Chapter 973

973.10 Annotation A probationer’s due process right to prompt revocation proceedings was not triggered when the probationer was detained as a result of unrelated criminal proceedings. State ex rel. Alvarez v. Lotter, 91 Wis. 2d 329, 283 N.W.2d 408 (Ct. App. 1979).

973.10 Annotation Probation can be revoked for a violation of a criminal statute absent a written probation agreement. State ex rel. Rodriguez v. DHSS, 133 Wis. 2d 47, 393 N.W.2d 105 (Ct. App. 1986).

973.10 Annotation A probation officer may conduct a warrantless search. That the underlying conviction is subsequently overturned does not retroactively invalidate a warrantless search by the probation officer. State v. Angiolo, 207 Wis. 2d 561, 558 N.W.2d 701 (Ct. App. 1996), 96-0099.

973.10 Annotation A probationer has a right to a competency determination when during a revocation proceeding the administrative law judge has reason to doubt the probationer’s competence. The determination shall be made by the circuit court in the county of sentencing, which shall adhere to ss. 971.13 and 971.14 to the extent practicable. State ex rel. Vanderbeke v. Endicott, 210 Wis. 2d 502, 563 N.W.2d 883 (1997), 95-0907.

973.10 Annotation Because an administrative decision may be reviewed upon a timely petition for certiorari, an adequate remedy exists at law to correct defects and relief under habeas corpus will not be granted. State ex rel. Reddin v. Galster, 215 Wis. 2d 179, 572 N.W.2d 505 (Ct. App. 1997), 97-0111.

973.10 Annotation A certiorari proceeding to review a probation revocation must be heard in the circuit court of conviction, but it need not be by the same branch. Drow v. Schwarz, 225 Wis. 2d 362, 592 N.W.2d 623 (1999), 97-1867.

973.10 Annotation Sub (2) is constitutional. Probation and probation revocation are within the powers shared by the branches of government. Legislative delegation of revocation to the executive branch does not unduly burden or substantially interfere with the judiciary’s constitutional function to impose criminal penalties. State v. Horn, 226 Wis. 2d 637, 594 N.W.2d 772 (1999), 97-2751.

973.10 Annotation Sub. (2) prohibits judicial revocation of probation by the trial courts. State v. Burchfield, 230 Wis. 2d 348, 602 N.W.2d 154 (Ct. App. 1999), 99-0716.

973.10 Annotation If a probationer refuses to incriminate himself or herself as required by a condition of supervision, the probationer cannot be automatically revoked on that ground. If the probationer refuses despite a grant of immunity, the probationer’s probation may be revoked on that basis. Any incriminating statements the probationer provides under the grant of immunity may be used as justification for revocation, but not used in any criminal proceedings. If a probationer is compelled by way of probation rules to incriminate himself or herself, the resulting statements may not be used in any criminal proceeding. State v. Peebles, 2010 WI App 156, 330 Wis. 2d 243, 792 N.W.2d 212, 09-3111.

973.10 Annotation When both the circuit court and the defendant’s probation agent ordered the defendant to attend sex offender counseling, his supervision rules required that he be truthful, that he submit to lie detector tests, and that he fully cooperate with and successfully complete sex offender counseling, the probation supervision rules documents explicitly informed the defendant he could be revoked for failure to comply with any conditions, and the defendant gave his statements, at least in part, because he was required to take lie detector tests, his statements were compelled for purposes of the 5th amendment. Because the statements were then used against him at sentencing to increase his prison sentence, they were incriminating and should have been excluded. State v. Peebles, 2010 WI App 156, 330 Wis. 2d 243, 792 N.W.2d 212, 09-3111.

973.10 Annotation Wisconsin law empowers circuit courts to impose conditions of extended supervision and probation and to modify those conditions through a formal statutory process. However, actual administration of the sentence and conditions is entrusted to the Department of Corrections. In this case, the circuit court likely stepped over the line when the court imposed a condition that the defendant could not live with any women or unrelated children without the permission of the court, and the court intended to administer that condition through case-by-case oversight. State v. Williams-Holmes, 2023 WI 49, 408 Wis. 2d 1, 991 N.W.2d 373, 21-0809.

973.10 Annotation When a probationer or parolee is charged with a crime and may have otherwise violated conditions of release, revocation hearings based on the non-criminal violations should be held without delay. 65 Atty. Gen. 20.

973.10 Annotation A state may require probation officers, among other “peace officers,” to be U.S. citizens. Cabell v. Chavez-Salido, 454 U.S. 432, 102 S. Ct. 735, 70 L. Ed. 2d 677 (1982).

