Chapter 973

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.

973.155(3) (3) The credit provided in sub. (1) or (1m) shall be computed as if the convicted offender had served such time in the institution to which he or she has been sentenced.

973.155(4) (4) The credit provided in sub. (1) shall include earned good time for those inmates subject to s. 302.43, 303.07 (3) or 303.19 (3) serving sentences of one year or less and confined in a county jail, house of correction or county reforestation camp.

973.155(5) (5) If this section has not been applied at sentencing to any person who is in custody or to any person who is on probation, extended supervision or parole, the person may petition the department to be given credit under this section. Upon proper verification of the facts alleged in the petition, this section shall be applied retroactively to the person. If the department is unable to determine whether credit should be given, or otherwise refuses to award retroactive credit, the person may petition the sentencing court for relief. This subsection applies to any person, regardless of the date he or she was sentenced.

973.155(6) (6) A defendant aggrieved by a determination by a court under this section may appeal in accordance with s. 809.30.

973.155 History History: 1977 c. 353; 1979 c. 154; 1983 a. 377, 528; 1987 a. 403 s. 256; 1989 a. 31, 107; 1997 a. 283; 2001 a. 109; 2005 a. 25; 2013 a. 20.

973.155 Cross-reference Cross-reference: See also s. DOC 302.28, Wis. adm. code.

973.155 Annotation The trial court did not abuse its discretion during resentencing when it refused to give the defendant credit for time served on an unrelated conviction that was voided. State v. Allison, 99 Wis. 2d 391, 299 N.W.2d 286 (Ct. App. 1980).

973.155 Annotation This section grants credit for each day in custody regardless of the basis for confinement as long as it is connected to the offense for which sentence is imposed. State v. Gilbert, 115 Wis. 2d 371, 340 N.W.2d 511 (1983).

973.155 Annotation When the intended sentence was valid, but the judge did not follow the procedures under this section, the appropriate remedy was to modify the sentence to conform it to the requirements of this section. State v. Walker, 117 Wis. 2d 579, 345 N.W.2d 413 (1984).

973.155 Annotation “Custody” must result from the occurrence of a legal event, process, or authority that occasions, or is related to, confinement on a charge for which the accused is ultimately sentenced. State v. Demars, 119 Wis. 2d 19, 349 N.W.2d 708 (Ct. App. 1984).

973.155 Annotation When an offender committed robbery and 24 hours later fled from an officer, the offender was not entitled to credit toward the robbery sentence for time served under the sentence for fleeing an officer. State v. Gavigan, 122 Wis. 2d 389, 362 N.W.2d 162 (Ct. App. 1984).

973.155 Annotation When a probationer is arrested for a second crime and consequently begins serving time for the first crime, no credit toward the second sentence is required for time served under the first sentence. State v. Beets, 124 Wis. 2d 372, 369 N.W.2d 382 (1985).

973.155 Annotation No credit was due for time spent in a drug treatment facility as a condition of probation when the defendant was not in actual “custody” at the facility within the meaning of this section and s. 946.42. State v. Cobb, 135 Wis. 2d 181, 400 N.W.2d 9 (Ct. App. 1986).

973.155 Annotation Credit under this section is given on a day-to-day basis, which is not to be duplicatively credited to more than one consecutive sentence. State v. Boettcher, 144 Wis. 2d 86, 423 N.W.2d 533 (1988).

973.155 Annotation A defendant is not entitled to credit against a sentence for time spent under home detention. State v. Pettis, 149 Wis. 2d 207, 441 N.W.2d 247 (Ct. App. 1989). See also State v. Swadley, 190 Wis. 2d 139, 526 N.W.2d 778 (Ct. App. 1994).

973.155 Annotation Presentence credit must be applied to each of the concurrent terms to which the defendant is sentenced. State v. Ward, 153 Wis. 2d 743, 452 N.W.2d 158 (Ct. App. 1989).

973.155 Annotation Out-of-state presentence confinement while the defendant is on parole from Wisconsin may not be credited against subsequent reconfinement in Wisconsin for a parole violation. State v. Rohl, 160 Wis. 2d 325, 466 N.W.2d 208 (Ct. App. 1991).

