The convenience of the parties and the proposed witness and the cost of producing the witness in relation to the importance of the offered testimony.
Whether the procedure would allow full effective cross-examination, especially where availability to counsel of documents and exhibits available to the witness would affect such cross-examination.
The importance of presenting the testimony of witnesses in open court, where the finder of fact may observe the demeanor of the witness, and where the solemnity of the surroundings will impress upon the witness the duty to testify truthfully.
Whether the quality of the communication is sufficient to understand the offered testimony.
Whether a physical liberty interest is at stake in the proceeding.
Financial or physical limitations on the ability of the defendant or counsel for the defendant to be physically present.
Any other factors as the court may, in each individual case, determine to be relevant.
History: 2009 a. 402
; 2019 a. 70
; s. 35.17 correction in (intro.), (2) (c).
If the court finds a defendant guilty, the court may render judgment by ordering any of the following:
A forfeiture, plus costs, fees, and surcharges imposed under ch. 814
An operating privilege suspension or revocation if authorized by law.
The court shall apply any payment received on a judgment that includes restitution to first satisfy any payment of restitution ordered, then to pay the forfeiture, costs, fees, and surcharges.
The court may defer payment of any judgment or provide for installment payments. At the time that the judgment is rendered, the court shall inform the defendant, orally and in writing, of the date by which restitution and the payment of the forfeiture, plus costs, fees, and surcharges imposed under ch. 814
, must be made, and of the possible consequences of failure to do so in timely fashion, including imprisonment, as provided in s. 800.095
, or suspension of the defendant's motor vehicle operating privilege, as provided in sub. (1b) (c)
, if applicable. In addition, the court shall inform the defendant, orally and in writing, that the defendant should notify the court if he or she is unable to pay the judgment because of poverty, as that term is used in s. 814.29 (1) (d)
, and that he or she may request community service in lieu of payment of the judgment. If the defendant is not present, the court shall ensure that the information is sent to the defendant by mail. If the defendant is present and the court, using the criteria in s. 814.29 (1) (d)
, determines that the defendant is unable to pay the judgment because of poverty, the court shall provide the defendant with an opportunity to pay the judgment in installments, taking into account the defendant's income, or to perform community service in lieu of payment of the judgment. In 1st class cities, all of the written information required by this subsection shall be printed in English and Spanish and provided to each defendant.
If the court orders the defendant to perform community service work in lieu of making restitution or of paying the forfeiture, surcharges, fees and costs, or both, the court may order that the defendant perform community service work for a public agency or a nonprofit charitable organization that is approved by the court and agreed to by the public agency or nonprofit charitable organization. Community service work may be in lieu of restitution only if also agreed to by the person to whom restitution is owed. The number of hours of community service work required may not exceed the number determined by dividing the amount owed on the forfeiture by the minimum wage established under s. 104.035 (1)
. The court shall ensure that the defendant is provided a written statement of the terms of the community service order and that the community service order is monitored.
If the operating privilege of a defendant is suspended under this section or s. 800.095
, the court may terminate that suspension and substitute an installment payment plan for paying the amount of the judgment that takes into account the defendant's income.
If the operating privilege of a defendant is suspended under this section or s. 800.095
, the court shall terminate that suspension and substitute an installment payment plan for the payment of the amount of the judgment that takes into account the defendant's income if all of the following conditions apply:
The defendant has not previously failed to comply with an installment payment plan ordered under this section that takes into account the defendant's income.
If the defendant fails to comply with an installment payment plan ordered under this subsection, the court shall reinstate the suspension of the defendant's operating privilege.
Notwithstanding s. 755.045
or 800.115 (2)
, no municipal judgment alleged by the defendant to be void due to the existence of a conviction, suspension, or revocation arising from another matter that existed at the time of the municipal judgment shall be considered void by any court unless the defendant disclosed the conviction, suspension, or revocation with specificity and in writing to the municipal court and to the prosecuting attorney prior to the entry of the municipal judgment.
Section 343.30 (5) does not preclude the suspension of operating privileges under this section or s. 800.095. Suspension of operating privileges for failure to pay non-traffic forfeitures is not an unconstitutional exercise of the police power or an unconstitutionally excessive fine. City of Milwaukee v. Kilgore, 193 Wis. 2d 168
, 532 N.W.2d 690
A municipal court is not authorized under former s. 885.04, 2017 stats., to subpoena persons outside of the state; thus the court in this case could not order an out of state defendant to appear in person. There is no inherent authority in the court authorizing such an order. City of Sun Prairie v. Davis, 226 Wis. 2d 738
, 595 N.W.2d 635
The court, in addition to ordering any payment authorized by law, may order a defendant to make full or partial restitution under this section to any victim or, if the victim is deceased, to his or her estate if the court finds all of the following:
The defendant is guilty of violating a nontraffic ordinance or an ordinance authorizing restitution under s. 346.65 (2r)
The violation resulted in damage to or theft of the property of or physical injury to or death of a person other than the defendant.
