Period of probation, extended supervision or parole tolled. 304.072(1)(1)
If the department of corrections in the case of a parolee, probationer or person on extended supervision who is reinstated or waives a hearing or the division of hearings and appeals in the department of administration in the case of a hearing determines that a parolee, probationer or person on extended supervision has violated the terms of his or her supervision, the department or division may toll all or any part of the period of time between the date of the violation and the date an order of revocation or reinstatement is entered, subject to credit according to the terms of s. 973.155
for any time the parolee, probationer or person on extended supervision spent confined in connection with the violation.
If a parolee, probationer or person on extended supervision is alleged to have violated the terms of his or her supervision but the department or division determines that the alleged violation was not proven, the period between the alleged violation and the determination shall be treated as service of the probationary, extended supervision or parole period.
Except as provided in s. 973.09 (3) (b)
, the department preserves jurisdiction over a probationer, parolee or person on extended supervision if it commences an investigation, issues a violation report or issues an apprehension request concerning an alleged violation prior to the expiration of the probationer's, parolee's or person's term of supervision.
The sentence of a revoked parolee or person on extended supervision resumes running on the day he or she is received at a correctional institution subject to sentence credit for the period of custody in a jail, correctional institution or any other detention facility pending revocation according to the terms of s. 973.155
The sentence of a revoked probationer shall be credited with the period of custody in a jail, correctional institution or any other detention facility pending revocation and commencement of sentence according to the terms of s. 973.155
See also s. DOC 331.01
, Wis. adm. code.
The court could revoke a probation after the original probationary period had expired but the defendant had committed several crimes during the period. Williams v. State, 50 Wis. 2d 709
, 184 N.W.2d 844
Before the tolling statute applies, the department must make a final determination that a violation occurred. Locklear v. State, 87 Wis. 2d 392
, 274 N.W.2d 898
(Ct. App. 1978).
When revocation proceedings were initiated prior to expiration of the parole period, parole was properly revoked after the period expired. State ex rel. Avery v. Percy, 99 Wis. 2d 459
, 299 N.W.2d 886
(Ct. App. 1980).
The department may not grant jail credit where it is not provided for by statute. 71 Atty. Gen. 102
The preceding annotations concern s. 57.072, 1975 stats., [now s. 304.072] which was repealed and recreated by ch. 353, laws of 1977 and again by Act 528, laws of 1983
Sub. (3) applies to all parole violations that occur before the offender's date of discharge from his or her entire sentence. DOC had jurisdiction to revoke a 2nd period of parole for a violation that the defendant committed during his first, and later revoked, period of parole when the violation was not discovered until the 2nd parole period. Department of Corrections v. Schwarz, 2005 WI 34
, 279 Wis. 2d 223
, 693 N.W.2d 703
An offender who has had extended supervision revoked is entitled to sentence credit on any new charges until the trial court resentences him or her for the available remaining term of extended supervision. A reconfinement hearing is a sentencing, and the revocation is not. The defendant was entitled to sentence credit on the new charge from the date of his arrest until the day of sentencing on both charges because while his extended supervision was revoked, his resentencing had not yet occurred. State v. Presley, 2006 WI App 82
, 292 Wis. 2d 734
, 715 N.W.2d 713
A term of supervision under sub. (3) includes the nonconfinement and confinement time arising from the same sentencing decision. With regard to identifying a term of supervision, probation, incarceration, and extended supervision are each a component of the sentence. A person who initially serves a term of probation that is ultimately revoked, and following revocation serves a bifurcated prison term, can be revoked from that prison term's extended supervision component on the basis of a rules violation that occurred during the initial term of probation. McElvaney v. Schwarz, 2008 WI App 102
, 313 Wis. 2d 125
, 756 N.W.2d 441
The “sentence" to which sub. (4) refers is the sentence that was issued by the circuit court subsequent to conviction. Sub. (4) looks back at a sentence earlier commenced. In this case when the defendant's parole was revoked, the indeterminate sentence for the defendant's felony conviction caused reincarceration. The reincarceration order did not establish reincarceration as a new sentence. Rather, it was a continuation of the sentence meted out by the circuit court judge. Therefore, if the defendant had not received all the sentence credit that was available to apply to the felony sentence when that sentence was imposed, he could have received it when his parole was revoked. State v. Obriecht, 2015 WI 66
, 363 Wis. 2d 816
, 867 N.W.2d 387
Reimbursement fee for persons on probation, parole, and extended supervision. 304.074(2)(2)
The department shall charge a reasonable fee as determined by the department to probationers, parolees, and persons on extended supervision to partially reimburse the department for the costs of providing supervision and services and, as provided under s. 302.33 (2) (a) 3.
