Chapter 973

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.

973.135 973.135 Courts to report convictions to the state superintendent of public instruction.

973.135(1) (1) In this section:

973.135(1)(a) (a) “Educational agency” has the meaning given in s. 115.31 (1) (b).

973.135(1)(b) (b) “State superintendent” means the state superintendent of public instruction.

973.135(2) (2) If a court determines that a person convicted of a crime specified in ch. 948, including a crime specified in s. 948.015, a felony for which the maximum term of imprisonment is at least 5 years, 4th degree sexual assault under s. 940.225 (3m) or a crime in which the victim was a child, is employed by an educational agency, the clerk of the court in which such conviction occurred shall promptly forward to the state superintendent the record of conviction.

973.135(3) (3) If a conviction under sub. (2) is reversed, set aside or vacated, the clerk of the court shall promptly forward to the state superintendent a certificate stating that the conviction has been reversed, set aside or vacated.

973.135 History History: 1991 a. 42; 1995 a. 27; 1997 a. 27, 35.

973.137 973.137 Courts to report convictions to the department of transportation. Upon conviction of a person for any of the following offenses, the clerk of the court in which such conviction occurred shall promptly forward the record of conviction to the department of transportation:

973.137(1) (1) A violation of s. 941.235.

973.137(1m) (1m) A violation of s. 947.015, if the property involved is owned or leased by the state or any political subdivision of the state, or if the property involved is a school premises, as defined in s. 948.61 (1) (c).

973.137(2) (2) A violation of s. 948.605.

973.137 History History: 2003 a. 200.

973.14 973.14 Sentence to house of correction.

973.14(1) (1) In addition to the authority in ss. 302.18 and 303.18, prisoners sentenced to a county jail may be transferred by the sheriff to a house of correction without court approval.

973.14(2) (2) Prisoners confined in the house of correction may be transferred by the superintendent of the house of correction to the county jail without court approval.

973.14(3) (3) A prisoner sentenced to a county jail or the house of correction being held in a county jail awaiting trial on another charge shall be deemed to be serving the county jail or house of correction sentence and shall be given credit on the sentence as provided in s. 302.43 or 303.19.

973.14 History History: 1977 c. 126; 1989 a. 31.

973.15 973.15 Sentence, terms, escapes.

973.15(1) (1) Except as provided in s. 973.032, all sentences to the Wisconsin state prisons shall be for one year or more. Except as otherwise provided in this section, all sentences commence at noon on the day of sentence, but time which elapses after sentence while the convicted offender is at large on bail shall not be computed as any part of the term of imprisonment.

973.15(2) (2) 

973.15(2)(a) (a) Except as provided in par. (b), the court may impose as many sentences as there are convictions and may provide that any such sentence be concurrent with or consecutive to any other sentence imposed at the same time or previously.

973.15(2)(b) (b) The court may not impose a sentence to the intensive sanctions program consecutive to any other sentence. The court may not impose a sentence to the intensive sanctions program concurrent with a sentence imposing imprisonment, except that the court may impose a sentence to the program concurrent with an imposed and stayed imprisonment sentence or with a prison sentence for which the offender has been released on extended supervision or parole. The court may impose concurrent intensive sanctions program sentences. The court may impose an intensive sanctions program sentence concurrent to probation. The court may impose any sentence for an escape from a sentence to the intensive sanctions program concurrent with the sentence to the intensive sanctions program.

973.15(2m) (2m) 

973.15(2m)(a) (a) Definitions. In this subsection:

973.15(2m)(a)1. 1. “Determinate sentence” means a bifurcated sentence imposed under s. 973.01 or a life sentence under which a person is eligible for release to extended supervision under s. 973.014 (1g) (a) 1. or 2.

973.15(2m)(a)2. 2. “Indeterminate sentence” means a sentence to the Wisconsin state prisons other than one of the following:

973.15(2m)(a)2.a. a. A determinate sentence.

973.15(2m)(a)2.b. b. A sentence under which the person is not eligible for release on parole under s. 939.62 (2m) (c) or 973.014 (1) (c).

973.15(2m)(a)3. 3. “Period of confinement in prison,” with respect to any sentence to the Wisconsin state prisons, means any time during which a person is incarcerated under that sentence, including any extensions imposed under s. 302.11 (3), 302.113 (3), or 302.114 (3) and any period of confinement in prison required to be served under s. 302.11 (7) (am), 302.113 (9) (am), or 302.114 (9) (am).

