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939.641(2) (2) In case of a felony, the maximum fine prescribed by law for the crime may be increased by not more than $10,000 and the maximum term of imprisonment prescribed by law for the crime may be increased by not more than 5 years.
939.641 History History: 1977 c. 173; 1985 a. 104 s. 2.
939.645 939.645 Penalty; crimes committed against certain people or property.
939.645(1)(1) If a person does all of the following, the penalties for the underlying crime are increased as provided in sub. (2):
939.645(1)(a) (a) Commits a crime under chs. 939 to 948.
939.645(1)(b) (b) Intentionally selects the person against whom the crime under par. (a) is committed or selects the property that is damaged or otherwise affected by the crime under par. (a) in whole or in part because of the actor's belief or perception regarding the race, religion, color, disability, sexual orientation, national origin or ancestry of that person or the owner or occupant of that property, whether or not the actor's belief or perception was correct.
939.645(2) (2)
939.645(2)(a)(a) If the crime committed under sub. (1) is ordinarily a misdemeanor other than a Class A misdemeanor, the revised maximum fine is $10,000 and the revised maximum period of imprisonment is one year in the county jail.
939.645(2)(b) (b) If the crime committed under sub. (1) is ordinarily a Class A misdemeanor, the penalty increase under this section changes the status of the crime to a felony and the revised maximum fine is $10,000 and the revised maximum period of imprisonment is 2 years.
939.645(2)(c) (c) If the crime committed under sub. (1) is a felony, the maximum fine prescribed by law for the crime may be increased by not more than $5,000 and the maximum period of imprisonment prescribed by law for the crime may be increased by not more than 5 years.
939.645(3) (3) This section provides for the enhancement of the penalties applicable for the underlying crime. The court shall direct that the trier of fact find a special verdict as to all of the issues specified in sub. (1).
939.645(4) (4) This section does not apply to any crime if proof of race, religion, color, disability, sexual orientation, national origin or ancestry or proof of any person's perception or belief regarding another's race, religion, color, disability, sexual orientation, national origin or ancestry is required for a conviction for that crime.
939.645 History History: 1987 a. 348; 1991 a. 291.
939.645 Annotation The "hate crimes" law, s. 939.645, does not unconstitutionally infringe upon free speech. State v. Mitchell, 508 U.S. 476, 124 LEd 2d 436 (1993); 178 Wis. 2d 597, 504 N.W.2d 610 (1993).
939.645 Annotation Hate Crimes: New Limits on the Scope of the 1st Amendment. Resler. 77 MLR 415 (1993).
939.645 Annotation Talking about Hate Speech: A Rhetorical Analysis of American and Canadian Regulation of Hate Speech. Moran. 1994 WLR 1425.
939.645 Annotation Hate Crimes. Kassel. Wis. Law. Oct. 1992.
939.646 939.646 Penalty; crimes committed using information obtained from the sex offender registry. If a person commits a crime using information that was disclosed to him or her under s. 301.46, the penalties may be increased as follows:
939.646(1) (1) In case of a misdemeanor, the maximum fine prescribed by law for the crime may be increased by not more than $1,000 and the maximum term of imprisonment prescribed by law for the crime may be increased by not more than 6 months. This subsection does not change the status of the crime from a misdemeanor to a felony.
939.646(2) (2) In case of a felony, the maximum term of imprisonment prescribed by law for the crime may be increased by not more than 5 years.
939.646 History History: 1995 a. 440.
939.647 939.647 Increased penalty; violent felony committed against elder person.
939.647(1) (1) In this section:
939.647(1)(a) (a) "Elder person" means any individual who is 62 years of age or older.
939.647(1)(b) (b) "Violent felony" means any felony under s. 940.19 (2), (3), (4), (5) or (6), 940.225 (1), (2) or (3), 940.23 or 943.32.
939.647(2) (2) If a person commits a violent felony and the victim of the violent felony is an elder person, the maximum period of imprisonment is increased by 5 years.
939.647(3) (3)Subsection (2) applies even if the person mistakenly believed that the victim had not attained the age of 62 years.
939.647(4) (4) This section provides for the enhancement of the penalties applicable for the underlying crime. The court shall direct that the trier of fact find a special verdict as to all of the issues specified in sub. (2).
939.647 History History: 1997 a. 266.
939.648 939.648 Penalty; terrorism.
939.648(1)(1) In this section, "governmental unit" means the United States; the state; any county, city, village or town; or any political subdivision, department, division, board or agency of the United States, the state or any county, city, village or town.
939.648(2) (2) If a person does all of the following, the penalties for the underlying felony are increased as provided in sub. (3):
939.648(2)(a) (a) Commits a felony under chs. 939 to 951.
939.648(2)(b) (b) Commits the felony under any of the following circumstances:
939.648(2)(b)1. 1. The person causes bodily harm, great bodily harm or death to another.