973.155 Annotation When a waiver of juvenile jurisdiction is granted, secure juvenile detention time is eligible for credit consideration under this section as if it were jail time, retroactive to the date of the filing of the juvenile petition. State v. Baker, 179 Wis. 2d 655, 508 N.W.2d 40 (Ct. App. 1993).

973.155 Annotation The definition of “custody” in s. 946.42 (1) (a) is used to determine whether a person is in custody for sentence credit purposes. State v. Sevelin, 204 Wis. 2d 127, 554 N.W.2d 521 (Ct. App. 1996), 96-0729.

973.155 Annotation A person confined on a probation revocation or change in intensive sanctions due to an arrest for a subsequent crime is not entitled to credit under sub. (1) against the sentence for the subsequent crime although the confinement is triggered by the subsequent crime. State v. Abbott, 207 Wis. 2d 624, 558 N.W.2d 927 (Ct. App. 1996), 96-2051.

973.155 Annotation Sub. (1) (a) provides sentence credit only for custody connected to the charges from which the custody resulted. Time served as the result of a bail jumping charge was not credited against a sentence for sexual assault, although the bail condition violated was in the sexual assault case. State v. Beiersdorf, 208 Wis. 2d 492, 561 N.W.2d 749 (Ct. App. 1997), 95-1234.

973.155 Annotation When a defendant is unable to satisfy cash-bail requirements on two or more unrelated charges, the defendant is entitled to sentence credit on both charges. However, if the defendant is committed following a finding of not guilty by reason of mental defect on one charge, there will be no sentence credit from the commitment against a sentence upon conviction on another of the charges as the confinement after the commitment is solely the result of the commitment. State v. Harr, 211 Wis. 2d 584, 568 N.W.2d 307 (Ct. App. 1997), 96-2815.

973.155 Annotation An 18-year-old on juvenile aftercare parole who was returned to juvenile detention because the parole was revoked pending sentencing after pleading guilty to an adult crime was eligible for sentence credit for the time spent in juvenile detention prior to sentencing. State v. Thompson, 225 Wis. 2d 578, 593 N.W.2d 875 (Ct. App. 1999), 97-3245.

973.155 Annotation When a sentence has been withheld and probation imposed, sub. (2) gives the court exclusive authority to determine sentence credit in imposing a postprobation sentence. A person subject to electronic monitoring, but not locked in the home at night, was not in custody and not entitled to sentence credit. State v. Olson, 226 Wis. 2d 457, 595 N.W.2d 460 (Ct. App. 1999), 98-1450.

973.155 Annotation “Course of conduct” in sub. (1) (a) means the specific act for which the defendant is sentenced. As such, a defendant was not entitled to sentence credit on a later imposed sentence for time already served on sentences arising from the same criminal episode, but different criminal acts. State v. Tuescher, 226 Wis. 2d 465, 595 N.W.2d 443 (Ct. App. 1999), 98-2564.

973.155 Annotation Pretrial confinement on a dismissed charge that is read in at sentencing relates to an offense for which the offender is ultimately sentenced, entitling the offender to sentence credit. State v. Floyd, 2000 WI 14, 232 Wis. 2d 767, 606 N.W.2d 155, 98-2062. See also State v. Fermanich, 2023 WI 48, 407 Wis. 2d 693, 991 N.W.2d 340, 21-0462.

973.155 Annotation For sentence credit purposes, an offender’s status constitutes custody whenever the offender is subject to an escape charge for leaving that status. State v. Magnuson, 2000 WI 19, 233 Wis. 2d 40, 606 N.W.2d 536, 98-1105. See also State v. Friedlander, 2019 WI 22, 385 Wis. 2d 633, 923 N.W.2d 849, 17-1337.

973.155 Annotation Boettcher, 144 Wis. 2d 86 (1988), bars a claim for dual credit when the defendant has already received the same credit against a prior sentence that the defendant has already served. State v. Jackson, 2000 WI App 41, 233 Wis. 2d 231, 607 N.W.2d 338, 99-1161.

