973.05 Annotation
After the defendant raised the issue of ability to pay a fine in a postconviction motion, a hearing was necessary to avoid an unconstitutional application of the statutes. The court should consider: 1) the financial resources of the defendant and the burden that payment will impose; 2) the ability of the defendant to pay on an installment basis or on other conditions to be fixed by the court; 3) the extent to which payment will interfere with the ability of the defendant to make any ordered restitution or reparation to the victim; and 4) whether there are particular reasons that make a fine appropriate as a deterrent or corrective measure. State v. Kuechler, 2003 WI App 245,
268 Wis. 2d 192,
673 N.W.2d 335,
02-1205.
973.05 Annotation
A court cannot impose probation or order a defendant to perform community work in lieu of imposing a statutorily required minimum jail sentence.
71 Atty. Gen. 41.
973.055
973.055
Domestic abuse surcharges. 973.055(1)
(1) If a court imposes a sentence on an adult person or places an adult person on probation, regardless of whether any fine is imposed, the court shall impose a domestic abuse surcharge under
ch. 814 of $100 for each offense if:
973.055(1)(a)1.1. The court convicts the person of a violation of a crime specified in
s. 940.01,
940.02,
940.03,
940.05,
940.06,
940.19,
940.20 (1m),
940.201,
940.21,
940.225,
940.23,
940.235,
940.285,
940.30,
940.305,
940.31,
940.42,
940.43,
940.44,
940.45,
940.48,
941.20,
941.30,
943.01,
943.011,
943.14,
943.15,
946.49,
947.01,
947.012 or
947.0125 or of a municipal ordinance conforming to
s. 940.201,
941.20,
941.30,
943.01,
943.011,
943.14,
943.15,
946.49,
947.01,
947.012 or
947.0125; and
973.055(1)(a)2.
2. The court finds that the conduct constituting the violation under
subd. 1. involved an act by the adult person against his or her spouse or former spouse, against an adult with whom the adult person resides or formerly resided or against an adult with whom the adult person has created a child; or
973.055(2)(a)(a) If the surcharge is imposed by a court of record, after the court determines the amount due, the clerk of the court shall collect and transmit the amount to the county treasurer as provided in
s. 59.40 (2) (m). The county treasurer shall then make payment to the secretary of administration as provided in
s. 59.25 (3) (f) 2.
973.055(2)(b)
(b) If the surcharge is imposed by a municipal court, after a determination by the court of the amount due, the court shall collect and transmit the amount to the treasurer of the county, city, town, or village, and that treasurer shall make payment to the secretary of administration as provided in
s. 66.0114 (1) (bm).
973.055(3)
(3) All moneys collected from domestic abuse surcharges shall be deposited by the secretary of administration in
s. 20.437 (1) (hh) and utilized in accordance with
s. 49.165.
973.055(4)
(4) A court may waive part or all of the domestic abuse surcharge under this section if it determines that the imposition of the full surcharge would have a negative impact on the offender's family.
973.055 History
History: 1979 c. 111;
1979 c. 221 s.
2202 (20);
1979 c. 355;
1981 c. 20 s.
2202 (20) (s);
1983 a. 27 s.
2202 (20);
1987 a. 27;
1989 a. 31;
1991 a. 39;
1993 a. 262,
319;
1995 a. 27,
201,
343,
353;
1997 a. 27,
35,
143;
1999 a. 150 s.
672;
1999 a. 185;
2001 a. 16;
2003 a. 33,
139,
225,
326,
327;
2007 a. 20,
97,
127.
973.06
973.06
Costs, fees, and surcharges. 973.06(1)
(1) Except as provided in
s. 93.20, the costs, fees, and surcharges taxable against the defendant shall consist of the following items and no others:
973.06(1)(a)
(a) The necessary disbursements and fees of officers allowed by law and incurred in connection with the arrest, preliminary examination and trial of the defendant, including, in the discretion of the court, the fees and disbursements of the agent appointed to return a defendant from another state or country.
973.06(1)(am)
(am) Moneys expended by a law enforcement agency under all of the following conditions:
973.06(1)(am)1.
1. The agency expended the moneys to purchase a controlled substance or controlled substance analog that was distributed in violation of
ch. 961.
973.06(1)(am)2.
2. The moneys were expended in the course of an investigation that resulted in the defendant's conviction.
973.06(1)(am)3.
3. The moneys were used to obtain evidence of the defendant's violation of the law.
973.06(1)(am)4.
4. The agency has not previously been reimbursed or repaid for the expended moneys by the defendant.
973.06(1)(ar)
(ar) If the defendant violated
s. 947.017, the moneys expended by a state or local government agency for the following activities in connection with a threat under
s. 947.017 (2):
973.06(1)(ar)3.
3. The medical treatment of persons who are alleged to have been exposed to an alleged harmful substance, as defined in
s. 947.017 (1).
