c) (c) In determining whether the forfeiture is grossly disproportional or unconstitutionally excessive, the court shall consider the following:

973.076(3m)(c)1. 1. The seriousness of the offense.

973.076(3m)(c)2. 2. The purpose of the statute authorizing the forfeiture.

973.076(3m)(c)3. 3. The maximum fine for the offense.

973.076(3m)(c)4. 4. The harm that actually resulted from the defendant’s conduct.

973.076(3m)(d) (d) In determining whether the forfeiture is grossly disproportional or unconstitutionally excessive, the court may not consider the value of the property to the state.

973.076(4) (4) Action against other property of the person. The court may order the forfeiture of any other property of a defendant up to the value of property found by the court to be subject to forfeiture under s. 973.075 if the property subject to forfeiture meets any of the following conditions:

973.076(4)(a) (a) Cannot be located.

973.076(4)(b) (b) Has been transferred or conveyed to, sold to or deposited with a 3rd party.

973.076(4)(c) (c) Is beyond the jurisdiction of the court.

973.076(4)(d) (d) Has been substantially diminished in value while not in the actual physical custody of the law enforcement agency.

973.076(4)(e) (e) Has been commingled with other property that cannot be divided without difficulty.

973.076(5) (5) Innocent owners.

973.076(5)(a) (a) Notwithstanding sub. (1) (b) 1., a person who claims to have an ownership interest in property subject to forfeiture as an innocent owner may petition the court for the return of his or her seized property at any time.

973.076(5)(b) (b) A person who has an ownership interest in property subject to forfeiture that exists at the occurrence of the illegal conduct giving rise to the forfeiture and who claims to be an innocent owner has the burden of proving by clear and convincing evidence that he or she has a legal right, title, or interest in the property seized under this chapter.

973.076(5)(c) (c) If the requisite showing under par. (b) has been made, in order to proceed with a forfeiture action against the property, the state has the burden of proving by clear and convincing evidence that the person had actual or constructive knowledge of the underlying crime giving rise to the forfeiture.

973.076(5)(d) (d) A person who has an ownership interest in property subject to forfeiture that he or she acquired after the occurrence of the conduct giving rise to the forfeiture and who claims to be an innocent owner has the burden of proving by clear and convincing evidence that he or she has a legal right, title, or interest in the property seized under this chapter.

973.076(5)(e) (e) If the requisite showing under par. (d) has been made, in order to proceed with a forfeiture action against the property, the state has the burden of proving by clear and convincing evidence that the person had actual or constructive knowledge that the property was subject to forfeiture or that the person was not a bona fide purchaser without notice of any defect in title and for valuable consideration.

973.076(5)(f) (f) If the state does not meet the burden under par. (c) or (e) as to any property, the court shall find that the property is the property of an innocent owner and not subject to forfeiture under this chapter and shall order the state to relinquish all claims of title to the property.

973.076(6) (6) Return of property. The court shall order the return of any property subject to forfeiture under ss. 973.075 to 973.077 within 30 days of acquittal or dismissal of charges for the offense which was the basis of the forfeiture action, or 6 months after a seizure which was the basis of the forfeiture action if no charges have been issued and no extension has been granted. If the property is co-owned by 2 or more defendants in a criminal action, and one or more defendant co-owners are acquitted or the charges against him or her are dismissed, the court shall have discretion to dispose of the co-owned property in accordance with the proportionality guidelines in sub. (3m) as he or she deems appropriate.

973.076(7) (7) Attorney fees. A person who prevails in an action to return property subject to forfeiture under ss. 973.075 to 973.077 may be awarded reasonable attorney fees by the state if the court finds that the forfeiting agency or prosecuting attorney has arbitrarily and capriciously pursued the forfeiture action.

973.076 History History: 1981 c. 267; Sup. Ct. Order, 120 Wis. 2d xiii (1984); 1985 a. 245; 1989 a. 121; 1993 a. 92, 321, 491; 1997 a. 187; 2013 a. 362; 2017 a. 207 s. 5; 2017 a. 211.

973.076 Note Judicial Council Note, 1984: Sub. (2) (a) has been amended by allowing 60 days after the action is commenced for service of the summons, complaint and affidavit on the defendants. The prior statute, requiring service within 30 days after seizure of the property, was an exception to the general rule of s. 801.02 (2), stats. [Re Order effective Jan. 1, 1985]

973.076 Annotation Section 801.15 (2) governs extensions of time after the time for setting a hearing has expired. State v. Elliott, 203 Wis. 2d 95, 551 N.W.2d 850 (Ct. App. 1996), 96-0012.

