SB550: Bill Text

SB550, s. 5 Section 5. 302.113 (7) of the statutes, as affected by 2001 Wisconsin Act 109, is amended to read:

SB550,9,16 302.113 (7) Any inmate released to extended supervision under this section is subject to all conditions and rules of extended supervision until the expiration of the term of extended supervision portion of the bifurcated sentence. The department may set conditions of extended supervision in addition to any conditions of extended supervision required under s. 302.116, if applicable, or set by the court under sub. (7m) or (9) (ar) 2. or 3. or s. 973.01 (5) if the conditions set by the department do not conflict with the court's conditions. The reviewing authority, as defined in sub. (9) (ag), may set or modify conditions under sub. (9) (am) 2. or 3.

SB550, s. 6 Section 6. 302.113 (9) (am) of the statutes, as affected by 2001 Wisconsin Act 109, is renumbered 302.113 (9) (am) (intro.) and amended to read:

SB550,9,21 302.113 (9) (am) (intro.) If a person released to extended supervision under this section violates a condition of extended supervision, the reviewing authority may revoke do one of the following:

SB550,9,22 1. Revoke the extended supervision of the person.

SB550,9,25 (ap) If the extended supervision of the person is revoked, the person shall be returned to the circuit court for the county in which the person was convicted of the offense for which he or she was on extended supervision, and the court shall order the person to be returned to prison for any specified period of time that does not exceed the time remaining on the bifurcated sentence reviewing authority shall make a recommendation to the court concerning the period of time for which the person should be returned to prison. The recommended time period may not exceed the time remaining on the bifurcated sentence, which is the total length of the bifurcated sentence, less time served by the person in confinement under the sentence before release to extended supervision under sub. (2) and less all time served in confinement for previous revocations of extended supervision under the sentence. A court order returning a person to prison under this subdivision shall provide the person whose extended supervision was revoked with credit in accordance with ss. 304.072 and 973.155.

SB550, s. 7 Section 7. 302.113 (9) (am) 2. of the statutes is created to read:

SB550,10,16 302.113 (9) (am) 2. If the violation relates to the person's use of alcohol or other drugs and subd. 3. does not apply, order the person to submit to a substance abuse assessment or substance abuse treatment or both under s. 51.49 in the person's county of residence as a condition of extended supervision.

SB550, s. 8 Section 8. 302.113 (9) (am) 3. of the statutes is created to read:

SB550,10,22 302.113 (9) (am) 3. If the person is required to participate in a substance abuse treatment program as a condition of extended supervision and the violation relates to the person's participation in the program, establish, maintain, or modify conditions of extended supervision relating to the person's participation in the program.

SB550, s. 9 Section 9. 302.113 (9) (ar) of the statutes is created to read:

SB550,10,25 302.113 (9) (ar) If a person is returned to court under par. (ap) after revocation of extended supervision, the court shall do one of the following:

SB550,11,5 1. Order the person to be returned to prison for any specified period of time that does not exceed the time remaining on the bifurcated sentence, as calculated under par. (ap). A court order returning a person to prison under this subdivision shall provide the person whose extended supervision was revoked with credit in accordance with ss. 304.072 and 973.155.

SB550,11,10 2. If the violation relates to the person's use of alcohol or other drugs and subd. 3. does not apply, vacate the reviewing authority's decision to revoke the person's extended supervision and order the person to submit to a substance abuse assessment or substance abuse treatment or both under s. 51.49 in the person's county of residence as a condition of extended supervision.

SB550,11,16 3. If the person is required to participate in a substance abuse treatment program as a condition of extended supervision and the violation relates to the person's participation in the program, vacate the reviewing authority's decision to revoke the person's extended supervision and establish, maintain, or modify conditions of extended supervision relating to the person's participation in the program.

SB550, s. 10 Section 10. 302.113 (9) (at) of the statutes, as created by 2001 Wisconsin Act 109, is repealed.

