972.13 Annotation
The trial court can on motion or on its own motion modify a criminal sentence if the motion is made within 90 days after sentencing. The first judgment should not be vacated; it should be amended. Hayes v. State,
46 Wis. 2d 93,
175 N.W.2d 625.
972.13 Annotation
A trial court must inform the defendant of the right to appeal. If it does not, the defendant may pursue a late appeal. Peterson v. State,
54 Wis. 2d 370,
195 N.W.2d 837.
972.13 Annotation
The court did not abuse its discretion in revoking probation, reinstating the prior sentences and sentencing on 5 subsequent offenses for a total cumulative sentence of 16 years when the defendant had a long record and interposed a frivolous defense in the later trials. Lange v. State,
54 Wis. 2d 569,
196 N.W.2d 680.
972.13 Annotation
Hayes does not impose a jurisdictional limit on the power of a court to review a sentence. State ex rel. Warren v. County Court,
54 Wis. 2d 613,
197 N.W.2d 1.
972.13 Annotation
Following sentencing the trial court must not only advise the defendant of the right to appeal but also advise the defendant and defense counsel of the obligation of defense counsel to continue representation pending a decision as to appeal and until other counsel is appointed. Whitmore v. State,
56 Wis. 2d 706,
203 N.W.2d 56.
972.13 Annotation
A trial judge has no power to validly sentence with a mental reservation that he might modify the sentence within 90 days if the defendant has profited from imprisonment, and he cannot change an imposed sentence unless new factors are present. State v. Foellmi,
57 Wis. 2d 572,
205 N.W.2d 144.
972.13 Annotation
A claim that the trial court lacked jurisdiction to impose sentence because it failed to enter a judgment of conviction on the jury's verdict was not reviewable because it involved no jurisdictional question, and the construction of the statute was not raised by defendant in his motion for postconviction relief nor did the defendant go back to the trial court for relief as a basis for an appeal. Sass v. State,
63 Wis. 2d 92,
216 N.W.2d 22.
972.13 Annotation
When Whitmore instructions are given, the defendant must show that the failure to move for new trial constituted an unintentional waiver of rights. Thiesen v. State,
86 Wis. 2d 562,
273 N.W.2d 314 (1979).
972.13 Annotation
Judgment entered by a state court during the pendency of removal proceedings in federal court was void. State v. Cegielski,
124 Wis. 2d 13,
368 N.W.2d 628 (1985).
972.13 Annotation
A court's refusal to poll jurors individually was reversible error. State v. Wojtalewicz,
127 Wis. 2d 344,
379 N.W.2d 338 (Ct. App. 1985).
972.13 Annotation
A written judgment of conviction is not a prerequisite to sentencing. State v. Pham,
137 Wis. 2d 31,
403 N.W.2d 35 (1987).
972.13 Annotation
When the court allowed voir dire after polling the jury on its guilty verdict and when one juror's responses seriously undermined the previous vote of guilty, the jury's verdict was no longer unanimous, requiring new trial. State v. Cartagena,
140 Wis. 2d 59,
409 N.W.2d 386 (Ct. App. 1987).
972.13 Annotation
There is no error in noting dismissed charges on a judgment of conviction. State v. Theriault,
187 Wis. 2d 125,
522 N.W.2d 254 (Ct. App. 1994).
972.13 Annotation
There was no impropriety in a trial court's inclusion of its parole recommendation in a judgment of conviction. State v. Whiteside,
205 Wis. 2d 685,
556 N.W.2d 443 (Ct. App. 1996).
972.13 Annotation
It was not fatal to a conviction under sub. (1) on a plea of no contest, that the defendant did not personally state "I plead no contest" when the totality of the facts, including a signed guilty plea questionnaire and colloquy with the judge on the record, indicated an intent to plead no contest. State v. Burns,
226 Wis. 2d 762,
594 N.W.2d 799 (1999).
972.14
972.14
Statements before sentencing. 972.14(1)(ag)
(ag) "Crime considered at sentencing" means any crime for which the defendant was convicted and any read-in crime, as defined in
s. 973.20 (1g) (b).
972.14(2)
(2) Before pronouncing sentence, the court shall ask the defendant why sentence should not be pronounced upon him or her and allow the district attorney, defense counsel and defendant an opportunity to make a statement with respect to any matter relevant to the sentence. In addition, if the defendant is under 21 years of age and if the court has not ordered a presentence investigation under
s. 972.15, the court shall ask the defendant if he or she has been adjudged delinquent under ch.
48, 1993 stats., or
ch. 938 or has had a similar adjudication in any other state in the 4 years immediately preceding the date the criminal complaint relating to the present offense was issued.