973.10 Annotation Revocation of probation without a hearing is a denial of due process. Hahn v. Burke, 430 F.2d 100 (1970).

973.10 Annotation A probation revocation hearing may be administrative. Retained or appointed counsel must be allowed to participate. Gunsolus v. Gagnon, 454 F.2d 416 (1971).

973.10 Annotation Criminal Law—Probation Revocation—Right to a Hearing—Right to Counsel. 1971 WLR 648.

973.10 Annotation Constitutional Law—Due Process—Criminal Law—Probation and Parole Revocation in Wisconsin. Fisher. 1977 WLR 503.

973.11 973.11 Placements with volunteers in probation program.

973.11(1) (1) Placements. If a person is convicted of or pleads guilty or no contest to one or more misdemeanors for which either mandatory periods of imprisonment are not required or the person is sentenced under s. 346.65 (2) (bm) or (cm), (2j) (bm) or (cm), or (3r), if the chief judge of the judicial administrative district has approved a volunteers in probation program established in the applicable county, and if the court decides that volunteer supervision under the program will likely benefit the person and the community and subject to the limitations under sub. (3), the court may withhold sentence or judgment of conviction and order that the person be placed with that volunteers in probation program. A person’s participation in the program may not be used to conceal, withhold, or mask information regarding the judgment of conviction if the conviction is required to be included in a record kept under s. 343.23 (2) (a). Except as provided in sub. (3), the order shall provide any conditions that the court determines are reasonable and appropriate and may include, but need not be limited to, one or more of the following:

973.11(1)(a) (a) A directive to a volunteer to provide one or more of the following functions for the defendant:

973.11(1)(a)1. 1. Role model.

973.11(1)(a)2. 2. Informal counseling.

973.11(1)(a)3. 3. General monitoring.

973.11(1)(a)4. 4. Monitoring of conditions set by the court.

973.11(1)(b) (b) Any requirement that the court may impose under s. 973.09 (1g), (4), and (7m).

973.11(2) (2) Approval of programs. In each judicial administrative district under s. 757.60, the chief judge of the district may approve volunteers in probation programs established in the district for placements under this section.

973.11(3) (3) Status. A defendant who is placed with a volunteers in probation program under sub. (1) is subject to the conditions set by the court. The defendant is not on probation under ss. 973.09 and 973.10 and the department is not responsible for supervising him or her. A court may place a defendant under sub. (1) prior to conviction only if a deferred prosecution agreement is reached under s. 971.40. In that case, the person is subject to the conditions set by the court under this section and the conditions provided in the agreement.

973.11(4) (4) Term. The court shall set the length of the order, which may not exceed 2 years unless extended pursuant to a hearing under sub. (5). When the defendant has satisfied the conditions of the order, the court shall discharge the defendant and dismiss the charges against the defendant if a judgment of conviction was not previously entered.

973.11(5) (5) Failure to comply with order.

973.11(5)(a) (a) If the defendant is alleged to have violated the conditions of an order under sub. (1), the court may hold a hearing regarding the allegations. The court shall notify the defendant at least 7 days prior to holding any such hearing. At the hearing, the defendant has the right to each of the following:

973.11(5)(a)1. 1. Counsel.

973.11(5)(a)2. 2. Remain silent.

973.11(5)(a)3. 3. Present and cross-examine witnesses.

973.11(5)(a)4. 4. Have the hearing recorded by a court reporter.

973.11(5)(b) (b) The court may extend the period of supervision for up to 45 days to accommodate a hearing under this subsection.

973.11(5)(c) (c) Failure of the defendant to appear at a hearing under this subsection tolls the running of the period of supervision.

973.11(5)(d) (d) If the court finds that the violation occurred, it may impose a sentence, revise the conditions of the order or allow the order to continue.

973.11(6) (6) Other modifications to order. At any time prior to the expiration of the order the court may shorten the length of the order or modify the conditions of the order. The court shall hold a hearing regarding a determination under this subsection if the defendant or district attorney requests a hearing.

973.11 History History: 1991 a. 253; 1993 a. 213; 2003 a. 33; 2005 a. 389; 2007 a. 84.

973.12 973.12 Sentence of a repeater or persistent repeater.

