973.155 Annotation
Credit under this section is given on a day-to-day basis, which is not to be duplicatively credited to more than one consecutive sentence. State v. Boettcher,
144 Wis. 2d 86,
423 N.W.2d 533 (1988).
973.155 Annotation
A defendant is entitled to credit against a sentence for the period during which he was denied admission to a county jail due to overcrowding; however, the defendant is not entitled to credit for time as of the date he was to have reported to jail to serve the sentence. State v. Riske,
152 Wis. 2d 260,
448 N.W.2d 260 (Ct. App. 1989).
973.155 Annotation
Pre-sentence credit must be applied to each of the concurrent terms to which the defendant is sentenced. State v. Ward,
153 Wis. 2d 743,
452 N.W.2d 158 (Ct. App. 1989).
973.155 Annotation
Out of state presentence confinement while the defendant was on parole from Wisconsin may not be credited against subsequent reconfinement in Wisconsin for a parole violation. State v. Rohl,
160 Wis. 2d 325,
466 N.W.2d 208 (Ct. App. 1991).
973.155 Annotation
When a waiver of juvenile jurisdiction is granted, secure juvenile detention time is eligible for credit consideration under this section as if it were jail time, retroactive to the date of the filing of the juvenile petition. State v. Baker,
179 Wis. 2d 655,
508 N.W.2d 40 (Ct. App. 1993).
973.155 Annotation
The definition of "custody" in s. 946.42 (1) (a) is used to determine whether a person is in custody for sentence credit purposes. State v. Sevelin,
204 Wis. 2d 127,
554 N.W.2d 521 (Ct. App. 1996).
973.155 Annotation
A person confined on a probation revocation or change in intensive sanctions due to an arrest for a subsequent crime is not entitled to credit under sub. (1) against the sentence for the subsequent crime although the confinement was triggered by the subsequent crime. State v. Abbott,
207 Wis. 2d 621,
558 N.W.2d 927 (Ct. App. 1996).
973.155 Annotation
Sub. (1) (a) provides sentence credit only for custody connected to the charges to which the custody resulted from. Time served as the result of a bail jumping charge was not credited against a sentence for sexual assault although the bail condition violated was in the sexual assault case. State v. Beiersdorf,
208 Wis. 2d 492,
561 N.W.2d 749 (Ct. App. 1997).
973.155 Annotation
When a defendant is unable to satisfy cash-bail requirements on 2 or more unrelated charges, the defendant is entitled to sentence credit on both charges. However if the defendant is committed following a finding of not guilty by reason of mental defect on one charge, there will be no sentence credit from the commitment against a sentence upon conviction on another of the charges as the confinement after the commitment is solely the result of the commitment. State v. Harr,
211 Wis. 2d 584,
568 N.W.2d 307 (Ct. App. 1997).
973.155 Annotation
An 18-year old on juvenile aftercare parole who was returned to juvenile detention because the parole was revoked pending sentencing after pleading guilty to an adult crime was eligible for sentence credit for the time spent in juvenile detention prior to sentencing. State v. Thompson,
225 Wis. 2d 578,
593 N.W.2d 875 (Ct. App. 1999).
973.155 Annotation
When a sentence has been withheld and probation imposed, sub. (2) gives the court exclusive authority to determine sentence credit in imposing a postprobation sentence. A person subject to electronic monitoring, but not locked in the home at night, was not in custody and not entitled to sentence credit. State v. Olson, 226 Wis.2d 457,
595 N.W.2d 460 (Ct. App. 1999).
973.155 Annotation
"(C)ourse of conduct" in sub. (1) (a) means the specific act for which the defendant is sentenced. As such a defendant was not entitled to sentence credit on a later imposed sentence for time already served on sentences arising from the same criminal episode, but different criminal acts. State v. Tuescher,
226 Wis. 2d 465,
595 N.W.2d 443 (Ct. App. 1999).
973.155 Annotation
Pretrial confinement on a dismissed charge that is read in at sentencing relates to an offense for which the offender is ultimately sentenced, entitling the offender to sentence credit. State v. Floyd, 2000 WI 14,
232 Wis. 2d 767,
606 N.W.2d 155.
973.155 Annotation
For sentence credit purposes, an offender's status constitutes custody whenever the offender is subject to an escape charge for leaving that status. State v. Magnuson, 2000 WI 19,
233 Wis. 2d 40,
606 N.W.2d 536.
973.155 Annotation
Boettcher bars a claim for dual credit when the defendant has already received the same credit against a prior sentence that the defendant has already served. State v. Jackson, 2000 WI App 41,
233 Wis. 2d 231,
607 N.W.2d 338.
973.155 AnnotationDepartment may not grant jail credit where it is not provided for by statute.
71 Atty. Gen. 102.
973.155 Annotation
Sentence Credit: More Than Just Math. White. Wis. Law. Oct. 1991.
973.16
973.16
Time out. If an order or judgment releasing a prisoner on habeas corpus is reversed, the time during which the prisoner was at liberty thereunder shall not be counted as part of the prisoner's term.
973.16 History
History: 1993 a. 486.
973.17
973.17
Judgment against a corporation or limited liability company. 973.17(1)(1) If a corporation or limited liability company fails to appear within the time required by the summons, the default of such corporation or limited liability company may be recorded and the charge against it taken as true, and judgment shall be rendered accordingly.
973.17(2)
(2) Upon default of the defendant corporation or limited liability company or upon conviction, judgment for the amount of the fine shall be entered.
973.17(3)
(3) A judgment against a corporation or limited liability company shall be collected in the same manner as in civil actions.
