2003 - 2004 LEGISLATURE
May 29, 2003 - Introduced by Representatives Staskunas, Petrowski, Taylor,
Ladwig, Musser, Nass, Albers, M. Lehman, Seratti, Hahn
and Huber,
cosponsored by Senators Stepp, Lassa and Plale. Referred to Committee on
Criminal Justice.
AB367,1,4 1An Act to renumber and amend 946.42 (1) (a); to amend 302.113 (2), 302.113
2(4) and 973.15 (1); and to create 946.42 (1) (a) 1. e., 946.42 (5) and 973.15 (8)
3(a) 1m. of the statutes; relating to: escapes from community-based residential
4facilities by persons on conditional release and providing a penalty.
Analysis by the Legislative Reference Bureau
Under current law, a person who is confined in a jail, prison, secure juvenile
facility, or other institution or is in the custody of a law enforcement officer may not
intentionally escape from custody. If the person escaping was in custody based on
his or her commission or alleged commission of a crime, the person may be fined up
to $10,000, sentenced to a term of imprisonment (consisting of a term of confinement
in state prison followed by a term of extended supervision) of up to six years, or both.
The prohibition on escapes applies to a person who has been found not guilty of a
crime by reason of mental disease or defect (an NGI finding), but only if the
Department of Health and Family Services (DHFS) has placed the person in an
institution. It does not apply if the court has authorized the person to live in the
community (conditional release) and the person escapes from a community-based
residential facility (CBRF) selected as his or her community placement by DHFS
(though an escape from a CBRF may constitute a violation of the order authorizing
conditional release, which may result in the person being returned to or placed in an
This bill extends the prohibition on escapes to a person on conditional release
who escapes from a CBRF. The bill also addresses how a sentence for that offense

may be served. Under current law, a sentence for a crime begins on the day on which
it is imposed, unless the court orders that the defendant serve the sentence
consecutive to another sentence that he or she is or will be serving. But, if a person
is convicted of a new offense while he or she is committed to DHFS based on an NGI
finding, his or her sentence for the new offense may not be served consecutive to the
NGI commitment. Instead, the person's sentence of imprisonment or term of
probation begins immediately. If the person is placed on probation, he or she may
remain in a DHFS-designated institution or, if he or she is on conditional release,
in a DHFS-designated CBRF. If the person is sentenced to a term of imprisonment,
the Department of Corrections or the county jail may arrange for the person's
placement in an institution through DHFS, but the person must otherwise be
confined in prison or jail. He or she may not remain in the community. In any event,
the period of the person's commitment to DHFS continues to run while he or she is
serving the sentence for the new offense.
Under this bill, if the court sentences a person on conditioned release to jail or
prison for escaping from a CBRF and the person is also ordered to return to or be
placed in an institution for violating the terms of his or her conditional release (for
example, because of the escape), the court may order that the person's commitment
to DHFS be temporarily suspended until the person is no longer confined in
connection with his or her conviction for the new offense. In addition, if the court
sentences the person to prison or places the person on probation, the court may
require the person to serve the term of extended supervision required as part of the
prison sentence or serve the term of probation after the expiration or termination of
the commitment order.
Because this bill creates a new crime or revises a penalty for an existing crime,
the Joint Review Committee on Criminal Penalties may be requested to prepare a
report concerning the proposed penalty and the costs or savings that are likely to
result if the bill is enacted.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB367, s. 1 1Section 1. 302.113 (2) of the statutes is amended to read:
AB367,2,62 302.113 (2) Except as provided in subs. (3) and (9) and s. 946.42 (5) (b), an
3inmate subject to this section is entitled to release to extended supervision after he
4or she has served the term of confinement in prison portion of the sentence imposed
5under s. 973.01, as modified by the sentencing court under sub. (9g) or s. 302.045 (3m)
6(b) 1. or 973.195 (1r), if applicable.
AB367, s. 2
1Section 2. 302.113 (4) of the statutes is amended to read:
AB367,3,52 302.113 (4) All consecutive sentences imposed for crimes committed on or after
3December 31, 1999, shall be computed as one continuous sentence. The Except as
4provided under s. 946.42 (5) (b), the
person shall serve any term of extended
5supervision after serving all terms of confinement in prison.
AB367, s. 3 6Section 3. 946.42 (1) (a) of the statutes is renumbered 946.42 (1) (a) 1. (intro.)
7and amended to read:
AB367,3,98 946.42 (1) (a) 1. (intro.) "Custody" includes, without limitation actual, any of
9the following:
AB367,3,14 10a. Actual custody of an institution, including a secured correctional facility, as
11defined in s. 938.02 (15m), a secured child caring institution, as defined in s. 938.02
12(15g), a secured group home, as defined in s. 938.02 (15p), a secure detention facility,
13as defined in s. 938.02 (16), a Type 2 child caring institution, as defined in s. 938.02
14(19r), or a juvenile portion of a county jail, or.
AB367,3,15 15b. Actual custody of a peace officer or institution guard and constructive.
AB367,3,20 16c. Constructive custody of prisoners and juveniles subject to an order under s.
1748.366, 938.183, 938.34 (4d), (4h) or (4m) or 938.357 (4) or (5) (e) temporarily outside
18the institution whether for the purpose of work, school, medical care, a leave granted
19under s. 303.068, a temporary leave or furlough granted to a juvenile or otherwise.
20Under s. 303.08 (6) it means, without limitation, that
AB367,3,22 21d. Custody of the sheriff of the county to which the a prisoner was transferred
22after conviction. It under s. 303.08 (6).
AB367,4,2 232. "Custody" does not include the custody of a probationer, parolee or person
24on extended supervision by the department of corrections or a probation, extended
25supervision or parole officer or the custody of a person who has been released to