972.14(2m)
(2m) Before pronouncing sentence, the court shall inquire of the district attorney whether he or she has complied with
s. 971.095 (2) and with
sub. (3) (b), whether any of the victims of a crime considered at sentencing requested notice of the date, time and place of the sentencing hearing and, if so, whether the district attorney provided to the victim notice of the date, time and place of the sentencing hearing.
972.14(3)(a)(a) Before pronouncing sentence, the court shall determine whether a victim of a crime considered at sentencing wants to make a statement to the court. If a victim wants to make a statement, the court shall allow the victim to make a statement in court or to submit a written statement to be read in court. The court may allow any other person to make or submit a statement under this paragraph. Any statement under this paragraph must be relevant to the sentence.
972.14(3)(b)
(b) After a conviction, if the district attorney knows of a victim of a crime to be considered at sentencing, the district attorney shall make a reasonable attempt to contact that person to inform him or her of the right to make or provide a statement under
par. (a). Any failure to comply with this paragraph is not a ground for an appeal of a judgment of conviction or for any court to reverse or modify a judgment of conviction.
972.14 Annotation
A court's presentencing preparation and formulation of a tentative sentence does not deny defendant's right to allocution at sentencing. State v. Varnell,
153 Wis. 2d 334,
450 N.W.2d 524 (Ct. App. 1989).
972.14 Annotation
The right, under sub. (2), of a defendant to make a statement prior to sentencing does not apply to an extension of a placement under the intensive sanctions program. State v. Turner,
200 Wis. 2d 168,
546 N.W.2d 880 (Ct. App. 1996).
972.14 Annotation
Denial of the defendant's right to speak at sentencing is harmless error when a life sentence without parole is mandatory. State v. Lindsey,
203 Wis. 2d 423,
554 N.W.2d 215 (Ct. App. 1996).
972.15
972.15
Presentence investigation. 972.15(1)
(1) After a conviction the court may order a presentence investigation, except that the court may order an employee of the department to conduct a presentence investigation only after a conviction for a felony.
972.15(2)
(2) When a presentence investigation report has been received the judge shall disclose the contents of the report to the defendant's attorney and to the district attorney prior to sentencing. When the defendant is not represented by an attorney, the contents shall be disclosed to the defendant.
972.15(2c)
(2c) If the defendant is being sentenced under
s. 973.01 and he or she satisfies the criteria under
s. 302.045 (2) (b) and
(c), the person preparing the presentence investigation report shall include in the report a recommendation as to whether the defendant should be eligible for the challenge incarceration program under
s. 302.045.
972.15(2m)
(2m) The person preparing the presentence investigation report shall make a reasonable attempt to contact the victim to determine the economic, physical and psychological effect of the crime on the victim. The person preparing the report may ask any appropriate person for information. This subsection does not preclude the person who prepares the report from including any information for the court concerning the impact of a crime on the victim.
972.15(2s)
(2s) If the defendant is under 21 years of age, the person preparing the presentence investigation report shall attempt to determine whether the defendant has been adjudged delinquent under ch.
48, 1993 stats., or
ch. 938 or has had a similar adjudication in any other state in the 4 years immediately preceding the date the criminal complaint relating to the present offense was issued and, if so, shall include that information in the report.
972.15(3)
(3) The judge may conceal the identity of any person who provided information in the presentence investigation report.
972.15(4)
(4) After sentencing, unless otherwise authorized under
sub. (5) or ordered by the court, the presentence investigation report shall be confidential and shall not be made available to any person except upon specific authorization of the court.
972.15(5)
(5) The department may use the presentence investigation report for correctional programming, parole consideration or care and treatment of any person sentenced to imprisonment or the intensive sanctions program, placed on probation, released on parole or extended supervision or committed to the department under
ch. 51 or
971 or any other person in the custody of the department or for research purposes. The department may make the report available to other agencies or persons to use for purposes related to correctional programming, parole consideration, care and treatment, or research. Any use of the report under this subsection is subject to the following conditions:
972.15(5)(a)
(a) If a report is used or made available to use for research purposes and the research involves personal contact with subjects, the department, agency or person conducting the research may use a subject only with the written consent of the subject or the subject's authorized representative.
972.15(5)(b)
(b) The department or the agency or person to whom the report is made available shall not disclose the name or any other identifying characteristics of the subject, except for disclosure to appropriate staff members or employees of the department, agency or person as necessary for purposes related to correctional programming, parole consideration, care and treatment, or research.