973.17 History
History: 1993 a. 112.
973.18
973.18
Notice of rights to appeal and representation. 973.18(1)(1) In this section, "postconviction relief" and "sentencing" have the meanings ascribed in
s. 809.30 (1).
973.18(2)
(2) The trial judge shall personally inform the defendant at the time of sentencing of the right to seek postconviction relief and, if indigent, the right to the assistance of the state public defender.
973.18(3)
(3) Before adjourning the sentencing proceeding, the judge shall direct the defendant and defendant's trial counsel to sign a form to be entered in the record, indicating that the lawyer has counseled the defendant regarding the decision to seek postconviction relief, and that the defendant understands that a notice of intent to pursue postconviction relief must be filed in the trial court within 20 days after sentencing for that right to be preserved.
973.18(4)
(4) The judge shall direct the defendant's counsel to confer with the defendant before signing the form, during the proceeding or as soon thereafter as practicable, and may make appropriate orders to allow the defendant to confer with counsel before being transferred to the state prison. The defendant shall be given a copy of the form.
973.18(5)
(5) If the defendant desires to pursue postconviction relief, the defendant's trial counsel shall file the notice required by
s. 809.30 (2) (b).
973.18 History
History: Sup. Ct. Order, 123 Wis. 2d xi (1985).
973.18 Note
Judicial Council Note, 1984: Sub. (2) is similar to prior s. 809.30 (1) (b). Subs. (3) and (4) codify State v. Argiz,
101 Wis. 2d 546,
305 N.W. 2d 124 (1981). Sub. (5) codifies trial counsel's continuing duty to provide representation until appellate counsel is retained or appointed. Whitmore v. State,
56 Wis. 2d 706, 203 NW 2d 56 (1973). [Re order effective July 1, 1985]
973.19
973.19
Motion to modify sentence. 973.19(1)(a)(a) A person sentenced to imprisonment or the intensive sanctions program or ordered to pay a fine who has not requested the preparation of transcripts under
s. 809.30 (2) may, within 90 days after the sentence or order is entered, move the court to modify the sentence or the amount of the fine.
973.19(2)
(2) Within 90 days after a motion under
sub. (1) (a) is filed, the court shall enter an order either determining the motion or extending the time for doing so by not more than 90 days for cause.
973.19(3)
(3) If an order determining a motion under
sub. (1) (a) is not entered timely under
sub. (2), the motion shall be considered denied and the clerk of the court shall immediately enter an order denying the motion.
973.19(4)
(4) An appeal from an order determining a motion under
sub. (1) (a) is governed by the procedure for civil appeals.
973.19(5)
(5) By filing a motion under
sub. (1) (a) the defendant waives his or her right to file an appeal or postconviction motion under
s. 809.30 (2).
973.19 History
History: Sup. Ct. Order, 123 Wis. 2d xiv (1985);
1991 a. 39.
973.19 Note
Judicial Council Note, 1984: This section is intended as an expeditious alternative to the procedure prescribed in s. 809.30 (2) when the only claim for postconviction relief relates to the severity of the sentence. It is not intended to alter the substantive grounds for such relief and it restores the time limits governing such motions prior to the 1978 revision of the appellate rules.
973.19 Annotation
This section will probably be most frequently used in guilty plea cases, although it is not limited to such cases. However, if the defendant intends to withdraw a guilty plea or file other postconviction motions, s. 809.30 (2) or 974.06 provides the appropriate procedure. Motions under this section should usually be filed by trial counsel without the need for transcripts or for appointment of an appellate public defender. A defendant must elect between the remedies provided by this section and s. 809.30 (2). Filing a motion under this section waives relief under s. 809.30 (2). However, a defendant who has filed a notice of intent to pursue postconviction relief under s. 809.30 (2) (b) may invoke this remedy at any time before transcripts are ordered under s. 809.30 (2). If transcripts are required for prosecution of a motion under sub. (1) (a), they should be sought under
SCR 71.03 (2).
973.19 Annotation
Sub. (4) does not expand the scope of appellate review. [Re Order effective July 1, 1985.]
973.19 Annotation
There are two alternative means to seek modification of a sentence; proceeding under (1) (a) or (b). Under either, a motion must be first made in the trial court. State v. Norwood,
161 Wis. 2d 676,
468 N.W.2d 741 (Ct. App. 1991).
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 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. 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) 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)(a)
(a) Return the property to the owner or owner's designee; or
973.20(2)(b)
(b) If return of the property under
par. (a) 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)(b)1.
1. The value of the property on the date of its damage, loss or destruction; or
973.20(2)(b)2.
2. 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(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,
948.06,
948.07 or
948.08 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(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)(a)(a) If a crime victim is paid an award under
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
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
ch. 949, the restitution shall be paid only to the general fund. If the restitution ordered is greater than the award under
ch. 949, the general fund shall receive an amount equal to the award under
ch. 949 and the balance shall be paid to the victim.
973.20(10)
(10) The court may require that restitution be paid immediately, within a specified period or in specified instalments. 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(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 require the defendant to pay a surcharge equal to 5% of the total amount of any restitution, costs and attorney fees and any fines and related payments ordered under
s. 973.05 (1) to the department or 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(12)(a)(a) If the court orders restitution in addition to the payment of fines, related payments under
s. 973.05 and costs under
s. 973.06, it shall set the amount of fines, related payments and costs in conjunction with the amount of restitution and issue a single order, signed by the judge, covering all of the payments. If the costs for legal representation by a private attorney appointed under
s. 977.08 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 related payments under
s. 973.05, then to pay costs 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)(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)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.