973.15(2m)(b) (b) Determinate sentences imposed to run concurrent with or consecutive to determinate sentences.

973.15(2m)(b)1. 1. If a court provides that a determinate sentence is to run concurrent with another determinate sentence, the person sentenced shall serve the periods of confinement in prison under the sentences concurrently and the terms of extended supervision under the sentences concurrently.

973.15(2m)(b)2. 2. If a court provides that a determinate sentence is to run consecutive to another determinate sentence, the person sentenced shall serve the periods of confinement in prison under the sentences consecutively and the terms of extended supervision under the sentences consecutively and in the order in which the sentences have been pronounced.

973.15(2m)(c) (c) Determinate sentences imposed to run concurrent with or consecutive to indeterminate sentences.

973.15(2m)(c)1. 1. If a court provides that a determinate sentence is to run concurrent with an indeterminate sentence, the person sentenced shall serve the period of confinement in prison under the determinate sentence concurrent with the period of confinement in prison under the indeterminate sentence and the term of extended supervision under the determinate sentence concurrent with the parole portion of the indeterminate sentence.

973.15(2m)(c)2. 2. If a court provides that a determinate sentence is to run consecutive to an indeterminate sentence, the person sentenced shall serve the period of confinement in prison under the determinate sentence consecutive to the period of confinement in prison under the indeterminate sentence.

973.15(2m)(d) (d) Indeterminate sentences imposed to run concurrent with or consecutive to determinate sentences.

973.15(2m)(d)1. 1. If a court provides that an indeterminate sentence is to run concurrent with a determinate sentence, the person sentenced shall serve the period of confinement in prison under the indeterminate sentence concurrent with the period of confinement in prison under the determinate sentence and the parole portion of the indeterminate sentence concurrent with the term of extended supervision required under the determinate sentence.

973.15(2m)(d)2. 2. If a court provides that an indeterminate sentence is to run consecutive to a determinate sentence, the person sentenced shall serve the period of confinement in prison under the indeterminate sentence consecutive to the period of confinement in prison under the determinate sentence.

973.15(2m)(e) (e) Revocation in multiple sentence cases. If a person is serving concurrent determinate sentences and extended supervision is revoked in each case, or if a person is serving a determinate sentence concurrent with an indeterminate sentence and both extended supervision and parole are revoked, the person shall concurrently serve any periods of confinement in prison required under those sentences under s. 302.11 (7) (am), 302.113 (9) (am), or 302.114 (9) (am).

973.15(3) (3) Courts may impose sentences to be served in whole or in part concurrently with a sentence being served or to be served in a federal institution or an institution of another state.

973.15(4) (4) When a court orders a sentence to the Wisconsin state prisons to be served in whole or in part concurrently with a sentence being served or to be served in a federal institution or an institution of another state:

973.15(4)(a) (a) The court shall order the department to immediately inform the appropriate authorities in the jurisdiction where the prior sentence is to be served that the convicted offender is presently available to commence or resume serving that sentence; and

973.15(4)(b) (b) The trial and commitment records required under s. 973.08 shall be delivered immediately to the warden or superintendent of the Wisconsin institution designated as the reception center to receive the convicted offender when he or she becomes available to Wisconsin authorities.

973.15(5) (5) A convicted offender who is made available to another jurisdiction under ch. 976 or in any other lawful manner shall be credited with service of his or her Wisconsin sentence or commitment under the terms of s. 973.155 for the duration of custody in the other jurisdiction.

973.15(6) (6) Sections 302.11 and 304.06 are applicable to an inmate serving a sentence to the Wisconsin state prisons for a crime committed before December 31, 1999, but confined in a federal institution or an institution in another state.

973.15(7) (7) If a convicted offender escapes, the time during which he or she is unlawfully at large after escape shall not be computed as service of the sentence.

973.15(8) (8) 

973.15(8)(a) (a) The sentencing court may stay execution of a sentence of imprisonment or to the intensive sanctions program only:

973.15(8)(a)1. 1. For legal cause;

973.15(8)(a)2. 2. Under s. 973.09 (1) (a); or

973.15(8)(a)3. 3. For not more than 60 days, except that the court may not stay execution of a person’s sentence of imprisonment or to the intensive sanctions program under this subdivision if the sentence is for a 3rd or subsequent violation that is counted as a suspension, revocation, or conviction under s. 343.307, or a violation of s. 940.09 (1) or 940.25 in the person’s lifetime, or a combination thereof.

