Chapter 973

973.195 Annotation Sub. (1g) sets forth the “applicable percentage” of the term of initial confinement a person must serve before being eligible for sentence adjustment utilizing the felony classification scheme adopted in 2001 Wis. Act 109 and does not indicate how to calculate the “applicable percentage” for a sentence under the scheme adopted in 1997 Wis. Act 283. This problem is remedied by applying the Act 109 felony classification under s. 939.50 to persons sentenced under Act 283 for the limited purpose of determining the applicable percentage of a term of initial confinement in a petition for sentence adjustment. State v. Tucker, 2005 WI 46, 279 Wis. 2d 697, 694 N.W.2d 926, 03-1276.

973.195 Annotation Two concurring/dissenting opinions joined in by the same four justices, read together, hold that “shall” in the last sentence of sub. (1r) (c) is directory, thereby giving a circuit court discretion to accept or reject an objection from a district attorney on a petition for sentence adjustment under this section. The circuit court must exercise its discretion by weighing the appropriate factors under sub. (1r) (b) 1. when the court reaches its decision on sentence adjustment. State v. Stenklyft, 2005 WI 71, 281 Wis. 2d 484, 697 N.W.2d 769, 03-1533.

973.195 Annotation Sub. (1r) clearly states that if an inmate is subject to more than one sentence imposed under this section, the sentences shall be treated individually for purposes of sentence adjustment under sub. (1r). There is no alternative interpretation; multiple sentences are to be considered separately for the purpose of sentence adjustment. State v. Polar, 2014 WI App 15, 352 Wis. 2d 452, 842 N.W.2d 531, 13-1433.

973.195 Annotation A person serving an enhanced misdemeanor prison term imposed when a defendant is convicted of a misdemeanor and is subject to penalty enhancement, such that a bifurcated sentence under s. 973.01 (1) is a possibility and the court actually chooses to impose prison time, is eligible for sentence adjustment under this section. Because the “applicable percentage” for Class I felonies is 75 percent, and because 75 percent is the lowest “applicable percentage” specified by the legislature, the most reasonable assumption is that the legislature intended that 75 percent applies to enhanced misdemeanants. State v. Anderson, 2015 WI App 92, 366 Wis. 2d 147, 873 N.W.2d 82, 14-0982.

973.195 Annotation The Pendulum Swings: No More Early Release. Brennan. Wis. Law. Sept. 2011.

973.198 973.198 Sentence adjustment; positive adjustment time.

973.198(1) (1) When an inmate who is serving a sentence imposed under s. 973.01 and who has earned positive adjustment time under s. 302.113, 2009 stats., or under s. 304.06, 2009 stats., has served the confinement portion of his or her sentence less positive adjustment time earned between October 1, 2009, and August 3, 2011, he or she may petition the sentencing court to adjust the sentence under this section, based on the number of days of positive adjustment time the inmate claims that he or she has earned.

973.198(3) (3) Within 60 days of receipt of a petition filed under sub. (1), the sentencing court shall either deny the petition or hold a hearing and issue an order relating to the inmate’s sentence adjustment and release to extended supervision.

973.198(5) (5) If the court determines that the inmate has earned positive adjustment time, the court may reduce the term of confinement in prison by the amount of time remaining in the term of confinement in prison portion of the sentence, less up to 30 days, and shall lengthen the term of extended supervision so that the total length of the bifurcated sentence originally imposed does not change.

973.198(6) (6) An inmate who submits a petition under this section may not apply for adjustment of the same sentence under s. 973.195 for a period of one year from the date of the petition.

973.198 History History: 2011 a. 38.

973.198 Annotation The supreme court reversed the court of appeals determination that this section does not violate the constitutional prohibition against ex post facto laws, but did not provide a remedy in this case or remand for relief. State ex rel. Singh v. Kemper, 2016 WI 67, 371 Wis. 2d 127, 883 N.W.2d 86, 13-1724.

973.20 973.20 Restitution.

973.20(1g) (1g) In this section:

973.20(1g)(a) (a) “Crime considered at sentencing” means any crime for which the defendant was convicted and any read-in crime.