Restitution ordered under this section is enforceable in a civil action by the victim named in the order to receive restitution. A court may not order a defendant to pay more than the amount specified in s. 799.01 (1) (d)
in restitution under this section.
If the violation resulted in damage to or loss or destruction of property, the restitution order may require that the defendant do one of the following:
Return the property to the owner or owner's designee.
If return of the property under par. (a)
is impossible, impractical or inadequate, pay the owner or owner's designee, subject to the limit in sub. (2)
, the reasonable repair or replacement cost or the greater of the following:
The value of the property on the date of its damage, loss or destruction.
The value of the property on the date judgment is rendered, less the value of any part of the property returned, as of the date of its return. The value of retail merchandise shall be its retail value.
If the violation resulted in physical injury, the restitution order may require that the defendant do one or more of the following, subject to the limit in sub. (2)
Pay an amount equal to the cost of necessary medical and related professional services and devices relating to physical, psychiatric or psychological care and treatment.
Reimburse the injured person for income lost as a result of the violation.
If the injured person's sole employment at the time of the injury was performing the duties of a homemaker, pay an amount sufficient to reimburse the person for any payments made to another to perform those duties from the date of the injury and to ensure that the duties are continued until the person is able to resume performance of the duties.
The restitution order may require that the defendant do one or more of the following, subject to the limit in sub. (2)
Pay all special damages, but not general damages, including, but without limitation because of enumeration, the money equivalent of loss resulting from property taken, destroyed, broken or otherwise harmed and out-of-pocket losses, such as medical expenses, substantiated by evidence in the record, that could be recovered in a civil action against the defendant for his or her conduct in the commission of the violation.
Pay an amount equal to the income lost, and reasonable out-of-pocket expenses incurred, by the person against whom the violation was committed as a result of the commencement of the action or of cooperating in the investigation and prosecution of the violation.
If justice so requires, reimburse any insurer, surety or other person who has compensated a victim for a loss otherwise compensable under this section.
If the court orders that restitution be paid to more than one person, the court may direct the sequence in which payments are to be made. The court shall order that all restitution to victims be made before restitution to other persons. If more than one defendant is ordered to make payments to the same person, the court may apportion liability between the defendants or specify joint and several liability. If the court specifies that 2 or more defendants are jointly and severally liable, the court shall distribute any overpayments so that each defendant, as closely as possible, pays the same proportion of the ordered restitution.
Restitution ordered under this section does not limit or impair the right of a victim to sue and recover damages from the defendant in a civil action. The fact that restitution was required or made is not admissible as evidence in that civil action and has no legal effect on the merits of the civil action. Any restitution made by payment or community service shall be set off against any judgment in favor of the victim in a civil action arising out of the facts or events that were the basis for the restitution. The court trying that civil action shall hold a separate hearing to determine the validity and amount of any setoff asserted by the defendant.
The court, in determining whether to order restitution and the amount thereof, shall consider all of the following:
The amount of loss suffered by any victim as a result of the violation.
The present and future earning ability of the defendant.
The needs and earning ability of the defendant's dependents.
If the court finds that the conditions in sub. (1)
are met, the court may hold the restitution hearing at the time of any appearance by the defendant before the court or may summon the defendant to appear to determine if restitution shall be ordered. The court shall give the victim an opportunity to present evidence and arguments pertaining to the factor specified in par. (a) 1.
The court shall give the defendant the opportunity to present evidence and arguments on the factors specified in par. (a)
. The victim has the burden of demonstrating by the preponderance of the evidence the amount of loss sustained as a result of the violation. The defendant has the burden of demonstrating by the preponderance of the evidence the factors specified in par. (a) 2.
When hearing evidence as to the factors specified in par. (a)
, the court may waive the rules of practice, procedure, pleading and evidence, except provisions relating to privileged communications and personal transactions or communication with a decedent or mentally ill person.
Nonpayment of monetary judgment. 800.095(1)(1)
If the defendant fails to pay a monetary judgment ordered by the court, the court may order any one of the following, or any combination of the following, except as provided in sub. (3)
Suspension of the defendant's operating privilege until the defendant pays the judgment, but not to exceed one year. If the court orders suspension under this paragraph, all of the following apply:
The court shall notify the department of transportation of the suspension for failure to pay the judgment. If the defendant pays the judgment, the court shall notify the department of transportation of the payment within 7 days in the form and manner prescribed by the department.
The court may order the suspension concurrent or consecutive to any other suspensions or revocations. If the court fails to specify whether the suspension is consecutive or concurrent, the department of transportation shall implement the suspension concurrent with any other suspensions or revocations.
If the judgment remains unpaid at the end of the one-year suspension, the court may not order a further suspension of operating privileges in relation to the outstanding judgment.
If the court terminates the defendant's suspension as the result of the defendant's agreement to a payment plan or community service and the defendant is later suspended because he or she defaults on that plan or service, the new suspension shall be reduced by the amount of time that the suspension was served before being terminated by the court.
Serving the complete one-year suspension of the defendant's operating privilege does not relieve the defendant of the responsibility to pay the judgment.