973.15(8)(b) (b) If a court sentences a person under s. 973.03 (5) (b), this subsection applies only to the first period of imprisonment.

973.15 History History: 1973 c. 90; 1977 c. 347, 353, 447; 1981 c. 50, 292; 1983 a. 528; 1989 a. 31, 85; 1991 a. 39; 1993 a. 79; 1995 a. 390; 1997 a. 283; 2001 a. 109; 2009 a. 100.

973.15 Note Judicial Council Note, 1981: Sub. (2) has been simplified to allow a court, in imposing a criminal sentence, to order that it be concurrent with or consecutive to any other sentence imposed at the same time or previously. The prior statute, although lengthier and more complicated, failed to achieve its apparent purpose of allowing consecutive sentencing in situations involving probation and parole revocations, escapes, etc. See Drinkwater v. State, 69 Wis. 2d 60 (1975); Guyton v. State, 69 Wis. 2d 663 (1975); Bruneau v. State, 77 Wis. 2d 166 (1977); Smith v. State, 85 Wis. 2d 650 (1978); and Donaldson v. State, 93 Wis. 2d 306 (1980).

973.15 Note This revision allows sentences to be made consecutive to any previously or simultaneously imposed sentence, without regard to whether the offender is “then serving” such sentence, is subject to parole revocation proceedings, or has received a new sentence between the time of an escape and a return to a state facility. The revised statute also governs the sentencing of probationers by virtue of the cross-references in ss. 973.09 (1) (a) and 973.10 (2) (a). [Bill 341-A]

973.15 Note Judicial Council Note, 1981: Sub. (8) has been added to specify the circumstances under which execution of a sentence of imprisonment may be stayed. Par. (a) references the rule of Reinex v. State, 51 Wis. 152 (1881) and Weston v. State, 28 Wis. 2d 136 (1965), whereby execution can be stayed for “legal cause”, such as during the pendency of an appeal. Par. (b) cross-references the probation statute. Par. (c) is new. It allows the court to delay the commencement of a sentence for up to 60 days. The Wisconsin supreme court recently held that courts have no authority to stay execution of a sentence of imprisonment in the absence of such a statutory provision or legal cause. State v. Braun, 100 Wis. 2d 77 (1981). [Bill 736-A]

973.15 Annotation Under subs. (2) and (3), a court may impose a sentence consecutive to an out-of-state sentence. State v. Toy, 125 Wis. 2d 216, 371 N.W.2d 386 (Ct. App. 1985).

973.15 Annotation A sentencing court has authority to stay a sentence and order it be served consecutive to a ss. 345.47 and 973.07 commitment for failure to pay a fine and penalty assessment. State v. Strohbeen, 147 Wis. 2d 566, 433 N.W.2d 288 (Ct. App. 1988).

973.15 Annotation An adult sentence cannot run consecutive to a juvenile disposition. State v. Woods, 173 Wis. 2d 129, 496 N.W.2d 144 (Ct. App. 1992).

973.15 Annotation The sentence of a defendant convicted of committing a crime while committed under a prior not guilty by reason of mental incompetence commitment under s. 971.17 may not be served concurrent with the commitment. State v. Szulczewski, 209 Wis. 2d 1, 561 N.W.2d 781 (Ct. App. 1997), 96-1323.

973.15 Annotation A court may not order a prison sentence consecutive to a s. 971.17 commitment. A sentence can only be imposed concurrent or consecutive to another sentence. State v. Harr, 211 Wis. 2d 584, 568 N.W.2d 307 (Ct. App. 1997), 96-2815.

973.15 Annotation The power under sub. (2) to impose consecutive sentences does not grant authority to impose a sentence to be served consecutively to jail time being served as a condition of probation. State v. Maron, 214 Wis. 2d 384, 571 N.W.2d 454 (Ct. App. 1997), 97-0790.

973.15 Annotation A commitment under s. 971.17 is legal cause under sub. (8) to stay the sentence of a defendant who commits a crime while serving the commitment. Whether to stay the sentence while the commitment is in effect or to begin the sentence immediately is within the sentencing court’s discretion. State v. Szulczewski, 216 Wis. 2d 495, 574 N.W.2d 660 (1998), 96-1323.

973.15 Annotation Sub. (2) authorizes a trial court to impose a sentence consecutive to a previously imposed sentence upon revocation of parole on that sentence. Prior revocation of parole on the earlier sentence is not required before a consecutive sentence may be issued. State v. Cole, 2000 WI App 52, 233 Wis. 2d 577, 608 N.W.2d 432, 98-3336.

