302.113 Annotation While the recommendation of the Department of Corrections may be helpful and should be considered, the trial court owes no deference to the department’s sentencing recommendation after revocation of an offender’s extended supervision. The court should also consider the nature and severity of the original offense, the offender’s institutional conduct record, and the offender’s conduct and the nature of the violation of terms and conditions during extended supervision, as well as the amount of incarceration necessary to protect the public from the risk of further criminal activity. The court should impose the minimum amount of confinement consistent with the protection of the public, the gravity of the offense, and the offender’s rehabilitative needs. State v. Brown, 2006 WI 131, 298 Wis. 2d 37, 725 N.W.2d 262, 05-0584.

302.113 Annotation The Department of Corrections and the Division of Hearings and Appeals had jurisdiction to revoke extended supervision for a violation of the rules of supervision when an inmate was erroneously released to supervision while serving a bifurcated sentence and the initial term of incarceration had not been completed. State ex rel. Rupinski v. Smith, 2007 WI App 4, 297 Wis. 2d 749, 728 N.W.2d 1, 05-1760.

302.113 Annotation When a person is serving consecutive indeterminate and determinate sentences, extended supervision and parole are to be treated as one continuous period, and both may be revoked upon violation of the conditions imposed. State ex rel. Thomas v. Schwarz, 2007 WI 57, 300 Wis. 2d 381, 732 N.W.2d 1, 05-1487.

302.113 Annotation Under Brown, 2006 WI 131, the defendant has a right to allocution at a reconfinement hearing before the court pronounces its decision. State v. Hines, 2007 WI App 39, 300 Wis. 2d 485, 730 N.W.2d 434, 06-0846.

302.113 Annotation Sub. (9) (am) governs reconfinement procedure and sets forth the limits of a court’s exercisable discretion. It does not provide discretion for the court to consider eligibility for the challenge incarceration program or the earned release program under s. 973.01 (3g) and (3m). State v. Hall, 2007 WI App 168, 304 Wis. 2d 504, 737 N.W.2d 13, 06-1439.

302.113 Annotation The original sentencing transcript can be an important source of information in a reconfinement hearing and is generally readily available, but a circuit court is not required to read the original sentencing transcript in every case. Rather, the court should be familiar with the case and can gain the requisite familiarity in a number of ways that may differ from case to case. The court must decide which factors are relevant for consideration in any given case and use its discretion as to how it ascertains the information needed to consider the relevant factors. State v. Walker, 2008 WI 34, 308 Wis. 2d 666, 747 N.W.2d 673, 06-0562.

302.113 Annotation Sub. (4) and ss. 973.01 and 973.15 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.

302.113 Annotation Sub. (9) (b) keeps intact the bifurcated-sentence scheme established by s. 973.01. It indubitably follows that the reconfinement court has the same authority to impose conditions of extended supervision that follows the period of reconfinement as an original sentencing court has to impose conditions on the extended supervision that follows the period of initial confinement. State v. Harris, 2008 WI App 189, 315 Wis. 2d 537, 763 N.W.2d 206, 08-0778.

302.113 Annotation When a person waives a revocation hearing, the Department of Corrections (DOC) is required by sub. (9) (at) to make a recommendation to the court concerning the period of time the person should be returned to prison. The recommendation is more appropriately analogized to a presentence investigation report (PSI) at the original sentencing than a plea agreement. The securing of a PSI is solely within the judicial function to assist the judge in selecting an appropriate sentence. DOC does not function as an agent of either the state or the defense in fulfilling its PSI role under this section, and the prosecutor is not bound by a recommendation from DOC. State v. Washington, 2009 WI App 148, 321 Wis. 2d 508, 775 N.W.2d 535, 08-2359.

302.113 Annotation There is no indication Truth-in-Sentencing altered the substantive nature of the reconfinement decision. Rather, as before Truth-in-Sentencing, the reconfinement determination is part of the revocation process and therefore not a criminal proceeding. State v. Brimer, 2010 WI App 57, 324 Wis. 2d 408, 781 N.W.2d 726, 09-0817.

302.113 Annotation There is no authority under sub. (9) (am) or elsewhere for a defendant to use the defendant’s revocation and resultant reconfinement hearing as a vehicle for reducing the overall sentence imposed. A challenge to a post-revocation sentence does not bring the original judgment of conviction before the court. State v. Harris, 2012 WI App 79, 343 Wis. 2d 479, 819 N.W.2d 350, 11-0983.