SB550, s. 11 Section 11. 302.113 (9) (b) of the statutes, as affected by 2001 Wisconsin Act 109, is amended to read:

SB550,12,3 302.113 (9) (b) A person who is returned to prison after revocation of extended supervision shall be incarcerated for the entire period of time specified by the court under par. (am) (ar) 1. The period of time specified under par. (am) (ar) 1. may be extended in accordance with sub. (3). If a person is returned to prison under par. (am) (ar) 1. for a period of time that is less than the time remaining on the bifurcated sentence, the person shall be released to extended supervision after he or she has served the period of time specified by the court under par. (am) (ar) 1. and any periods of extension imposed in accordance with sub. (3).

SB550, s. 12 Section 12. 302.113 (9) (c) of the statutes, as affected by 2001 Wisconsin Act 109, is amended to read:

SB550,12,14 302.113 (9) (c) A person who is subsequently released to extended supervision after service of the period of time specified by the court under par. (am) (ar) 1. is subject to all conditions and rules under subs. (7) and, if applicable, (7m) until the expiration of the remaining extended supervision portion of the bifurcated sentence. The remaining extended supervision portion of the bifurcated sentence is the total length of the bifurcated sentence, less the time served by the person in confinement under the bifurcated sentence before release to extended supervision under sub. (2) and less all time served in confinement for previous revocations of extended supervision under the bifurcated sentence.

SB550, s. 13 Section 13. 304.06 (3b) of the statutes is created to read:

SB550,12,18 304.06 (3b) (a) In this subsection, "reviewing authority" means the division of hearings and appeals in the department of administration or, if the parolee waives the final administrative hearing, the secretary of corrections.

SB550,12,23 (b) If a parolee violates a condition of parole, the violation relates to the parolee's use of alcohol or other drugs, and par. (c) does not apply, the reviewing authority may, in lieu of revoking parole, order the parolee to submit to a substance abuse assessment or substance abuse treatment or both under s. 51.49 in the person's county of residence as a condition of parole.

SB550,13,5 (c) If a parolee is required to participate in a substance abuse treatment program as a condition of parole and the parolee violates a condition of parole that relates to the parolee's participation in the program, the division of hearings and appeals in the department of administration or, if the parolee waives the final administrative hearing, the secretary of corrections may, in lieu of revoking parole, establish, maintain, or modify conditions of parole relating to the parolee's participation in the program.

SB550, s. 14 Section 14. 304.074 (1d) of the statutes is created to read:

SB550,13,7 304.074 (1d) In this section:

SB550,13,10 1. "Discharge," with respect to a person subject to a conditional discharge order or on probation under s. 971.41, means a discharge and dismissal under s. 971.41 (4) or an order vacating a judgment of conviction under s. 971.41 (6) (b).

SB550,13,13 2. "Probationer" includes a person subject to a conditional discharge order or on probation under s. 971.41 if so determined by the department under s. 971.41 (10m).

SB550, s. 15 Section 15. 808.075 (4) (g) 3. of the statutes is amended to read:

SB550,13,16 808.075 (4) (g) 3. Imposition of sentence upon revocation of probation under s. 973.10 (2) (2b) (c) 1. or (2e) (a).

SB550, s. 16 Section 16. 961.47 (title) of the statutes is renumbered 971.41 (title) and amended to read:

SB550,13,20 971.41 (title) Conditional discharge for possession or attempted possession as first offense Alternatives to incarceration for drug offenders.

SB550, s. 17 Section 17. 961.47 (1) of the statutes is renumbered 971.41 (2) (a) (intro.) and amended to read:

SB550,14,13 971.41 (2) (a) (intro.) Whenever any person who has not previously been convicted of any offense under this chapter, or of any offense under any statute of the United States or of any state or of any county ordinance relating to controlled substances or controlled substance analogs, narcotic drugs, marijuana or stimulant, depressant or hallucinogenic drugs, is a resident of this state pleads guilty or no contest to or is found guilty of possession or attempted possession of a controlled substance or controlled substance analog under s. 961.41 (3g) (b) one or more offenses in a simple drug offense case and there are no other charges against the person pending in that case, the court, without entering a judgment of guilt and with the consent of the accused, may shall defer further proceedings and place him or her on probation upon terms and conditions. Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided. order the person to submit to a substance abuse assessment. Upon receipt of the assessment report, the court shall, with the consent of the accused, enter a conditional discharge order under sub. (3), unless the assessment report indicates that the person is not amenable to treatment or all of the following apply:

SB550,14,22 (4) Compliance with conditional discharge order. Upon fulfillment of the terms and conditions of a conditional discharge order entered under sub. (2), the court shall discharge the person and dismiss the proceedings against him or her. Discharge and dismissal under this section shall be without adjudication of guilt and is not a conviction for purposes of prohibitions, disqualifications or, disabilities, increased penalties, or other adverse or unfavorable treatment imposed by law upon conviction of a crime, including the additional penalties imposed for 2nd or subsequent convictions under s. 961.48. There may be only one discharge and dismissal under this section with respect to any person.