973.12(1) (1) Whenever a person charged with a crime will be a repeater or a persistent repeater under s. 939.62 or subject to a penalty under s. 939.6195 if convicted, any applicable prior convictions may be alleged in the complaint, indictment or information or amendments so alleging at any time before or at arraignment, and before acceptance of any plea. The court may, upon motion of the district attorney, grant a reasonable time to investigate possible prior convictions before accepting a plea. If the prior convictions are admitted by the defendant or proved by the state, he or she shall be subject to sentence under s. 939.6195 or 939.62 unless he or she establishes that he or she was pardoned on grounds of innocence for any crime necessary to constitute him or her a repeater or a persistent repeater. An official report of the F.B.I. or any other governmental agency of the United States or of this or any other state shall be prima facie evidence of any conviction or sentence therein reported. Any sentence so reported shall be deemed prima facie to have been fully served in actual confinement or to have been served for such period of time as is shown or is consistent with the report. The court shall take judicial notice of the statutes of the United States and foreign states in determining whether the prior conviction was for a felony or a misdemeanor.

973.12(2) (2) In every case of sentence under s. 939.6195 or 939.62, the sentence shall be imposed for the present conviction, but if the court indicates in passing sentence how much thereof is imposed because the defendant is a repeater, it shall not constitute reversible error, but the combined terms shall be construed as a single sentence for the present conviction.

973.12 History History: 1993 a. 289; 2017 a. 145.

973.12 Annotation This section does not authorize two sentences for one crime. State v. Upchurch, 101 Wis. 2d 329, 305 N.W.2d 57 (1981).

973.12 Annotation Because s. 939.62 authorizes penalty enhancement only when the maximum underlying sentence is imposed, the enhancement portion of a sub-maximum sentence was vacated as an abuse of sentencing discretion. State v. Harris, 119 Wis. 2d 612, 350 N.W.2d 633 (1984).

973.12 Annotation A report under sub. (1) must contain critically relevant facts in order to support penalty enhancement. State v. Farr, 119 Wis. 2d 651, 350 N.W.2d 640 (1984).

973.12 Annotation Discussing the effect of consolidation on a repeater allegation. State v. Rachwal, 159 Wis. 2d 494, 465 N.W.2d 490 (1991).

973.12 Annotation No amendment to a charging document to add a repeater allegation may be made after arraignment and acceptance of any plea. State v. Martin, 162 Wis. 2d 883, 470 N.W.2d 900 (1991).

973.12 Annotation A post-plea amendment of a repeater allegation in a charging document that meaningfully changes the basis on which possible punishment can be assessed is barred. State v. Wilks, 165 Wis. 2d 102, 477 N.W.2d 632 (Ct. App. 1991).

973.12 Annotation A guilty plea without a specific admission to repeater allegations is not sufficient to establish the facts necessary to impose the repeater penalty enhancer. State v. Zimmerman, 185 Wis. 2d 549, 518 N.W.2d 303 (Ct. App. 1994).

973.12 Annotation When a defendant does not admit to habitual criminality when entering a no contest plea, the state must prove the alleged repeater status beyond a reasonable doubt. State v. Theriault, 187 Wis. 2d 125, 522 N.W.2d 254 (Ct. App. 1994).

973.12 Annotation For a repeater enhancer to apply, the prior conviction must be alleged prior to the entry of a plea, but an error in the information regarding the penalty may be corrected when an amendment will cause no prejudice. State v. Gerard, 189 Wis. 2d 505, 525 N.W.2d 718 (1995).

973.12 Annotation Proof of repeater status must be made prior to sentencing. Judicial notice of prior convictions at a postconviction hearing was improper. State v. Koeppen, 195 Wis. 2d 117, 536 N.W.2d 386 (Ct. App. 1995), 94-2386.

973.12 Annotation Gerard, 189 Wis. 2d 505 (1995), is not limited to clerical errors. If the information correctly alleges a defendant’s repeater status, a post-arraignment amendment to the information does not violate this section as long as it does not affect the sufficiency of the notice to the defendant concerning the defendant’s repeater status. State v. Campbell, 201 Wis. 2d 783, 549 N.W.2d 501 (Ct. App. 1996), 95-2217.

973.12 Annotation The requirements for establishing prior offenses in this section are not applicable to the penalty enhancement provisions under chs. 341 to 349, including drunk driving offenses under s. 346.65 (2) or operating after revocation offenses under s. 343.44 (2). State v. Wideman, 206 Wis. 2d 91, 556 N.W.2d 737 (1996), 95-0852. See also State v. Spaeth, 206 Wis. 2d 135, 556 N.W.2d 728 (1996), 95-1827.