973.076 Annotation Under former sub. (2) (a), 2001 stats., “adjudication” occurs at the moment of a finding of guilt or innocence by a circuit court and does not embrace an appeal of a conviction. Former sub. (2) (a), 2001 stats., does not contemplate adjournment of forfeiture proceedings pending an appeal of the underlying criminal conviction. State v. One 1997 Ford F-150, 2003 WI App 128, 265 Wis. 2d 264, 665 N.W.2d 411, 02-2685.

973.077 973.077 Burden of proof; liabilities.

973.077(1) (1) It is not necessary for the state to negate any exemption or exception regarding any crime in any complaint, information, indictment or other pleading or in any trial, hearing or other proceeding under s. 973.076. The burden of proof of any exemption or exception is upon the person claiming it.

973.077(2) (2) In the absence of proof that a person is the duly authorized holder of an appropriate federal registration or order form, the person is presumed not to be the holder of the registration or form. The burden of proof is upon the person to rebut the presumption.

973.077(3) (3) No liability is imposed by ss. 973.075 to 973.077 upon any authorized law enforcement officer or employee engaged in the lawful performance of duties.

973.077 History History: 1981 c. 267.

973.08 973.08 Records accompanying prisoner.

973.08(1) (1) When any defendant is sentenced to the state prisons, a copy of the judgment of conviction and a copy of any order for restitution under s. 973.20 shall be delivered by the officer executing the judgment to the warden or superintendent of the institution when the prisoner is delivered.

973.08(2) (2) The transcript of any portion of the proceedings relating to the prisoner’s sentencing shall be filed at the institution within 120 days from the date sentence is imposed.

973.08(3) (3) The transcript of all other testimony and proceedings upon order of a court shall be delivered to a prisoner within 120 days of his or her request.

973.08(4) (4) The transcript of all other testimony and proceedings upon order of a court shall be delivered to the department within 120 days of its request.

973.08(5) (5) The clerk of court shall file or deliver a transcript under sub. (2), (3) or (4).

973.08 History History: 1971 c. 298 s. 26 (1); 1977 c. 187; Sup. Ct. Order, eff. 1-1-80; 1979 c. 221; 1987 a. 398.

973.08 Annotation For a court order to be entered under sub. (3), at a minimum a requesting prisoner must show that the prisoner either never received, or was denied, access to the requested documents. State v. Wilson, 170 Wis. 2d 720, 490 N.W.2d 48 (Ct. App. 1992).

973.09 973.09 Probation.

973.09(1) (1) 

973.09(1)(a) (a) Except as provided in par. (c) or if probation is prohibited for a particular offense by statute, if a person is convicted of a crime, the court, by order, may withhold sentence or impose sentence under s. 973.15 and stay its execution, and in either case place the person on probation to the department for a stated period, stating in the order the reasons therefor. The court may impose any conditions which appear to be reasonable and appropriate. The period of probation may be made consecutive to a sentence on a different charge, whether imposed at the same time or previously. If the court imposes a term of probation under sub. (2) (a) 1. or 2. or (b) 2., it shall place its reasons for doing so on the record.

973.09(1)(b) (b) If the court places the person on probation, the court shall order the person to pay restitution under s. 973.20, unless the court finds there is substantial reason not to order restitution as a condition of probation. If the court does not require restitution to be paid to a victim, the court shall state its reason on the record. If the court does require restitution, it shall notify the department of justice of its decision if the victim may be eligible for compensation under subch. I of ch. 949.

973.09(1)(c) (c) When a person is convicted of any crime which is punishable by life imprisonment, the court shall not place the person on probation.

973.09(1)(d) (d) If a person is convicted of an offense that provides a mandatory or presumptive minimum period of one year or less of imprisonment, a court may place the person on probation under par. (a) if the court requires, as a condition of probation, that the person be confined under sub. (4) for at least that mandatory or presumptive minimum period. The person is eligible to earn good time credit calculated under s. 302.43 regarding the period of confinement.

973.09(1)(e) (e) The court may impose a sentence under s. 973.032, stay its execution and place the person on probation. A court may not provide that a condition of any probation involves participation in the intensive sanctions program.