939.648(2)(b)2. 2. The person causes damage to the property of another and the total property damaged is reduced in value by $25,000 or more. For the purposes of this subdivision, property is reduced in value by the amount that it would cost either to repair or replace it, whichever is less.
939.648(2)(b)3. 3. The person uses force or violence or the threat of force or violence.
939.648(2)(c) (c) Commits the felony with the intent to influence the policy of a governmental unit or to punish a governmental unit for a prior policy decision.
939.648(3) (3) The maximum fine prescribed by law for the felony may be increased by not more than $50,000 and the maximum period of imprisonment prescribed by law for the felony may be increased by not more than 10 years.
939.648(4) (4) This section provides for the enhancement of the penalties applicable for the underlying felony. The court shall direct that the trier of fact find a special verdict as to all of the issues specified in sub. (2).
939.648(5) (5)
939.648(5)(a)(a) In this subsection, "labor dispute" includes any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.
939.648(5)(b) (b) This section does not apply to conduct arising out of or in connection with a labor dispute.
939.648 History History: 1993 a. 98.
RIGHTS OF THE PROSECUTION.
939.65 939.65 Prosecution under more than one section permitted. Except as provided in s. 948.025 (3), if an act forms the basis for a crime punishable under more than one statutory provision, prosecution may proceed under any or all such provisions.
939.65 History History: 1993 a. 227.
939.65 Annotation Due process does not require that a person know with certainty which crime, among several, the person is committing, at least until the prosecution exercises its charging discretion. Harris v. State, 78 Wis. 2d 357, 254 N.W.2d 291.
939.66 939.66 Conviction of included crime permitted. Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:
939.66(1) (1) A crime which does not require proof of any fact in addition to those which must be proved for the crime charged.
939.66(2) (2) A crime which is a less serious type of criminal homicide than the one charged.
939.66(2m) (2m) A crime which is a less serious or equally serious type of battery than the one charged.
939.66(2r) (2r) A crime which is a less serious type of violation under s. 943.23 than the one charged.
939.66(3) (3) A crime which is the same as the crime charged except that it requires recklessness or negligence while the crime charged requires a criminal intent.
939.66(4) (4) An attempt in violation of s. 939.32 to commit the crime charged.
939.66(4m) (4m) A crime of failure to timely pay child support under s. 948.22 (3) when the crime charged is failure to pay child support for more than 120 days under s. 948.22 (2).
939.66(5) (5) The crime of attempted battery when the crime charged is sexual assault, sexual assault of a child, robbery, mayhem or aggravated battery or an attempt to commit any of them.
939.66(6) (6) A crime specified in s. 940.285 (2) (b) 4. or 5. when the crime charged is specified in s. 940.19 (2) to (6), 940.225 (1), (2) or (3) or 940.30.
939.66(6c) (6c) A crime that is a less serious type of violation under s. 940.285 than the one charged.
939.66(6e) (6e) A crime that is a less serious type of violation under s. 940.295 than the one charged.
939.66(7) (7) The crime specified in s. 940.11 (2) when the crime charged is specified in s. 940.11 (1).
939.66 Annotation The controlling principles as to when a lesser included offense charge should be given are discussed. State v. Melvin, 49 Wis. 2d 246, 181 N.W.2d 490.
939.66 Annotation Attempted battery can only be an included crime as to the specific offenses listed. State v. Melvin, 49 Wis. 2d 246, 181 N.W.2d 490.
939.66 Annotation A charge of possession of a pistol by a minor is not an included crime in a charge of attempted first degree murder because it includes the element of minority that the greater crime does not. State v. Melvin, 49 Wis. 2d 246, 181 N.W.2d 490.
939.66 Annotation Disorderly conduct is not a lesser included offense of criminal damage to property. State v. Chacon, 50 Wis. 2d 73, 183 N.W.2d 84.
939.66 Annotation While attempted aggravated battery is not an included crime of aggravated battery under sub. (1), it is under sub. (4). The reduced charge does not put the defendant in double jeopardy. Dunn v. State, 55 Wis. 2d 192, 197 N.W.2d 749.
939.66 Annotation Under sub. (1), the emphasis is on the proof, not the pleading, and the "stricken word test" stated in Eastway v. State, 189 W 56, is not incorporated in the statute. Martin v. State, 57 Wis. 2d 499, 204 N.W.2d 499.
939.66 Annotation Section 947.015, bomb scares, is not an included crime in s. 941.30, recklessly endangering safety. State v. Van Ark, 62 Wis. 2d 155, 215 N.W.2d 41.
939.66 Annotation Where the evidence overwhelmingly showed that a shooting was intentional, failure to include negligent homicide under ss. 940.06 and 940.08 as lesser included offenses was not error. Hayzes v. State, 64 Wis. 2d 189, 218 N.W.2d 717.