973.12 Annotation Sub. (1) does not require that the period of incarceration under s. 939.62 (2) must be alleged in the charging document. State v. Squires, 211 Wis. 2d 876, 565 N.W.2d 309 (Ct. App. 1997), 96-3302.

973.12 Annotation When the record established that the defendant fully understood the nature of the repeater charge against him, the defendant’s no contest plea to the information, which charged the defendant as a repeater on all counts, constituted an admission under this section. State v. Liebnitz, 231 Wis. 2d 272, 603 N.W.2d 208 (1999), 98-2182.

973.12 Annotation Sub. (1) does not prohibit a defendant from agreeing, after arraignment and entry of a not guilty plea as part of a plea agreement, to amend charging documents to add repeater allegations. State v. Peterson, 2001 WI App 220, 247 Wis. 2d 871, 634 N.W.2d 893, 01-0116.

973.12 Annotation Although the information itself failed to contain sufficient detail to provide proper notice of a repeater allegation in compliance with the statute and Gerard, 189 Wis. 2d 505 (1995), a certified copy of the defendant’s prior convictions, provided at a change of plea hearing, cured the defect. State v. Fields, 2001 WI App 297, 249 Wis. 2d 292, 638 N.W.2d 897, 01-1177.

973.12 Annotation The admissibility of evidence proving prior convictions can be waived when the prosecution submits documentary evidence that on its face is sufficient to show that the defendant is a repeater. State v. Edwards, 2002 WI App 66, 251 Wis. 2d 651, 642 N.W.2d 537, 01-0612.

973.12 Annotation An uncertified copy of a prior judgment of conviction may be used to prove a convicted defendant’s status as a habitual criminal. The rules of evidence do not apply to documents offered during a circuit court’s presentence determination of whether a qualifying prior conviction exists. The state has the burden of proof and must offer proof beyond a reasonable doubt of the conviction. State v. Saunders, 2002 WI 107, 255 Wis. 2d 589, 649 N.W.2d 263, 01-0271.

973.12 Annotation In a complaint that in referring to predicate convictions described the offenses, stated the correct county where the convictions occurred, and cited the case number, but misstated the date of the convictions by only one calendar day, the misstatement did not meaningfully change the basis on which the defendant entered a plea and provided the required notice of the predicate convictions on which the repeater status was based. State v. Stynes, 2003 WI 65, 262 Wis. 2d 335, 665 N.W.2d 115, 02-1143.

973.12 Annotation The state’s use of a Consolidated Court Automation Programs (CCAP) report as evidence of a conviction did not constitute prima facie proof of that conviction. State v. Bonds, 2006 WI 83, 292 Wis. 2d 344, 717 N.W.2d 133, 05-0948. But see State v. LaCount, 2008 WI 59, 310 Wis. 2d 85, 750 N.W.2d 780, 06-0672.

973.12 Annotation Evidence of repeater status may be submitted any time following the jury verdict up until the actual sentencing. State v. Kashney, 2008 WI App 164, 314 Wis. 2d 623, 761 N.W.2d 672, 07-2687.

973.123 973.123 Sentence for certain violent offenses; use of a firearm.

973.123(1) (1) In this section, “violent felony” means any felony under s. 943.23 (1m), 1999 stats., s. 943.23 (1r), 1999 stats., or s. 943.23 (1g), 2021 stats., or s. 940.01, 940.02, 940.03, 940.05, 940.06, 940.08, 940.09, 940.10, 940.19, 940.195, 940.198, 940.20, 940.201, 940.203, 940.204, 940.21, 940.225, 940.23, 940.235, 940.285 (2), 940.29, 940.295 (3), 940.30, 940.302, 940.305, 940.31, 940.43 (1) to (3), 940.45 (1) to (3), 941.20, 941.26, 941.28, 941.29, 941.292, 941.30, 941.327 (2) (b) 3. or 4., 943.02, 943.04, 943.06, 943.10 (2), 943.231 (1), 943.32, 943.87, 946.43, 948.02 (1) or (2), 948.025, 948.03, 948.04, 948.05, 948.051, 948.06, 948.07, 948.08, 948.085, or 948.30.

973.123(2) (2) A court shall impose a bifurcated sentence under s. 973.01 if the court sentences a person for committing a violent felony and the court finds that all of the following are true:

973.123(2)(a) (a) At the time the person committed the violent felony, he or she was subject to s. 941.29 because he or she was convicted of, adjudicated delinquent for, or found not guilty of by reason of mental disease or defect, committing, soliciting, conspiring, or attempting to commit a prior violent felony.