973.155 Annotation In a multiple count conviction, when one sentence is imposed and another stayed, applicable sentence credit must be applied to the first imposed sentence. State v. Wolfe, 2001 WI App 66, 242 Wis. 2d 426, 625 N.W.2d 655, 00-1466.

973.155 Annotation Sentence credit is not to be granted for time spent on electronic monitoring. State ex rel. Simpson v. Schwarz, 2002 WI App 7, 250 Wis. 2d 214, 640 N.W.2d 527, 01-0008.

973.155 Annotation Detention at the Wisconsin Resource Center while awaiting evaluation and trial on a petition for commitment as a sexually violent person under ch. 980 satisfies neither the “in custody” nor “in connection with” requirements of this section. The detention does not qualify for sentence credit under this section. State ex rel. Thorson v. Schwarz, 2004 WI 96, 274 Wis. 2d 1, 681 N.W.2d 914, 02-3380.

973.155 Annotation An offender who has had extended supervision revoked is entitled to sentence credit on any new charges until the trial court resentences the offender 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 arrest until the day of sentencing on both charges because while the defendant’s extended supervision was revoked, resentencing had not yet occurred. State v. Presley, 2006 WI App 82, 292 Wis. 2d 734, 715 N.W.2d 713, 05-0359.

973.155 Annotation When a defendant has served jail time as a condition of probation and the defendant’s probation is later revoked and the defendant commences serving an imposed and stayed sentence, the defendant is entitled to sentence credit for days spent in custody while in conditional jail time status, even if that custody is concurrent with service of an unrelated prison sentence. State v. Yanick, 2007 WI App 30, 299 Wis. 2d 456, 728 N.W.2d 365, 06-0849.

973.155 Annotation Sentence credit must be awarded under sub. (1) (b) for time in custody on an extended supervision hold if the hold is at least in part due to the conduct resulting in the new conviction. State v. Hintz, 2007 WI App 113, 300 Wis. 2d 583, 731 N.W.2d 646, 06-0217.

973.155 Annotation The underlying purpose of the sentence credit statute is to afford fairness by ensuring that a person not serve more time than that for which the person is sentenced. A narrow interpretation of the phrase “in connection with” furthers this purpose. If the defendant would have been in custody even if a charged offense had never occurred, the defendant was not treated unfairly by not receiving sentence credit for that time. State v. Johnson, 2007 WI 107, 304 Wis. 2d 318, 735 N.W.2d 505, 05-1492.

973.155 Annotation Sub. (1) (a) requires an award of credit against each sentence imposed for all days spent in custody in connection with the course of conduct underlying the sentence. The “in connection with the course of conduct” requirement applies individually to each concurrent sentence imposed at the same time. Credit due against any individual sentence is not awarded against a concurrent sentence that is not imposed in connection with the course of conduct giving rise to that individual sentence. State v. Johnson, 2009 WI 57, 318 Wis. 2d 21, 767 N.W.2d 207, 07-1114. See also State v. Carter, 2010 WI 77, 327 Wis. 2d 1, 785 N.W.2d 516, 06-1811.

973.155 Annotation When an offender is on a parole hold in a different sovereignty that has not acted to revoke parole, the circuit court should grant sentence credit in Wisconsin for the time the offender spends in presentence confinement in Wisconsin. Until the other sovereignty has acted on whether to grant credit, the Wisconsin sentence is the only outstanding sentence against which the court can grant credit. Therefore, the question of “double credit” is not ripe. The Wisconsin court, as the only court the issue of credit is before, should grant credit. State v. Brown, 2010 WI App 43, 324 Wis. 2d 236, 781 N.W.2d 244, 09-0896.

973.155 Annotation A court, in determining a sentence, may consider the amount of sentence credit to which the defendant is entitled so long as the court does not do so with the purpose of enlarging the sentence to deprive the defendant of the defendant’s right to receive sentence credit. State v. Armstrong, 2014 WI App 59, 354 Wis. 2d 111, 847 N.W.2d 860, 13-1995.