973.20(1g)(b) (b) “Read-in crime” means any crime that is uncharged or that is dismissed as part of a plea agreement, that the defendant agrees to be considered by the court at the time of sentencing and that the court considers at the time of sentencing the defendant for the crime for which the defendant was convicted.

973.20(1r) (1r) When imposing sentence or ordering probation for any crime, other than a crime involving conduct that constitutes domestic abuse under s. 813.12 (1) (am) or 968.075 (1) (a), for which the defendant was convicted, the court, in addition to any other penalty authorized by law, shall order the defendant to make full or partial restitution under this section to any victim of a crime considered at sentencing or, if the victim is deceased, to his or her estate, unless the court finds substantial reason not to do so and states the reason on the record. When imposing sentence or ordering probation for a crime involving conduct that constitutes domestic abuse under s. 813.12 (1) (am) or 968.075 (1) (a) for which the defendant was convicted or that was considered at sentencing, the court, in addition to any other penalty authorized by law, shall order the defendant to make full or partial restitution under this section to any victim of a crime or, if the victim is deceased, to his or her estate, unless the court finds that imposing full or partial restitution will create an undue hardship on the defendant or victim and describes the undue hardship on the record. Restitution ordered under this section is a condition of probation, extended supervision, or parole served by the defendant for a crime for which the defendant was convicted. After the termination of probation, extended supervision, or parole, or if the defendant is not placed on probation, extended supervision, or parole, restitution ordered under this section is enforceable in the same manner as a judgment in a civil action by the victim named in the order to receive restitution or enforced under ch. 785.

973.20(2) (2) 

973.20(2)(am) (am) If a crime considered at sentencing resulted in damage to or loss or destruction of property, the restitution order may require that the defendant:

973.20(2)(am)1. 1. Return the property to the owner or owner’s designee; or

973.20(2)(am)2. 2. If return of the property under subd. 1 is impossible, impractical or inadequate, pay the owner or owner’s designee the reasonable repair or replacement cost or the greater of:

973.20(2)(am)2.a. a. The value of the property on the date of its damage, loss or destruction; or

973.20(2)(am)2.b. b. The value of the property on the date of sentencing, 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.

973.20(2)(bm) (bm) The restitution order may require the department of employee trust funds to withhold the amount determined under par. (am) from any payment of the defendant’s annuity or lump sum under s. 40.08 (1t) and to deliver any amount withheld from the defendant’s annuity or lump sum in accordance with sub. (11) if the crime considered at sentencing satisfies all of the following:

973.20(2)(bm)1. 1. The crime was a violation of ss. 943.20 and 946.12.

973.20(2)(bm)2. 2. The crime resulted in loss of property for the defendant’s employer that participates in the Wisconsin Retirement System.

973.20(2)(bm)3. 3. The value of the property described in subd. 2. exceeds $2,500.

973.20(3) (3) If a crime considered at sentencing resulted in bodily injury, the restitution order may require that the defendant do one or more of the following:

973.20(3)(a) (a) Pay an amount equal to the cost of necessary medical and related professional services and devices relating to physical, psychiatric and psychological care and treatment.

973.20(3)(b) (b) Pay an amount equal to the cost of necessary physical and occupational therapy and rehabilitation.

973.20(3)(c) (c) Reimburse the injured person for income lost as a result of a crime considered at sentencing.

973.20(3)(d) (d) 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 ensure that the duties are continued until the person is able to resume performance of the duties.

973.20(4) (4) If a crime considered at sentencing resulted in death, the restitution order may also require that the defendant pay an amount equal to the cost of necessary funeral and related services under s. 895.04 (5).

973.20(4m) (4m) If the defendant violated s. 940.225, 948.02, 948.025, 948.05, 948.051, 948.06, 948.07, 948.08, or 948.085, or s. 940.302 (2), if the court finds that the crime was sexually motivated, as defined in s. 980.01 (5), and sub. (3) (a) does not apply, the restitution order may require that the defendant pay an amount, not to exceed $10,000, equal to the cost of necessary professional services relating to psychiatric and psychological care and treatment. The $10,000 limit under this subsection does not apply to the amount of any restitution ordered under sub. (3) or (5) for the cost of necessary professional services relating to psychiatric and psychological care and treatment.