During the period of operating privilege suspension under this paragraph, the defendant may request the court to reconsider the order of suspension based on an inability to pay the judgment because of poverty, as that term is used in s. 814.29 (1) (d)
. The court shall consider the defendant's request. If the court determines that the inability to pay the judgment is because of poverty, the court shall withdraw the suspension and grant the defendant further time to pay or withdraw the suspension and order one or more other sanctions set forth in this subsection, including community service.
This paragraph does not apply if the judgment was entered solely for a violation of an ordinance unrelated to the violator's operation of a motor vehicle unless the judgment is ordered under ch. 938
. Nonmoving traffic offenses, as defined in s. 345.28 (1) (c)
, are related to the violator's operation of a motor vehicle.
That the defendant be imprisoned until the forfeiture, assessments, surcharge, and costs are paid. If the court orders imprisonment under this subdivision, all of the following apply:
The maximum period of imprisonment shall be 90 days for any one judgment, and the defendant shall receive credit against the amount owed at the rate of at least $50 for each day of imprisonment, including imprisonment following an arrest but prior to the court making a finding under subd. 2.
The court may impose a term of imprisonment under this subdivision that is either concurrent with or consecutive to any other term of imprisonment imposed at the same time or any term of imprisonment imposed by any court.
No defendant may be imprisoned under subd. 1.
unless the court makes one of the following findings:
Either at sentencing or thereafter, that the defendant has the ability to pay the judgment within a reasonable time. If a defendant meets the criteria in s. 814.29 (1) (d)
, the defendant shall be presumed unable to pay under this subsection and the court shall either suspend or extend payment of the judgment or order community service.
The defendant has failed, without good cause, to perform the community service authorized under this subsection or s. 800.09
The defendant has failed to attend an indigency hearing offered by the court to provide the defendant with an opportunity to determine whether he or she has the ability to pay the judgment.
The defendant has failed, without good cause, to complete an assessment or treatment program related to alcohol or drugs that was ordered in lieu of a monetary forfeiture.
Except as provided in subd. 3. b.
, the defendant shall be committed to a jail or a house of correction in the county in which the cause of action arose.
The defendant may be committed to the jail in another county within or outside of the state if the other county borders the county in which the cause of action arose, and the monthly expenses charged to the municipality by the other county to imprison the defendant are at least 25 percent less than the monthly expenses charged by the county in which the cause of action arose, and the other county agrees to having the defendant committed to the jail in that county.
The defendant shall be eligible for privileges under s. 303.08
or a similar program in the other county if committed under subd. 3. b.
The municipality shall pay the expenses incurred by the county to imprison the defendant.
In this paragraph, “
employer" includes the state and the political subdivisions of the state.
Assignment to the municipal court of not more than 25 percent of the defendant's commissions, earnings, salaries, wages, pension benefits unless otherwise exempt, benefits under ch. 102
, and other money due or to be due to the defendant, including lottery prizes, for payment of the unpaid forfeiture, costs, surcharge, fees, or restitution.
Upon entry of the assignment under subd. 2.
, unless the court finds that income withholding is likely to cause the defendant irreparable harm, the court shall provide notice of the assignment by regular mail to the last-known address of the person from whom the defendant receives or will receive money. If the municipal court does not receive the money from the person notified, the court shall provide notice of the assignment to any other person from whom the defendant receives or will receive money. Notice of an assignment under subd. 2.
shall inform the intended recipient that, if a prior assignment under subd. 2.
or s. 778.30 (1)
or 973.05 (4)
has been received relating to the same defendant, the recipient is required to notify the municipal court that sent the subsequent notice of assignment that another assignment has already been received. A notice of assignment shall include a form permitting the recipient to designate on the form that another assignment has already been received.
If, after receiving the annual list under s. 565.30 (5r) (a)
, the municipal court determines that a person identified in the list may be subject to an assignment under subd. 2.
, the court shall send the notice of that order to the administrator of the lottery division of the department of revenue, including a statement of the amount owed under the judgment and the name and address of the person owing the judgment. The municipal court shall notify the administrator of the lottery division of the department of revenue when the judgment that is the basis of the assignment has been paid in full.
Notice under this paragraph may be a notice of the court, a copy of the executed assignment or a copy of that part of the court order that directs payment.
For each payment made under the assignment under subd. 2.
, the person from whom the defendant under the order receives money shall receive an amount equal to the person's necessary disbursements, not to exceed $3, which shall be deducted from the money to be paid to the defendant.
A person who receives notice of the assignment under this paragraph shall withhold the amount specified in the notice from any money that person pays to the defendant later than one week after receipt of the notice of assignment. Within 5 days after the day on which the person pays money to the defendant, the person shall send the amount withheld to the municipal court of the jurisdiction providing notice. If the person has already received a notice of an assignment under this paragraph or s. 778.30 (2)
or 973.05 (5)
, the person shall retain the later assignment and withhold the amount specified in that assignment after the last of any prior assignments is paid in full. Within 10 days of receipt of the later notice, the person shall notify the municipal court that sent the notice that the person has received a prior notice of an assignment under subd. 2.
does not apply to assignments under this section.