973.155 Annotation A convicted offender is entitled to credit toward the service of the offender’s sentence for all days spent in custody in connection with the course of conduct for which sentence is imposed. The defendant in this case was entitled to credit for the time during which the defendant was unable to make cash bail on a burglary charge while also confined pursuant to a civil commitment order for contempt of court. Even though the defendant was in custody pursuant to the civil commitment order during the relevant time period, the custody was also in connection with the course of conduct for which the burglary sentence was imposed. State v. Trepanier, 2014 WI App 105, 357 Wis. 2d 662, 855 N.W.2d 465, 14-0178.

973.155 Annotation While a circuit court may seek assistance from its court clerk in accessing records that may be relevant to its determination, the award of sentence credit is the court’s duty and the court must reach its own conclusion on the amount of sentence credit to be awarded and explain its findings and reasoning on the record. State v. Kitt, 2015 WI App 9, 359 Wis. 2d 592, 859 N.W.2d 164, 14-0500.

973.155 Annotation Sub. (4) applies to inmates serving sentences of one year or less and confined in a county jail. Sub. (4) was not applicable to the defendant who had a sentence of more than one year, and therefore, the defendant was not entitled to the good time earned during the defendant’s failed probationary period to be applied as sentence credit to the defendant’s confinement time in prison. State ex rel. Baade v. Hayes, 2015 WI App 71, 365 Wis. 2d 174, 870 N.W.2d 478, 14-2655.

973.155 Annotation Floyd, 2000 WI 14, remains good law. Floyd limits the reach of sub. (1) to charges that are dismissed and read in at sentencing. That the trial court discussed a sexual assault, for which the defendant was ultimately acquitted, when sentencing the defendant for an intimidation charge, did not require that the defendant be awarded credit for the time spent in custody related to the sexual assault charge. State v. Piggue, 2016 WI App 13, 366 Wis. 2d 605, 875 N.W.2d 663, 15-0152.

973.155 Annotation A person is entitled to a day of sentence credit for each calendar day during which the person spends at least part of the day in custody. State v. Johnson, 2018 WI App 2, 379 Wis. 2d 684, 906 N.W.2d 704, 16-0924.

973.155 Annotation In order to receive sentence credit under this section, a defendant must have been in custody. Under s. 946.42 (1) (a), custody can either be actual or constructive. Crucially, however, the escape statute is clear that custody does not include constructive custody of a defendant on probation or extended supervision. Whether a defendant is at liberty through no fault of the defendant is irrelevant to a sentence credit determination. State v. Friedlander, 2019 WI 22, 385 Wis. 2d 633, 923 N.W.2d 849, 17-1337.

973.155 Annotation A defendant who spends time in custody on probation holds is entitled to sentence credit for those time periods against the sentences for all counts charged in connection with the course of conduct for which the sentences were imposed. State v. Zahurones, 2019 WI App 57, 389 Wis. 2d 69, 934 N.W.2d 905, 18-1845.

973.155 Annotation An award of sentence credit under this section is mandatory. Nothing in this section authorizes the parties to agree to an amount of sentence credit that differs from the amount to which the defendant is entitled under this section. An agreement between the parties as to the proper amount of sentence credit—even if adopted by the circuit court during the sentencing hearing—does not prevent a defendant from later arguing in a post-conviction motion that the amount of sentence credit awarded by the court was erroneous. State v. Kontny, 2020 WI App 30, 392 Wis. 2d 311, 943 N.W.2d 923, 19-1257.

973.155 Annotation A defendant is not entitled to sentence credit for the date on which the defendant is sentenced. The statutory language “awaiting imposition of sentence” does not include the date of sentencing because that is the date a defendant’s sentence begins. As such, the date of sentencing is counted toward the service of the defendant’s sentence. State v. Kontny, 2020 WI App 30, 392 Wis. 2d 311, 943 N.W.2d 923, 19-1257.