973.20(4o) (4o) If the defendant violated s. 940.302 (2) or 948.051, and sub. (2) or (3) does not apply, the restitution order may require that the defendant pay an amount equal to any of the following:

973.20(4o)(a) (a) The costs of necessary transportation, housing, and child care for the victim.

973.20(4o)(b) (b) The greater of the following:

973.20(4o)(b)1. 1. The gross income gained by the defendant due to the services of the victim.

973.20(4o)(b)2. 2. The value of the victim’s services as provided under the state minimum wage.

973.20(4o)(c) (c) Any expenses incurred by the victim if relocation for personal safety is determined to be necessary by the district attorney.

973.20(4o)(d) (d) The costs of relocating the victim to his or her city, state, or country of origin.

973.20(5) (5) In any case, the restitution order may require that the defendant do one or more of the following:

973.20(5)(a) (a) Pay all special damages, but not general damages, substantiated by evidence in the record, which could be recovered in a civil action against the defendant for his or her conduct in the commission of a crime considered at sentencing.

973.20(5)(b) (b) Pay an amount equal to the income lost, and reasonable out-of-pocket expenses incurred, by the person against whom a crime considered at sentencing was committed resulting from the filing of charges or cooperating in the investigation and prosecution of the crime.

973.20(5)(c) (c) Reimburse any person or agency for amounts paid as rewards for information leading to the apprehension or successful prosecution of the defendant for a crime for which the defendant was convicted or to the apprehension or prosecution of the defendant for a read-in crime.

973.20(5)(d) (d) If justice so requires, reimburse any insurer, surety or other person who has compensated a victim for a loss otherwise compensable under this section.

973.20(6) (6) Any order under sub. (5) (c) or (d) shall require that all restitution to victims under the order be paid before restitution to other persons.

973.20(7) (7) 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 transferred under sub. (11) (a). 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 department or the clerk to whom payments are made under sub. (11) (a) shall distribute any overpayments so that each defendant, as closely as possible, pays the same proportion of the ordered restitution.

973.20(8) (8) 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 facts that restitution was required or paid are not admissible as evidence in a civil action and have no legal effect on the merits of a 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 which were the basis for the restitution. The court trying the civil action shall hold a separate hearing to determine the validity and amount of any setoff asserted by the defendant.

973.20(9) (9) 

973.20(9)(a) (a) If a crime victim is paid an award under subch. I of ch. 949 for any loss arising out of a criminal act, the state is subrogated to the rights of the victim to any restitution required by the court. The rights of the state are subordinate to the claims of victims who have suffered a loss arising out of the offenses or any transaction which is part of the same continuous scheme of criminal activity.

973.20(9)(b) (b) When restitution is ordered, the court shall inquire to see if an award has been made under subch. I of ch. 949 and if the department of justice is subrogated to the cause of action under s. 949.15. If the restitution ordered is less than or equal to the award under subch. I of ch. 949, the restitution shall be credited to the appropriation account under s. 20.455 (5) (hh). If the restitution ordered is greater than the award under subch. I of ch. 949, an amount equal to the award under subch. I of ch. 949 shall be credited to the appropriation account under s. 20.455 (5) (hh) and the balance shall be paid to the victim.

973.20(9m) (9m) When restitution is ordered, the court shall inquire to see if recompense has been made under s. 969.13 (5) (a). If recompense has been made and the restitution ordered is less than or equal to the recompense, the restitution shall be applied to the payment of costs and, if any restitution remains after the payment of costs, to the payment of the judgment. If recompense has been made and the restitution ordered is greater than the recompense, the victim shall receive an amount equal to the amount of restitution less the amount of recompense and the balance shall be applied to the payment of costs and, if any restitution remains after the payment of costs, to the payment of the judgment. This subsection applies without regard to whether the person who paid the recompense is the person who is convicted of the crime.