, to reimburse counties and tribal governing bodies. Subject to sub. (3m)
, the department shall collect moneys for the fees charged under this subsection and credit those moneys to the appropriation account under s. 20.410 (1) (gf)
The department may decide to waive for a period a fee under sub. (2)
for reasons established under department policy, including if the person is unemployed, has a health issue or is disabled, or is participating in education or treatment-related programming.
The department may not collect a fee charged under this section until all restitution payments due pursuant to any order under s. 973.20
from the probationer, parolee, or person on extended supervision have been paid.
If a probationer, parolee or person on extended supervision who owes unpaid fees to the department under sub. (2)
is discharged from probation or from his or her sentence before the department collects the unpaid fees, the department shall, at the time of discharge, issue a notice to the probationer, parolee or person on extended supervision that states that he or she owes unpaid fees under sub. (2)
and that he or she is responsible for the payment of the unpaid fees. The notice under this paragraph shall be issued with the certificate of discharge required under s. 304.078
or 973.09 (5)
The department may request the attorney general to bring a civil action to recover unpaid fees owed to the department under sub. (2)
by a person who has been discharged from probation or from his or her sentence and who, at the time of discharge, owed the department unpaid fees under sub. (2)
. Before requesting the attorney general to bring a civil action under this paragraph, the department shall deduct any fees owed to the department that were inaccurately assessed against the person.
The department shall promulgate rules providing the procedure and timing for collecting fees charged under sub. (2)
304.074 AnnotationArticle I, section 9m
, of the Wisconsin Constitution provides for restitution only insofar as the legislature confers such rights through statute. The legislature makes restitution available to crime victims under s. 973.20 and other statutes, but crime victims are not guaranteed restitution in every instance. Section 973.20 (12) (b) makes clear that restitution payments take priority over specific statutory fees, surcharges, fines, and costs, but the priority scheme does not include supervision fees under this section. OAG 2-15
Restoration of civil rights of convicted persons. 304.078(1)(a)
“Imprisonment" includes parole and extended supervision.
Except as provided in sub. (3)
, every person who is convicted of a crime obtains a restoration of his or her civil rights by serving out his or her term of imprisonment or otherwise satisfying his or her sentence. The certificate of the department or other responsible supervising agency that a convicted person has served his or her sentence or otherwise satisfied the judgment against him or her is evidence of that fact and that the person is restored to his or her civil rights. The department or other agency shall list in the person's certificate rights which have been restored and which have not been restored. Persons who served out their terms of imprisonment or otherwise satisfied their sentences prior to August 14, 1947, are likewise restored to their civil rights from and after September 25, 1959.
If a person is disqualified from voting under s. 6.03 (1) (b)
, his or her right to vote is restored when he or she completes the term of imprisonment or probation for the crime that led to the disqualification. The department or, if the person is sentenced to a county jail or house of correction, the jailer shall inform the person in writing at the time his or her right to vote is restored under this subsection.
History: 1987 a. 226
; 1989 a. 31
; Stats. 1989 s. 304.078; 2003 a. 121
A person convicted of a crime whose sentence has been satisfied may vote. 61 Atty. Gen. 260.
A convicted felon whose civil rights have been restored pursuant to s. 57.078 [now s. 304.078] is barred from the office of notary public unless he or she has been pardoned. 63 Atty. Gen. 74.
The operation of this section on a prior conviction is irrelevant to a conviction for which a prior conviction is a predicate. Roehl v. U.S. 977 F.2d 375
Applications for pardon; regulations.