973.155 Annotation Sub. (1) (b) does not specifically exclude federal holds from sentence credit; it simply explains that sentence credit is available for state probation, extended supervision, and parole holds. Sub. (1) (a) makes clear that the enumeration of “actual days spent in custody” under sub. (1) (a) is not limited to those examples in sub. (1) (b). As the court explained in Gilbert, 115 Wis. 2d 371 (1983), the clear intent of this section is to grant credit for each day in custody regardless of the basis for the confinement so long as it is connected to the offense for which the sentence is imposed. State v. Thomas, 2021 WI App 59, 399 Wis. 2d 165, 963 N.W.2d 927, 20-0976.

973.155 Annotation This section sets a basic rule for sentence credit determinations: a defendant will receive credit for time spent incarcerated when that time has a factual connection to the offense for which the defendant is convicted. The supreme court has repeatedly held that the test under sub. (1) (a) is a factual one. Mere procedural connection is insufficient to warrant sentence credit. State v. Lira, 2021 WI 81, 399 Wis. 2d 419, 966 N.W.2d 605, 19-0691.

973.155 Annotation Section 973.10 (2) (b) provides that if a probationer has already been sentenced and the probationer’s probation is later revoked, the Department of Corrections shall order the probationer to prison, and the term of the sentence shall begin on the date the probationer enters the prison. Under this unambiguous language, the defendant’s imposed-and-stayed sentence did not begin to run until the date the defendant entered prison. It was undisputed that, after the defendant’s probation in the drug case was revoked, the defendant remained in jail awaiting resolution of charges in an armed robbery case, and the defendant did not enter prison until after the defendant was sentenced on those charges. As such, the defendant did not begin serving the imposed-and-stayed sentence in the drug case until after the defendant was sentenced on the armed robbery charges. Thus, the revocation of the defendant’s probation in the drug case did not sever the connection between the defendant’s presentence custody and the course of conduct for which the defendant’s sentences on the armed robbery charges were imposed. State v. Slater, 2021 WI App 88, 400 Wis. 2d 93, 968 N.W.2d 740, 20-1936.

973.155 Annotation Dual credit is permissible only when the two sentences are imposed concurrently. State v. Slater, 2021 WI App 88, 400 Wis. 2d 93, 968 N.W.2d 740, 20-1936.

973.155 Annotation The supreme court has long held that, in the absence of a statute to the contrary, or judicial declaration in the sentence imposed, when there is a present sentence for another offense of one then actually or constructively serving a former sentence, the two sentences run concurrently. In this case, in the absence of any evidence that the circuit court intended to impose consecutive sentences, the reviewing court presumed that the sentences were concurrent. State v. Slater, 2021 WI App 88, 400 Wis. 2d 93, 968 N.W.2d 740, 20-1936.

973.155 Annotation Jail credit may not be granted if it is not provided for by statute. 71 Atty. Gen. 102.

973.155 Annotation Sentence Credit: More Than Just Math. White. Wis. Law. Oct. 1991.

973.16 973.16 Time out. If an order or judgment releasing a prisoner on habeas corpus is reversed, the time during which the prisoner was at liberty thereunder shall not be counted as part of the prisoner’s term.

973.16 History History: 1993 a. 486.

973.17 973.17 Judgment against a corporation or limited liability company.

973.17(1) (1) If a corporation or limited liability company fails to appear within the time required by the summons, the default of such corporation or limited liability company may be recorded and the charge against it taken as true, and judgment shall be rendered accordingly.

973.17(2) (2) Upon default of the defendant corporation or limited liability company or upon conviction, judgment for the amount of the fine shall be entered.

973.17(3) (3) A judgment against a corporation or limited liability company shall be collected in the same manner as in civil actions.

973.17 History History: 1993 a. 112.

973.176 973.176 Notice of restrictions.

973.176(1) (1) Firearm possession. Whenever a court imposes a sentence or places a defendant on probation regarding a felony conviction, the court shall inform the defendant of the requirements and penalties applicable to him or her under s. 941.29 (1m) or (4m).

973.176(2) (2) Voting. Whenever a court imposes a sentence or places a defendant on probation for a conviction that disqualifies the defendant from voting under s. 6.03 (1) (b), the court shall inform the defendant in writing that he or she may not vote in any election until his or her civil rights are restored. The court shall use the form designed by the department of corrections under s. 301.03 (3a) to inform the defendant, and the defendant and a witness shall sign the form.