973.15 Annotation That a sentence begins at noon under sub. (1) was not relevant to a double jeopardy analysis in regard to a sentence pronounced in the morning and then corrected and lengthened the same afternoon before the judgment was entered into the record. State v. Burt, 2000 WI App 126, 237 Wis. 2d 610, 614 N.W.2d 42, 99-1209.

973.15 Annotation Double jeopardy prevents a court that, under a mistaken view of the law, entered a valid concurrent sentence from three months later revising the sentence to be a consecutive sentence. State v. Willett, 2000 WI App 212, 238 Wis. 2d 621, 618 N.W.2d 881, 99-2671.

973.15 Annotation This section and ss. 302.113 (4) and 973.01 establish that consecutive periods of extended supervision are to be served consecutively, aggregated into one continuous period, so that revocation of extended supervision at any time allows revocation as to all consecutive sentences. State v. Collins, 2008 WI App 163, 314 Wis. 2d 653, 760 N.W.2d 438, 07-2580.

973.15 Annotation A sentencing court may consider a Correctional Offender Management Profiling for Alternative Sanctions (COMPAS) risk assessment at sentencing without violating a defendant’s right to due process if the risk assessment is used properly with an awareness of the limitations and cautions set forth in the opinion. Risk scores may not be used: 1) to determine whether an offender is incarcerated; or 2) to determine the severity of the sentence. Additionally, risk scores may not be used as the determinative factor in deciding whether an offender can be supervised safely and effectively in the community. Any Presentence Investigation Report (PSI) containing a COMPAS risk assessment must contain a written advisement listing those limitations and informing sentencing courts of certain cautions set forth in the opinion. State v. Loomis, 2016 WI 68, 371 Wis. 2d 235, 881 N.W.2d 749, 15-0157.

973.15 Annotation Even if a convicted offender is made available to another jurisdiction, under sub. (5)’s own terms, sentence credit must conform to the terms of s. 973.155. The language of sub. (5) is unambiguous: credit is due under the provision only if it is warranted under s. 973.155, which includes the factual-connection test found in s. 973.155 (1) (a). State v. Lira, 2021 WI 81, 399 Wis. 2d 419, 966 N.W.2d 605, 19-0691.

973.15 Annotation The “legal cause” in sub. (8) (a) 1. addresses institutional functions, like a stay pending appeal or a stay to consolidate sentencing matters, or a stay to achieve the objectives of s. 971.17 for a person found not guilty by reason of mental disease or defect. Imposing a stay to personally accommodate a defendant is not legal cause. State v. Shirikian, 2023 WI App 13, 406 Wis. 2d 633, 987 N.W.2d 819, 21-0859.

973.15 Annotation Overcrowding does not constitute legal cause under sub. (8) (a). 76 Atty. Gen. 165.

973.155 973.155 Sentence credit.

973.155(1) (1) 

973.155(1)(a) (a) A convicted offender shall be given credit toward the service of his or her sentence for all days spent in custody in connection with the course of conduct for which sentence was imposed. As used in this subsection, “actual days spent in custody” includes, without limitation by enumeration, confinement related to an offense for which the offender is ultimately sentenced, or for any other sentence arising out of the same course of conduct, which occurs:

973.155(1)(a)1. 1. While the offender is awaiting trial;

973.155(1)(a)2. 2. While the offender is being tried; and

973.155(1)(a)3. 3. While the offender is awaiting imposition of sentence after trial.

973.155(1)(b) (b) The categories in par. (a) and sub. (1m) include custody of the convicted offender which is in whole or in part the result of a probation, extended supervision or parole hold under s. 302.113 (8m), 302.114 (8m), 304.06 (3), or 973.10 (2) placed upon the person for the same course of conduct as that resulting in the new conviction.

973.155(1m) (1m) A convicted offender shall be given credit toward the service of his or her sentence for all days spent in custody as part of a substance abuse treatment program that meets the requirements of s. 165.95 (3), as determined by the department of justice under s. 165.95 (9) and (10), for any offense arising out of the course of conduct that led to the person’s placement in that program.

973.155(2) (2) After the imposition of sentence, the court shall make and enter a specific finding of the number of days for which sentence credit is to be granted, which finding shall be included in the judgment of conviction. In the case of revocation of probation, extended supervision or parole, the department, if the hearing is waived, or the division of hearings and appeals in the department of administration, in the case of a hearing, shall make such a finding, which shall be included in the revocation order.