973.20(10) (10) 

973.20(10)(a) (a) The court may require that restitution be paid immediately, within a specified period or in specified installments. If the defendant is placed on probation or sentenced to imprisonment, the end of a specified period shall not be later than the end of any period of probation, extended supervision or parole. If the defendant is sentenced to the intensive sanctions program, the end of a specified period shall not be later than the end of the sentence under s. 973.032 (3) (a).

973.20(10)(b) (b) The department or the clerk of court may certify an amount owed under par. (a) to the department of revenue if any of the following apply:

973.20(10)(b)1. 1. The court required that restitution be paid immediately and more than 30 days have passed since the order was entered.

973.20(10)(b)2. 2. The court required that restitution be paid within a specified period and more than 30 days have passed since the expiration of that period.

973.20(10)(b)3. 3. The court required that restitution be paid in specified installments and the defendant is delinquent in making any of those payments.

973.20(11) (11) 

973.20(11)(a) (a) Except as otherwise provided in this paragraph, the restitution order shall require the defendant to deliver the amount of money or property due as restitution to the department for transfer to the victim or other person to be compensated by a restitution order under this section. If the defendant is not placed on probation or sentenced to prison, the court may order that restitution be paid to the clerk of court for transfer to the appropriate person. The court shall impose on the defendant a restitution surcharge under ch. 814 equal to 5 percent of the total amount of any restitution, costs, attorney fees, court fees, fines, and surcharges ordered under s. 973.05 (1) and imposed under ch. 814, which shall be paid to the department or the clerk of court for administrative expenses under this section.

973.20(11)(b) (b) The department shall establish a separate account for each person in its custody or under its supervision ordered to make restitution for the collection and disbursement of funds. A portion of each payment constitutes the surcharge for administrative expenses under par. (a).

973.20(11)(c) (c) If a defendant who is in a state prison or who is sentenced to a state prison is ordered to pay restitution, the court order shall require the defendant to authorize the department to collect, from the defendant’s wages and from other moneys held in the defendant’s prisoner’s account, an amount or a percentage the department determines is reasonable for payment to victims.

973.20(11)(d) (d) Each clerk of court who collects restitution under this section shall notify the department when a defendant has satisfied an order for restitution.

973.20(11)(e) (e) The department and each clerk of court that collects restitution under this section shall annually submit a report to the legislature under s. 13.172 (2) that specifies, for each fiscal year, the total amounts of restitution ordered for the department and each clerk of court to collect, the administrative fee the department and each clerk of court collects under par. (a), and the amounts of restitution collected by the department and by the clerk of court and dispersed to victims.

973.20(11)(f) (f) If an inmate in a state prison or a person sentenced to a state prison has not paid, at the time of his or her death, restitution ordered under this section, the department shall assess, collect, and disburse the amount owed from the inmate’s wages or other moneys.

973.20(12) (12) 

973.20(12)(a) (a) If the court orders restitution in addition to the payment of fines, costs, fees, and surcharges under ss. 973.05 and 973.06 and ch. 814, it shall set the amount of fines, costs, fees, and surcharges in conjunction with the amount of restitution and issue a single order, signed by the judge, covering all of the payments and any amounts due under s. 304.074. If the costs for legal representation by a private attorney appointed under s. 977.08 or the fees due under s. 304.074 are not established at the time of issuance of the order, the court may revise the order to include those costs at a later time.

973.20(12)(b) (b) Except as provided in par. (c), payments shall be applied first to satisfy the ordered restitution in full, then to pay any fines or surcharges under s. 973.05, then to pay costs, fees, and surcharges under ch. 814 other than attorney fees and finally to reimburse county or state costs of legal representation.

973.20(12)(c) (c) If a defendant is subject to more than one order under this section and the financial obligations under any order total $50 or less, the department or the clerk of court, whichever is applicable under sub. (11) (a), may pay these obligations first.

973.20(13) (13) 

973.20(13)(a) (a) The court, in determining whether to order restitution and the amount thereof, shall consider all of the following:

973.20(13)(a)1. 1. The amount of loss suffered by any victim as a result of a crime considered at sentencing.

973.20(13)(a)2. 2. The financial resources of the defendant.

973.20(13)(a)3. 3. The present and future earning ability of the defendant.

973.20(13)(a)4. 4. The needs and earning ability of the defendant’s dependents.