939.66 Annotation In order to justify the submission of an instruction on a lesser degree of homicide than that with which defendant is charged there must be a reasonable basis in the evidence for acquittal on the greater charge and for conviction on the lesser charge. Harris v. State, 68 Wis. 2d 436, 228 N.W.2d 645.
939.66 Annotation For one crime to be included in another, it must be utterly impossible to commit the greater crime without committing the lesser. Randolph v. State, 83 Wis. 2d 630, 266 N.W.2d 334 (1978).
939.66 Annotation The test under sub. (1) concerns legal, statutorily defined elements of the crime, not peculiar facts of case. State v. Verhasselt, 83 Wis. 2d 647, 266 N.W.2d 342 (1978).
939.66 Annotation The trial court erred in denying the defendant's request for the submission of a verdict of endangering safety by conduct regardless of life as a lesser included offense of attempted murder. Hawthorne v. State, 99 Wis. 2d 673, 299 N.W.2d 866 (1981).
939.66 Annotation Without clear legislative intent to the contrary, multiple punishment may not be imposed for felony-murder and the underlying felony. State v. Gordon, 111 Wis. 2d 133, 330 N.W.2d 564 (1983).
939.66 Annotation Where a defendant charged with 2nd degree murder denied firing the fatal shot, a manslaughter instruction was properly denied. State v. Sarabia, 118 Wis. 2d 655, 348 N.W.2d 527 (1984).
939.66 Annotation Under the "elements only" test, offenses that require proof of nonconsent are not lesser included offenses of offenses where proof of nonconsent is not required. State v. Richards, 123 Wis. 2d 1, 365 N.W.2d 7 (1985).
939.66 Annotation When police confiscated a large quantity of drugs from an empty home and the next day searched the defendant upon his return home, confiscating a small quantity of the same drugs, the defendant's conviction for a lesser-included offense of possession and a greater offense of possession with intent to deliver did not violate double jeopardy. State v. Stevens, 123 Wis. 2d 303, 367 N.W.2d 788 (1985).
939.66 Annotation Reckless use of weapons under s. 941.20 (1) (a), 1983 stats., is not lesser included offense of crime of endangering safety by conduct regardless of life while armed under ss. 939.63 (1) (a) 3. and 941.30, 1983 stats. State v. Carrington, 134 Wis. 2d 260, 397 N.W.2d 484 (1986).
939.66 Annotation The court must instruct the jury on a properly requested lesser offense even though the statute of limitations bars the court from entering a conviction on the lesser offense. State v. Muentner, 138 Wis. 2d 374, 406 N.W.2d 415 (1987).
939.66 Annotation The Court of Appeals may not direct the circuit court to enter a judgment of conviction for a lesser included offense when a jury verdict of guilty on a greater offense is reversed for insufficiency of evidence and the jury was not instructed on the lesser included offense. State v. Myers, 158 Wis. 2d 356, 461 N.W.2d 777 (1990).
939.66 Annotation Convictions for both first-degree murder and burglary/battery are permissible. State v. Kuntz, 160 Wis. 2d 722, 467 N.W.2d 531 (1991).
939.66 Annotation Evidence at trial may suggest to the state that an instruction on a lesser included offense is appropriate; it is unreasonable for a defendant to assume at the outset of trial that evidence may not affect the state's prosecuting position. State v. Fleming, 181 Wis. 2d 546, 510 N.W.2d 837 (Ct. App. 1993).
939.66 Annotation This section does not bar multiple convictions when homicides are "equally serious". Two Class C felonies with the same maximum penalty were equally serious although one carried additional sanctions of driver license revocation and an additional penalty assessment which the other did not. State v. Lechner, 217 Wis. 2d 392, 576 N.W.2d 912 (1998).
939.66 Annotation Misdemeanor battery is an included crime of felony battery, but they are not the same offense. Acquittal on felony battery charges does not prevent subsequent prosecution for misdemeanor battery. State v. Vassos, 218 Wis. 2d 330, 579 N.W.2d 35 (1998).
939.66 Annotation There is no rule that when a more specific crime could have been charged the defendant loses the right to a lesser-included instruction on a more general offense. That retail theft, which was not a lesser-included offense of armed robbery, could have been charged did not prevent the giving of an instruction on theft as a lesser included offense of armed robbery. State v. Jones, 228 Wis. 2d 593, 598 N.W.2d 259 (Ct. App. 1999).
939.66 Annotation Multiple Punishment in Wisconsin and the Wolske Decision: Is It Desirable to Permit Two Homicide Convictions for Causing a Single Death? 1990 WLR 553.
939.66 Note NOTE: See also notes to Art. I, sec. 8, Double Jeopardy.
RIGHTS OF THE ACCUSED.
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This is an archival version of the Wis. Stats. database for 1999. See Are the Statutes on this Website Official?