All applications for pardon of any convict serving sentence of one year or more, except for pardons to be granted within 10 days next before the time when the convict would be otherwise entitled to discharge pursuant to law, shall be made and conducted in the manner hereinafter prescribed, and according to such additional regulations as may from time to time be prescribed by the governor.
History: 1989 a. 31
; Stats. 1989 s. 304.08.
Executive clemency in Wisconsin. Bauer, 1973 WLR 1154.
Notice of pardon application. 304.09(1)(a)
“Member of the family" means spouse, domestic partner under ch. 770
, child, sibling, parent or legal guardian.
“Victim" means a person against whom a crime has been committed.
The notice of the pardon application shall state the name of the convict, the crime of which he or she was convicted, the date and term of sentence and the date if known, when the application is to be heard by the governor. The notice shall be served on the following persons, if they can be found:
The judge who participated in the trial of the convict.
The district attorney who participated in the trial of the convict.
The victim or, if the victim is dead, an adult member of the victim's family.
The notice shall inform the persons under sub. (2)
of the manner in which they may provide written statements or participate in any applicable hearing. The applicant shall serve notice on the persons under sub. (2) (a)
at least 3 weeks before the hearing of the application. The governor shall make a reasonable attempt to serve notice on the person under sub. (2) (c)
at least 3 weeks before the hearing of the application. The notice shall be published at least once each week for 2 successive weeks before the hearing in a newspaper of general circulation in the county where the offense was committed. If there is no such newspaper, the notice shall be posted in a conspicuous place on the door of the courthouse of the county for 3 weeks before the hearing and published once each week for 2 consecutive weeks before the hearing in a newspaper published in an adjoining county. Publication as required in this subsection shall be completed by a date designated by the governor. The date shall be a reasonable time prior to the hearing date.
History: 1983 a. 364
; 1989 a. 31
; Stats. 1989 s. 304.09; 1997 a. 181
; 2009 a. 28
Pardon application papers; victim's statement. 304.10(1)(1)
An application for pardon shall be accompanied by the following papers:
Notice of application and acknowledgments or affidavits showing due service and affidavits showing due publication and posting whenever required;
A certified copy of the court record entries, the indictment or information, and any additional papers on file in the court, if obtainable, as the governor requires;
A full sworn statement by the applicant of all facts and reasons upon which the application is based;
Written statements by the judge and the district attorney who tried the case, if obtainable, indicating their views regarding the application and stating any circumstances within their knowledge in aggravation or extenuation of the applicant's guilt;
A certificate of the keeper of the prison where the applicant has been confined showing whether the applicant has conducted himself or herself in a peaceful and obedient manner.
When a victim or member of the victim's family receives notice under s. 304.09 (3)
, he or she may provide the governor with written statements indicating his or her views regarding the application and stating any circumstances within his or her knowledge in aggravation or extenuation of the applicant's guilt. Upon receipt of any such statement, the governor shall place the statement with the other pardon application papers.
Any statement or paper containing a reference to the address of a victim or a member of the victim's family which is contained in a statement or other paper accompanying a pardon application is not subject to s. 19.35
and shall be closed to the public. The governor, using the procedure under s. 19.36 (6)
, shall delete any reference to the address in any statement or paper made public.
History: 1983 a. 364
; 1989 a. 31
; Stats. 1989 s. 304.10; 1991 a. 269
; 1995 a. 224
Conditional pardon; enforcement. 304.11(1)(1)
In case a pardon is granted upon conditions the governor may issue a warrant to carry the conditions into effect.
If it appears to the governor during the term of the sentence that the convicted person violated or failed to comply with any such condition, the governor may issue a warrant to any sheriff commanding the sheriff to arrest the convicted person and bring the convicted person before the governor.
If upon inquiry it further appears to the governor that the convicted person has violated or failed to comply with any of those conditions, the governor may issue his or her warrant remanding the person to the institution from which discharged, and the person shall be confined and treated as though no pardon had been granted, except that the person loses any applicable good time which he or she had earned. If the person is returned to prison, the person is subject to the same limitations as a revoked parolee under s. 302.11 (7)
. The department shall determine the period of incarceration under s. 302.11 (7) (am)
. If the governor determines the person has not violated or failed to comply with the conditions, the person shall be discharged subject to the conditional pardon.