SB550, s. 18 Section 18. 961.47 (2) of the statutes is renumbered 971.41 (2) (c) and amended to read:

SB550,15,6 971.41 (2) (c) Within 20 days after probation is granted a conditional discharge order is entered under this section subsection, the clerk of court shall notify the department of justice of the name of the individual granted probation who is subject to the order and any other information required by the department under rules promulgated by the department. This report shall be upon forms provided by the department.

SB550, s. 19 Section 19. 961.472 of the statutes, as affected by 2003 Wisconsin Act 49, is repealed.

SB550, s. 20 Section 20. 961.475 of the statutes is amended to read:

SB550,16,2 961.475 Treatment option. Whenever any person pleads guilty to or is found guilty of possession or attempted possession of a controlled substance or controlled substance analog under s. 961.41 (3g), the court may, upon request of the person and with the consent of a treatment facility with special inpatient or outpatient programs for the treatment of drug dependent persons, allow the person to enter the treatment programs voluntarily for purposes of treatment and rehabilitation. Treatment shall be for the period the treatment facility feels is necessary and required, but shall not exceed the maximum sentence allowable unless the person consents to the continued treatment. At the end of the necessary and required treatment, with the consent of the court, the person may be released from sentence. If treatment efforts are ineffective or the person ceases to cooperate with treatment rehabilitation efforts, the person may be remanded to the court for completion of sentencing. The court may then enter a conditional discharge order under s. 971.41 (2) with respect to the person if he or she meets the requirements under sub. (2) (b) 2. a. to d. and is not a violent offender. Otherwise, the court shall sentence the person. Sentencing may include placing the person on probation under s. 971.41 (6) if the person is not a violent offender. This section does not apply if the court is required to enter a conditional discharge order under s. 971.41 (2).

SB550, s. 21 Section 21. 971.41 (1) of the statutes is created to read:

SB550,16,4 971.41 (1) Definitions.

SB550,16,5 (a) "Disqualifying offense" means any of the following:

SB550,16,6 1. A Class A, B, C, D, or E felony.

SB550,16,7 2. An offense under s. 941.20, 941.21, 941.23, 941.235, 941.237, or 941.29.

SB550,16,8 3. An offense under s. 23.33 (4c), 30.681, 346.63, 350.101, or 940.25.

SB550,16,10 (b) "Drug" means a controlled substance, as defined in s. 961.01 (4), or a controlled substance analog, as defined in s. 961.01 (4m).

SB550,16,13 (c) "Simple drug offense" means an offense or an attempt to commit an offense under s. 961.41 (3g), 961.42, 961.43 (1) (a), or 961.573 (1), but does not include conduct that constitutes a violation of s. 961.573 (3).

SB550,16,15 (d) "Simple drug offense case" means a case in which a person is charged with one or more simple drug offenses but not with any other offense.

SB550,16,16 (e) "Violent offender" means a person to whom one of the following applies:

SB550,16,20 1. The person has been charged with or convicted of an offense in a pending case and, during the course of the offense, the person carried, possessed, or used a dangerous weapon, the person used force against another person, or a person died or suffered serious bodily harm.

SB550,16,23 2. The person has one or more prior convictions for a felony involving the use or attempted use of force against another person with the intent to cause death or serious bodily harm.

SB550, s. 22 Section 22. 971.41 (2) (title) and (a) 1. to 3. of the statutes are created to read:

SB550,16,25 971.41 (2) (title) Conditional discharge.

SB550,17,3 (a) 1. The person has 2 or more prior convictions for a simple drug offense or for an offense committed in another jurisdiction that would be a simple drug offense if committed in this state.

SB550,17,5 2. At least one of the offenses under subd. 1. was committed in the 10-year period immediately before the person committed the current offense.