973.20(13)(a)5. 5. Any other factors which the court deems appropriate.

973.20(13)(b) (b) The district attorney shall attempt to obtain from the victim prior to sentencing information pertaining to the factor specified in par. (a) 1. Law enforcement agencies, the department of corrections and any agency providing services under ch. 950 shall extend full cooperation and assistance to the district attorney in discharging this responsibility. The department of justice shall provide technical assistance to district attorneys in this regard and develop model forms and procedures for collecting and documenting this information.

973.20(13)(c) (c) The court, before imposing sentence or ordering probation, shall inquire of the district attorney regarding the amount of restitution, if any, that the victim claims. The court shall give the defendant the opportunity to stipulate to the restitution claimed by the victim and to present evidence and arguments on the factors specified in par. (a). If the defendant stipulates to the restitution claimed by the victim or if any restitution dispute can be fairly heard at the sentencing proceeding, the court shall determine the amount of restitution before imposing sentence or ordering probation. In other cases, the court may do any of the following:

973.20(13)(c)1. 1. Order restitution of amounts not in dispute as part of the sentence or probation order imposed and direct the appropriate agency to file a proposed restitution order with the court within 90 days thereafter, and mail or deliver copies of the proposed order to the victim, district attorney, defendant and defense counsel.

973.20(13)(c)2. 2. Adjourn the sentencing proceeding for up to 60 days pending resolution of the amount of restitution by the court, referee or arbitrator.

973.20(13)(c)3. 3. With the consent of the defendant, refer the disputed restitution issues to an arbitrator acceptable to all parties, whose determination of the amount of restitution shall be filed with the court within 60 days after the date of referral and incorporated into the court’s sentence or probation order.

973.20(13)(c)4. 4. Refer the disputed restitution issues to a circuit court commissioner or other appropriate referee, who shall conduct a hearing on the matter and submit the record thereof, together with proposed findings of fact and conclusions of law, to the court within 60 days of the date of referral. Within 30 days after the referee’s report is filed, the court shall determine the amount of restitution on the basis of the record submitted by the referee and incorporate it into the sentence or probation order imposed. The judge may direct that hearings under this subdivision be recorded either by audio recorder or by a court reporter. A transcript is not required unless ordered by the judge.

973.20(14) (14) At any hearing under sub. (13), all of the following apply:

973.20(14)(a) (a) The burden of demonstrating by the preponderance of the evidence the amount of loss sustained by a victim as a result of a crime considered at sentencing is on the victim. The district attorney is not required to represent any victim unless the hearing is held at or prior to the sentencing proceeding or the court so orders.

973.20(14)(b) (b) The burden of demonstrating, by the preponderance of the evidence, the financial resources of the defendant, the present and future earning ability of the defendant and the needs and earning ability of the defendant’s dependents is on the defendant. The defendant may assert any defense that he or she could raise in a civil action for the loss sought to be compensated. The office of the state public defender is not required to represent any indigent defendant unless the hearing is held at or prior to the sentencing proceeding, the defendant is incarcerated when the hearing is held or the court so orders.

973.20(14)(c) (c) The burden of demonstrating, by the preponderance of the evidence, such other matters as the court deems appropriate is on the party designated by the court, as justice requires.

973.20(14)(d) (d) All parties interested in the matter shall have an opportunity to be heard, personally or through counsel, to present evidence and to cross-examine witnesses called by other parties. The court, arbitrator or referee shall conduct the proceeding so as to do substantial justice between the parties according to the rules of substantive law and may waive the rules of practice, procedure, pleading or evidence, except provisions relating to privileged communications and personal transactions or communication with a decedent or mentally ill person or to admissibility under s. 901.05. Discovery is not available except for good cause shown. If the defendant is incarcerated, he or she may participate by telephone under s. 807.13 unless the court issues a writ or subpoena compelling the defendant to appear in person.

973.20(15) (15) If misappropriation, from a cemetery, of an object that indicates that a deceased was a veteran, as described in s. 45.001, is a crime considered at sentencing, the restitution order shall require that the defendant reimburse an individual, organization, or governmental entity for the cost of replacing the object.