302.113 Annotation Treating all sentences as one as required by sub. (4) and s. 302.11 (3) simply means that a defendant must serve all of the defendant’s initial confinement at once and must then serve all of the extended supervision at once. State v. Polar, 2014 WI App 15, 352 Wis. 2d 452, 842 N.W.2d 531, 13-1433.

302.113 Annotation 2011 Wis. Act 38 repealed or modified former sub. (2) (b) and s. 304.06 (1) (bg) 1., 2009 stats., which afforded certain prisoners convicted of Class F to Class I felonies an opportunity to earn early release from confinement, resulting in the petitioner being required to serve the full term of the initial confinement portion of the petitioner’s sentence. Because the law in effect when the petitioner was convicted afforded the petitioner the opportunity to be released earlier and the Act 38 modifications resulted in a significant risk of prolonging the petitioner’s incarceration, the portions of Act 38 that eliminated the petitioner’s eligibility for early release under the 2009 law violated the ex post facto clauses when applied to the petitioner’s offenses. State ex rel. Singh v. Kemper, 2014 WI App 43, 353 Wis. 2d 520, 846 N.W.2d 820, 13-1724.

302.113 Annotation Affirmed in part, reversed in part. 2016 WI 67, 371 Wis. 2d 127, 883 N.W.2d 86, 13-1724.

302.113 Annotation Discussing searches under 2013 Wis. Act 79’s reasonable suspicion standard. State v. Anderson, 2019 WI 97, 389 Wis. 2d 106, 935 N.W.2d 285, 17-1104.

302.113 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.

302.113 Annotation A search under sub. (7r), which requires reasonable suspicion of criminal activity or a violation of supervision, is constitutionally permissible. United States v. Caya, 956 F.3d 498 (2020).

302.113 Annotation Taking Reconfinement Hearings Seriously. Bizzaro. Wis. Law. Apr. 2007.

302.114 302.114 Petition for release and release to extended supervision for felony offenders serving life sentences.

302.114(1) (1) An inmate is subject to this section if he or she is serving a life sentence imposed under s. 973.014 (1g) (a) 1. or 2. An inmate serving a life sentence under s. 939.62 (2m) or 973.014 (1g) (a) 3. is not eligible for release to extended supervision under this section.

302.114(2) (2) Except as provided in subs. (3) and (9), an inmate subject to this section may petition the sentencing court for release to extended supervision after he or she has served 20 years, if the inmate was sentenced under s. 973.014 (1g) (a) 1., or after he or she has reached the extended supervision eligibility date set by the court, if the inmate was sentenced under s. 973.014 (1g) (a) 2.

302.114(3) (3) 

302.114(3)(a) (a) The warden or superintendent shall keep a record of the conduct of each inmate subject to this section, specifying each infraction of the rules. If any inmate subject to this section violates any regulation of the prison or refuses or neglects to perform required or assigned duties, the department may extend the extended supervision eligibility date set under s. 973.014 (1g) (a) 1. or 2., whichever is applicable, as follows:

302.114(3)(a)1. 1. Ten days for the first offense.

302.114(3)(a)2. 2. Twenty days for the 2nd offense.

302.114(3)(a)3. 3. Forty days for the 3rd or each subsequent offense.

302.114(3)(b) (b) In addition to the sanctions under par. (a), if an inmate subject to this section is placed in adjustment, program or controlled segregation status, the department may extend the extended supervision eligibility date set under s. 973.014 (1g) (a) 1. or 2., whichever is applicable, by a number of days equal to 50 percent of the number of days spent in segregation status. In administering this paragraph, the department shall use the definition of adjustment, program or controlled segregation status under departmental rules in effect at the time an inmate is placed in that status.

302.114(3)(c) (c) An inmate subject to this section who files an action or special proceeding, including a petition for a common law writ of certiorari, to which s. 807.15 applies shall have his or her extended supervision eligibility date set under s. 973.014 (1g) (a) 1. or 2., whichever is applicable, extended by the number of days specified in the court order prepared under s. 807.15 (3). Upon receiving a court order issued under s. 807.15, the department shall recalculate the date on which the inmate to whom the order applies will be entitled to petition for release to extended supervision and shall inform the inmate of that date.

302.114(4) (4) All consecutive sentences imposed for crimes committed on or after December 31, 1999, shall be computed as one continuous sentence. An inmate subject to this section shall serve any term of extended supervision after serving all terms of confinement in prison.