SB550,17,8 3. The person was offered an opportunity to receive substance abuse treatment and rehabilitation services under this section in connection with one of the offenses under subd. 1.

SB550, s. 23 Section 23. 971.41 (2) (b) of the statutes is created to read:

SB550,17,19 971.41 (2) (b) 1. Whenever any person who is a resident of this state pleads guilty or no contest to or is found guilty of a crime other than a disqualifying offense and there are no other charges against the person pending in that case, the court, without entering a judgment of guilt, shall order the person to submit to a substance abuse assessment by the county department of community programs if the person or the district attorney requests a hearing, or the court on its own motion orders a hearing, on whether subd. 2. a. to d. applies. This subdivision does not apply if the court is required to enter a conditional discharge order under par. (a) or if an assessment conducted under par. (a) indicates that the person is not amenable to treatment.

SB550,17,25 2. Upon receipt of the assessment results, the court shall hold a hearing on the person's eligibility for conditional discharge under this paragraph. If the person agrees to participate in substance abuse treatment and rehabilitation services and if the court finds by clear and convincing evidence that all of the following are true, the court shall enter a conditional discharge order or enter a judgment of conviction and place the person on probation under sub. (6):

SB550,18,1 a. The offense was significantly motivated by the person's substance abuse.

SB550,18,3 b. Neither the victim of the offense nor the public will be harmed by the entry of a conditional discharge order or by placing the person on probation.

SB550,18,5 c. Entering a conditional discharge order or placing the person on probation is in the best interests of the public.

SB550,18,7 d. Entering a conditional discharge order or placing the person on probation will not unduly depreciate the seriousness of the offense.

SB550, s. 24 Section 24. 971.41 (2) (c) of the statutes is created to read:

SB550,18,11 971.41 (2) (c) If the court does not enter a conditional discharge order or place a person on probation under this subsection, the court shall proceed as otherwise provided in this chapter.

SB550, s. 25 Section 25. 971.41 (3) of the statutes is created to read:

SB550,18,24 971.41 (3) Requirements of order; monitoring compliance. A court that enters a conditional discharge order under sub. (2) shall require, as condition of its order, that the person participate in specified substance abuse treatment and rehabilitation services that are included in the plan of services developed by the county department of community programs under s. 51.49 (1). Unless the order is revoked, the person shall remain subject to the conditional discharge order until the court determines that the person has successfully completed his or her substance abuse treatment and for at least 6 months thereafter. The court and, except as provided in sub. (10), the department shall monitor the person's compliance with the court's order. Subject to sub. (5) (b), the court may modify its order at any time. If the person violates the conditional discharge order, the department or a contractor under sub. (10), whichever is applicable, shall notify the court.

SB550, s. 26 Section 26. 971.41 (5) of the statutes is created to read:

SB550,19,4 971.41 (5) Violation of conditional discharge order; graduated sanctions; revocation. (a) If the person violates a condition of a conditional discharge order, the person's probation agent or probation supervisor selected under sub. (10), whichever is applicable, shall notify the court.

SB550,19,8 (am) If a person violates a term or condition of a conditional discharge order that is unrelated to the person's substance abuse treatment or the person's use of alcohol or other drugs, the court may revoke the order, enter the judgment of conviction, and sentence the person.

SB550,19,15 (b) For violations of terms or conditions of a conditional discharge order that are related to the person's substance abuse treatment or the person's use of alcohol or other drugs, any sanctions that the court imposes shall be graduated sanctions, which may include modifying the treatment requirements or the conditional discharge order. The court may revoke the conditional discharge order based on such a violation only if the court has previously imposed sanctions on the person for other violations under this paragraph.

SB550, s. 27 Section 27. 971.41 (6) of the statutes is created to read:

SB550,20,4 971.41 (6) Probation. (a) If a court revokes a conditional discharge order under sub. (5) (b) or if the court makes all of the findings listed in sub. (2) (b) 2. a. to d. but does not enter a conditional discharge order, the court shall enter the judgment of conviction but withhold sentence and place the person on probation. The court shall require, as a condition of probation, that the person participate in specified substance abuse treatment program and rehabilitative services that are included in the plan of services developed by the county department of community programs under s. 51.49 (1). Notwithstanding s. 973.09 (2), unless the order is revoked under par. (c) or (e), the person shall remain subject to probation until the court determines that the person has successfully completed his or her substance abuse treatment and for at least 6 months thereafter. The court and, except as provided in sub. (10), the department shall monitor the person's compliance with the court's order. Subject to par. (d), the court may modify its order at any time.