973.176(3) (3) Child sex offender working with children. Whenever a court imposes a sentence or places a defendant on probation regarding a conviction under s. 940.22 (2) or 940.225 (2) (c) or (cm), if the victim is under 18 years of age at the time of the offense, a conviction under s. 940.302 (2) if s. 940.302 (2) (a) 1. b. applies, or a conviction under s. 948.02 (1) or (2), 948.025 (1), 948.05 (1) or (1m), 948.051, 948.06, 948.07 (1), (2), (3), or (4), 948.075, or 948.085, the court shall inform the defendant of the requirements and penalties under s. 948.13.

973.176 History History: 2003 a. 121 ss. 2, 3, 5; 2005 a. 277, 451; 2007 a. 116; 2015 a. 109.

973.176 Annotation Failure to give the warning under this section does not prevent a conviction under s. 941.29. State v. Phillips, 172 Wis. 2d 391, 493 N.W.2d 238 (Ct. App. 1992).

973.18 973.18 Notice of rights to appeal and representation.

973.18(1) (1) In this section, “postconviction relief” and “sentencing” have the meanings ascribed in s. 809.30 (1).

973.18(2) (2) The trial judge shall personally inform the defendant at the time of sentencing of the right to seek postconviction relief and, if indigent, the right to the assistance of the state public defender.

973.18(3) (3) Before adjourning the sentencing proceeding, the judge shall direct the defendant and defendant’s trial counsel to sign a form to be entered in the record, indicating that the lawyer has counseled the defendant regarding the decision to seek postconviction relief, and that the defendant understands that a notice of intent to pursue postconviction relief must be filed in the trial court within 20 days after sentencing for that right to be preserved.

973.18(4) (4) The judge shall direct the defendant’s counsel to confer with the defendant before signing the form, during the proceeding or as soon thereafter as practicable, and may make appropriate orders to allow the defendant to confer with counsel before being transferred to the state prison. The defendant shall be given a copy of the form.

973.18(5) (5) If the defendant desires to pursue postconviction relief, the defendant’s trial counsel shall file the notice required by s. 809.30 (2) (b).

973.18 History History: Sup. Ct. Order, 123 Wis. 2d xi (1985).

973.18 Note Judicial Council Note, 1984: Sub. (2) is similar to prior s. 809.30 (1) (b). Subs. (3) and (4) codify State v. Argiz, 101 Wis. 2d 546, 305 N.W.2d 124 (1981). Sub. (5) codifies trial counsel’s continuing duty to provide representation until appellate counsel is retained or appointed. Whitmore v. State, 56 Wis. 2d 706, 203 NW 2d 56 (1973). [Re order effective July 1, 1985]

973.19 973.19 Motion to modify sentence.

973.19(1) (1) 

973.19(1)(a) (a) A person sentenced to imprisonment or the intensive sanctions program or ordered to pay a fine who has not requested the preparation of transcripts under s. 809.30 (2) may, within 90 days after the sentence or order is entered, move the court to modify the sentence or the amount of the fine.

973.19(1)(b) (b) A person who has requested transcripts under s. 809.30 (2) may move for modification of a sentence or fine under s. 809.30 (2) (h).

973.19(2) (2) Within 90 days after a motion under sub. (1) (a) is filed, the court shall enter an order either determining the motion or extending the time for doing so by not more than 90 days for cause.

973.19(3) (3) If an order determining a motion under sub. (1) (a) is not entered timely under sub. (2), the motion shall be considered denied and the clerk of the court shall immediately enter an order denying the motion.

973.19(4) (4) An appeal from an order determining a motion under sub. (1) (a) is governed by the procedure for civil appeals.

973.19(5) (5) By filing a motion under sub. (1) (a) the defendant waives his or her right to file an appeal or postconviction motion under s. 809.30 (2).

973.19 History History: Sup. Ct. Order, 123 Wis. 2d xiv (1985); 1991 a. 39.