972.15 Annotation
The defendant was not denied due process because the trial judge refused to order a psychiatric examination and have a psychiatric evaluation included in the presentence report. Hanson v. State,
48 Wis. 2d 203,
179 N.W.2d 909.
972.15 Annotation
It is not error for the court to fail to order a presentence investigation, especially when the record contains much information as to the defendant's background and criminal record. State v. Schilz,
50 Wis. 2d 395,
184 N.W.2d 134.
972.15 Annotation
Section 48.78 does not prevent a judge from examining records of the department. Restrictive rules of evidence do not apply to sentencing procedures. Hammill v. State,
52 Wis. 2d 118,
187 N.W.2d 792.
972.15 Annotation
Refusal to accept a recommendation of probation does not amount to an abuse of discretion if the evidence justified a severe sentence. State v. Burgher,
53 Wis. 2d 452,
192 N.W.2d 869.
972.15 Annotation
If a presentence report is used by the trial court it must be part of the record; its absence is not error if the defendant and counsel saw it and had a chance to correct it and if counsel approved the record without moving for its inclusion. Chambers v. State,
54 Wis. 2d 460,
195 N.W.2d 477.
972.15 Annotation
A failure to order and consider a presentence report is not an abuse of discretion. Byas v. State,
55 Wis. 2d 125,
197 N.W.2d 757.
972.15 Annotation
It is error for the sentencing court to consider pre-Gault,
387 U.S. 1, juvenile adjudications where juveniles were denied counsel, even to the extent of showing a pattern of conduct. Stockwell v. State,
59 Wis. 2d 21,
207 N.W.2d 883.
972.15 Annotation
A presentence report, consisting of information concerning the defendant's personality, social circumstances and general pattern of behavior and a section entitled "Agent's Impressions" contained neither biased nor incompetent material as such reports are not limited to evidence that is admissible in court, and the defendant's report, although recommending imposition of a maximum term, contained material both favorable and unfavorable as to defendant's general pattern of behavior. State v. Jackson,
69 Wis. 2d 266,
230 N.W.2d 832.
972.15 Annotation
Consideration by the trial court of a presentence report prior to defendant's plea of guilty in violation of sub. (1), constituted at most harmless error, since the evil the statute is designed to prevent—receipt by the judge of prejudicial information while he is still considering the defendant's guilt or innocence or presiding over a jury trial—cannot arise in the context of a guilty plea, especially when the trial court had already assured itself of the voluntariness of the plea and the factual basis for the crime. Rosado v. State,
70 Wis. 2d 280,
234 N.W.2d 69.
972.15 Annotation
The sentencing judge does not deny due process by considering pending criminal charges in determining a sentence. The scope of judicial inquiry prior to sentencing is discussed. Handel v. State,
74 Wis. 2d 699,
247 N.W.2d 711.
972.15 Annotation
Information gathered in the course of a presentence investigation may not be revealed at a trial following withdrawal of guilty plea. State v. Crowell,
149 Wis. 2d 859,
440 N.W.2d 348 (1989).
972.15 Annotation
Defendants appearing with or without counsel have a due process right to read the presentence investigation report prior to sentencing. State v. Skaff,
152 Wis. 2d 48,
447 N.W.2d 84 (Ct. App. 1989).
972.15 Annotation
A defendant challenging a sentence on due process grounds based upon failure to receive copy of the presentence investigation report is entitled to a hearing only upon a showing that the court had a blanket policy of denial of access and the policy was specifically applied to defendant, or that before sentencing the defendant personally sought access and was denied it. State v. Flores,
158 Wis. 2d 636,
462 N.W.2d 899 (Ct. App. 1990).
972.15 Annotation
A public defender appointed as postconviction counsel is entitled to the presentence investigation report under s. 967.06; access may not be restricted under sub. (4). Oliver v. Goulee,
179 Wis. 2d 376,
507 N.W.2d 145 (Ct. App. 1993).
972.15 Annotation
Although sub. (2s) requires a presentence report to include juvenile adjudications that are less than 3 years old it does not prohibit the inclusion and consideration of adjudications which are more than 3 years old. State v. Crowe,
189 Wis. 2d 72,
525 N.W.2d 291 (Ct. App. 1994).
972.15 Annotation
Sub. (5) does not provide a defendant a means to obtain his or her presentence report. This access is provided by subs. (2) and (4). State ex rel. Hill v. Zimmerman,
196 Wis. 2d 419,
538 N.W.2d 608 (Ct. App. 1995).
972.15 Annotation
The use of presentence reports from the underlying criminal proceeding in a ch. 980 sex offender commitment is not allowed under the sub. (5) provision for use of the reports for care and treatment, but allowing the state's psychologist to use, and allowing the ch. 980 jury to hear, the reports is within the court's discretion under sub. (4). State v. Zanelli,
212 Wis. 2d 358,
569 N.W.2d 301 (Ct. App. 1997).
972.15 Annotation
Having disputed relevant portions of the presentence investigation at the sentencing hearing, it was trial counsel's duty to see that the disputes were fully resolved by a proper hearing. Failure to do so constituted ineffective assistance of counsel. State v. Anderson,
222 Wis. 2d 403,
588 N.W.2d 75 (Ct. App. 1998).
972.15 Annotation
Insuring the accuracy of the presentence investigation report in the Wisconsin correctional system. 1986 WLR 613.