SB550,20,12 (b) If a person completes his or her term of probation without revocation under par. (c) or (e), the court shall vacate the judgment of conviction for the offense for which the person was placed on probation. If the court vacates a judgment of conviction under this paragraph, the person shall not be subject to any prohibition, disqualification, disability, increased penalty, or other adverse or unfavorable treatment that would otherwise result from the person having been convicted of the offense, including the additional penalties imposed for 2nd or subsequent convictions under s. 961.48.

SB550,20,15 (bm) If the person violates a condition of probation imposed under this subsection, the person's probation agent or the probation supervisor under sub. (10), whichever is applicable, shall notify the court.

SB550,20,19 (c) If the court finds, after providing the person an opportunity for a hearing, that a person violated a condition of probation imposed under this subsection that is unrelated to the person's substance abuse treatment or the person's use of alcohol or other drugs, the court may revoke the person's probation.

SB550,20,25 (d) For violations of conditions of probation that are imposed under this subsection and that are related to the person's substance abuse treatment or the person's use of alcohol or other drugs, any sanctions that the court imposes shall be graduated sanctions, which may include incarceration in a jail, house of corrections, or probation and parole holding facility. The first incarceration sanction may not exceed 2 weeks and the 2nd incarceration sanction may not exceed 30 days.

SB550,21,4 (e) The court may revoke a person's probation imposed under this subsection for violating a condition of probation that is related to the person's substance abuse treatment or the person's use of alcohol or other drugs only if, after providing the person an opportunity for a hearing, the court finds all of the following:

SB550,21,6 1. That the person violated a condition of probation that is related to the person's substance abuse treatment or the person's use of alcohol or other drugs.

SB550,21,7 2. That one of the following applies:

SB550,21,9 a. The violation under subd. 1. occurred after the court modified the treatment and rehabilitation conditions of the probation order or imposed graduated sanctions.

SB550,21,11 b. There are no reasonable treatment and rehabilitation services options other than the services originally ordered by the court.

SB550,21,13 3. That there is no reasonable likelihood that the person will abstain from illegal activity for the remainder of the term of probation.

SB550,21,16 (f) If the court revokes a person's probation under par. (c) or (e), the court shall sentence the person. A sentence under this paragraph may be a sentence of probation under s. 973.09.

SB550, s. 28 Section 28. 971.41 (7) to (12) of the statutes are created to read:

SB550,21,21 971.41 (7) Expungement. (a) A person whose case is dismissed under sub. (4) or whose conviction is vacated under sub. (6) (b) may petition the court to expunge the record of the case. The court may expunge the record if it determines that the person will benefit and society will not be harmed by the expungement.

SB550,22,2 (b) The clerk of court shall notify the department of justice of any expungement ordered under par. (a). Notwithstanding SCR 72.06 (3), the existence and contents of a court record that is expunged under par. (a) may be disclosed to the defendant or, if authorized by the defendant, to his or her attorney. Otherwise, neither the existence nor the contents of the record may be disclosed to any person.

SB550,22,17 (8) Offenses committed outside of a person's county of residence. (a) If a person becomes subject to a conditional discharge order in a county other than his or her county of residence, the court that enters the order shall transfer the case to the court for the person's county of residence, which shall monitor the person's compliance with the order under sub. (3). If the court for the person's county of residence determines that the person has successfully complied with the order, the court shall discharge the person and dismiss the proceedings under sub. (4). If the court for the person's county of residence revokes the order for a violation unrelated to the person's substance abuse treatment or the person's use of alcohol or other drugs, the court may transfer the case to the court that entered the order, which shall enter the judgment of conviction and sentence the person. If the court for the person's county of residence revokes the order based on the person violating a condition of probation that is related to the person's substance abuse treatment or the person's use of alcohol or other drugs, the court for the person's county of residence shall proceed under sub. (5) (b).