History: 1983 a. 528
; 1989 a. 31
; Stats. 1989 s. 304.11; 1991 a. 316
; 2001 a. 109
When an emergency exists which in the opinion of the secretary makes it advisable, the secretary may permit the temporary removal of a convicted person for such period and upon such conditions as the secretary determines. The secretary may delegate this authority to the deputy and the wardens and superintendents of the state prisons.
History: 1989 a. 31
; Stats. 1989 s. 304.115.
See also s. DOC 325.02
, Wis. adm. code.
Execution and record of warrants.
When a convicted person is pardoned or the person's sentence is commuted, or the person is remanded to prison for the violation of any of the conditions of that person's pardon, the officer to whom the warrant is issued after executing it shall make return thereon to the governor forthwith and shall file with the clerk of the court in which the offender was convicted a certified copy of the warrant and return, and the clerk shall enter and file the same with the records of the case.
History: 1989 a. 31
; Stats. 1989 s. 304.12; 1991 a. 316
Uniform act for out-of-state parolee supervision; state compacts. 304.13(1m)(1m)
The governor of this state is authorized and directed to enter into a compact on behalf of this state with any state of the United States legally joining therein in the form substantially as follows:
Entered into by and among the contracting states, signatories hereto, with the consent of the congress of the United States of America, granted by an act entitled “An act granting the consent of congress to any two or more states to enter into agreements or compacts for cooperative effort and mutual assistance in the prevention of crime and for other purposes".
The contracting states solemnly agree:
That it shall be competent for the duly constituted judicial and administrative authorities of a sending state to permit any person convicted of an offense within the sending state and placed on probation or released on extended supervision or parole to reside in any receiving state while on probation, extended supervision or parole, if:
Such person is in fact a resident of or has family residing within the receiving state and can obtain employment there; or
Though not a resident of the receiving state and not having family residing there, the receiving state consents to such person being sent there.
Before granting such permission, opportunity shall be granted to the receiving state to investigate the home and prospective employment of such person.
A resident of the receiving state, within the meaning of this subsection, is one who has been an actual inhabitant of such state continuously for more than one year prior to coming to the sending state and has not resided within the sending state more than 6 continuous months immediately preceding the commission of the offense for which that person has been convicted.
That each receiving state will assume the duties of visitation of and supervision over probationers, persons on extended supervision or parolees of any sending state and in the exercise of those duties will be governed by the same standards that prevail for its own probationers, persons on extended supervision and parolees.
That the duly accredited officers of a sending state may at all times enter a receiving state and there apprehend and retake any person on probation, extended supervision or parole. For that purpose no formalities will be required other than establishing the authority of the officer and the identity of the person to be retaken. All legal requirements to obtain extradition of fugitives from justice are expressly waived on the part of states party hereto, as to such persons. The decision of the sending state to retake a person on probation, extended supervision or parole shall be conclusive upon and not reviewable within the receiving state; provided, however, that if at the time when a state seeks to retake a probationer, person on extended supervision or parolee there should be pending against that person within the receiving state any criminal charge, or that person should be suspected of having committed within such state a criminal offense, that person shall not be retaken without the consent of the receiving state until discharged from prosecution or from imprisonment for such offense.
That the duly accredited officers of the sending state will be permitted to transport prisoners being retaken through any and all such states parties to this compact, without interference.
That the governor of each state may designate an officer who, acting jointly with like officers of other contracting states, if and when appointed, shall promulgate such rules and regulations as may be deemed necessary to more effectively carry out the terms of this compact.
That this compact shall become operative immediately upon its ratification by any state as between it and any other state or states so ratifying. When ratified it shall have the full force and effect of law within such state, the form of ratification to be in accordance with the laws of the ratifying state.
That this compact shall continue in force and remain binding upon such ratifying state until renounced by it. The duties and obligations hereunder of a renouncing state shall continue as to parolees, persons on extended supervision or probationers residing therein at the time of withdrawal or until finally discharged by the sending state. Renunciation of this compact shall be by the same authority which ratified it, by sending 6 months' notice in writing of its intention to withdraw the compact to the other states party thereto.