973.123(2)(b) (b) The person used a firearm in the commission of the violent felony for which the court is imposing the sentence.

973.123(3) (3) The confinement portion of a bifurcated sentence imposed pursuant to sub. (2) shall be:

973.123(3)(a) (a) Not less than 5 years if the violent felony is a Class A, Class B, Class C, Class D, Class E, Class F, or Class G felony.

973.123(3)(b) (b) Not less than 3 years if the violent felony is a Class H felony.

973.123(3)(c) (c) Not less than one year and 6 months if the violent felony is a Class I felony.

973.123(4) (4) If a court sentences a person under this section and also imposes a sentence pursuant to s. 941.29 (4m) arising from the same occurrence, the court shall order the person to serve the sentences consecutively.

973.123(5) (5) This section does not apply to sentences imposed after July 1, 2020.

973.123 History History: 2015 a. 109; 2021 a. 76, 209; 2023 a. 10.

973.125 973.125 Notice of lifetime supervision for serious sex offenders.

973.125(1) (1) Whenever a prosecutor decides to seek lifetime supervision under s. 939.615 of a person charged with a serious sex offense specified in s. 939.615 (1) (b) 1., the prosecutor shall, at any time before or at arraignment and before acceptance of any plea, state in the complaint, indictment or information or amendments to the complaint, indictment or information that the prosecution will seek to have the person placed on lifetime supervision under s. 939.615.

973.125(2) (2) Whenever a prosecutor decides to seek lifetime supervision under s. 939.615 of a person charged with a serious sex offense specified in s. 939.615 (1) (b) 2., the prosecutor shall, at any time before or at arraignment and before acceptance of any plea, do all of the following:

973.125(2)(a) (a) State in the complaint, indictment or information or amendments to the complaint, indictment or information that the prosecution will seek to have the person placed on lifetime supervision under s. 939.615.

973.125(2)(b) (b) Allege in the complaint that the violation with which the person is charged is a serious sex offense under s. 939.615 (1) (b) because one of the purposes for the conduct constituting the violation was for the person’s sexual arousal or gratification.

973.125(3) (3) Before accepting a plea, the court may, upon motion of the district attorney, grant a reasonable time to investigate whether lifetime supervision may be necessary for a defendant or whether one of the purposes for the conduct constituting a violation with which a defendant is charged was for the defendant’s sexual arousal or gratification.

973.125 History History: 1997 a. 275.

973.13 973.13 Excessive sentence, errors cured. In any case where the court imposes a maximum penalty in excess of that authorized by law, such excess shall be void and the sentence shall be valid only to the extent of the maximum term authorized by statute and shall stand commuted without further proceedings.

973.13 Annotation This section caps the length of a sentence reduced thereby, but it does not address other aspects or conditions of sentencing. The sentencing court may resentence the defendant if the new sentence is permitted by the law. State v. Holloway, 202 Wis. 2d 694, 551 N.W.2d 841 (Ct. App. 1996), 95-2575.

973.13 Annotation This section commands that all sentences in excess of that authorized by law be declared void, including the repeater portion of a sentence. Prior postconviction motions that failed to challenge the validity of the sentence do not bar seeking relief from faulty repeater sentences. State v. Flowers, 221 Wis. 2d 20, 586 N.W.2d 175 (Ct. App. 1998), 97-3682.

973.13 Annotation To allow the imposition of an unauthorized criminal penalty on the basis of waiver ignores the dictate of this section to alleviate all maximum penalties imposed in excess of that prescribed by law. State v. Hanson, 2001 WI 70, 244 Wis. 2d 405, 628 N.W.2d 759, 99-3142.

973.13 Annotation Flowers, 221 Wis. 2d 20 (1998), holds that neither Escalona-Naranjo, 185 Wis. 2d 168 (1994), nor s. 974.06 (4) bar motions challenging the foundation for the convictions sustaining the habitual criminal status that are properly brought under this section. However, this section as it pertains to sentencing a repeat offender applies only when the state fails to prove the prior conviction necessary to establish the habitual criminal status or when the penalty given is longer than permitted by law for a repeater. State v. Mikulance, 2006 WI App 69, 291 Wis. 2d 494, 713 N.W.2d 160, 05-1120.

973.13 Annotation This section, which commutes a sentence imposed that exceeds the maximum statutory penalty, does not provide a remedy when the sentence initially imposed did not exceed the maximum statutory penalty. State v. Finley, 2016 WI 63, 370 Wis. 2d 402, 882 N.W.2d 761, 14-2488.