1aftercare supervision under ch. 938 unless the person is in actual custody or is
2subject to a confinement order under s. 973.09 (4).
AB367, s. 4 3Section 4. 946.42 (1) (a) 1. e. of the statutes is created to read:
AB367,4,64 946.42 (1) (a) 1. e. Constructive custody of the department of health and family
5services, if the person is placed, through an order for conditional release under s.
6971.17 (3) or (4), in a community-based residential facility, as defined in s. 50.01 (1g).
AB367, s. 5 7Section 5. 946.42 (5) of the statutes is created to read:
AB367,4,118 946.42 (5) (a) If a court sentences a person to a county jail or house of correction
9for an escape from custody as described in sub. (1) (a) 1. e., the court may stay the
10commitment order entered with respect to that person under s. 971.17 (3) until the
11completion of the person's sentence.
AB367,4,1712 (b) If a court sentences a person to state prison for an escape from custody as
13described in sub. (1) (a) 1. e., the court may stay the commitment order entered with
14respect to that person under s. 971.17 (3) until the person is released to extended
15supervision. If the court stays the commitment order under this paragraph, it may
16order that the term of extended supervision be served upon the expiration or
17termination of the commitment order.
AB367,4,2118 (c) If a court places a person on probation for an escape from custody as
19described in sub. (1) (a) 1. e., the court may order that term of probation commence
20upon the expiration or termination of the commitment order entered with respect to
21that person under s. 971.17 (3).
AB367,5,222 (d) Notwithstanding par. (a) or (b), if a court, as part of an order placing a person
23in an institution under s. 971.17 (3) (e), has ordered that the person is not competent
24to refuse medication or treatment for the person's mental condition, the order

1regarding the person's competency to refuse medication or treatment shall not be
2stayed during the person's confinement under par. (a) or (b).
AB367, s. 6 3Section 6. 973.15 (1) of the statutes is amended to read:
AB367,5,84 973.15 (1) Except as provided in s. 973.032, all sentences to the Wisconsin state
5prisons shall be for one year or more. Except as otherwise provided in this section
6and s. 946.42 (5) (c), all sentences commence at noon on the day of sentence, but time
7which elapses after sentence while the convicted offender is at large on bail shall not
8be computed as any part of the term of imprisonment.
AB367, s. 7 9Section 7. 973.15 (8) (a) 1m. of the statutes is created to read:
AB367,5,1110 973.15 (8) (a) 1m. With respect to a term of extended supervision under s.
11946.42 (5) (b).
AB367, s. 8 12Section 8. Initial applicability.
AB367,5,1613 (1) This act first applies to persons who, while committed to the department of
14health and family services under section 971.17 of the statutes, escape from a
15community-based residential facility, as defined in section 50.01 (1g) of the statutes,
16on the effective date of this subsection.
AB367,5,1717 (End)