973.06(1)(b)
(b) Fees and travel allowance of witnesses for the state at the preliminary examination and the trial.
973.06(1)(c)
(c) Fees and disbursements allowed by the court to expert witnesses.
Section 814.04 (2) shall not apply in criminal cases.
973.06(1)(d)
(d) Fees and travel allowance of witnesses for the defense incurred by the county at the request of the defendant, at the preliminary hearing and the trial.
973.06(1)(e)
(e) Attorney fees payable to the defense attorney by the county or the state. If the court determines at the time of sentencing that the defendant's financial circumstances are changed, the court may adjust the amount in accordance with
s. 977.07 (1) (a) and rules promulgated under
s. 977.02 (3).
Effective date note
NOTE: Par. (e) is shown as amended eff. 6-19-11 by
2009 Wis. Act 164. Prior to 6-19-11 it reads:
Effective date text
(e) Attorney fees payable to the defense attorney by the county or the state. If the court determines at the time of sentencing that the defendant's financial circumstances are changed, the court may adjust the amount in accordance with s. 977.07 (1) (a) and (2).
973.06(1)(g)
(g) An amount equal to 10% of any restitution ordered under
s. 973.20, payable to the county treasurer for use by the county.
973.06(1)(h)
(h) The cost of performance of a test under
s. 968.38, if ordered by the court.
973.06(2)
(2) The court may remit the taxable costs, in whole or in part.
973.06(3)
(3) If the court orders payment of restitution, collection of costs shall be as provided under
s. 973.20.
973.06 History
History: Sup. Ct. Order,
67 Wis. 2d 585, 784 (1975);
1979 c. 356;
1981 c. 352;
1985 a. 29;
1987 a. 347,
398,
403;
1991 a. 39,
269;
1995 a. 27,
53,
448;
1999 a. 58,
69,
186;
2003 a. 104,
139;
2007 a. 84;
2009 a. 164.
973.06 Annotation
An accused who cancels a jury trial at the last moment to accept a plea bargain risks both taxation of costs under s. 973.06 and assessment of jury fees under s. 814.51. State v. Foster,
100 Wis. 2d 103,
301 N.W.2d 192 (1981).
973.06 Annotation
A court may not order reimbursement of a law enforcement agency for routine investigative activities. State v. Peterson,
163 Wis. 2d 800,
472 N.W.2d 571 (Ct. App. 1991).
973.06 Annotation
Contribution under sub. (1) (e) toward a defendant's attorney fees payable by the county may not be taxed in an order separate from the sentence. State v. Grant,
168 Wis. 2d 682,
484 N.W.2d 371 (Ct. App. 1992).
973.06 Annotation
Sub. (1) (c) does not limit recovery of expert witness fees to fees for court appointed witnesses. State v. Schmaling,
198 Wis. 2d 757,
543 N.W.2d 555 (Ct. App. 1995).
973.06 Annotation
A court was authorized to order that a defendant pay the cost of DNA testing by a private laboratory as a cost under this section. State v. Beiersdorf,
208 Wis. 2d 492,
561 N.W.2d 749 (Ct. App. 1997),
95-1234.
973.06 Annotation
Expenses incurred by a sheriff's department in transporting a witness from a Florida corrections facility to testify at the defendant's trial were chargeable to the defendant under s. 973.06 (1) (a). State v. Bender,
213 Wis. 2d 338,
570 N.W.2d 590 (Ct. App. 1997),
97-1095.
973.06 Annotation
A crime prevention organization under sub. (1) (f) is an organization designed to encourage the public to report incidences of crime to law enforcement agencies and to assist those agencies in apprehending criminals. It does not include law enforcement agencies. State v. Bizzle,
222 Wis. 2d 100,
585 N.W.2d 899 (Ct. App. 1998),
97-2616.
973.06 Annotation
Sub. (1) (c) authorized the taxation of the costs of an expert's medical examination when the development of that evidence was used in the prosecution of the defendant although the examination was not done in contemplation of trial and the expert witness did not testify. State v. Rohe,
230 Wis. 2d 294,
602 N.W.2d 125 (Ct. App. 1999),
99-0233.
973.06 Annotation
"Disbursements and fees" are given the same meaning in sub. (1) (a) and (c). Whether the expenses associated with orders to produce a defendant are taxable "fees of officers" under sub. (1) (a) depends upon whether they are ordinarily charged to and payable by another or are merely internal operating expenses of a governmental unit. State v. Dismuke, 2001 WI 75,
244 Wis. 2d 457,
628 N.W.2d 791,
99-1734.
973.06 Annotation
The trial court has inherent authority to assess the cost of impaneling a jury against a party. The purpose of imposing jury costs is to deter disruptive practices that contribute to inefficiency in the court system. The trial court is not limited to imposing costs on parties, but may sanction an attorney whose conduct negligently disrupts the court's orderly administration of justice. O'Neil v. Monroe County Circuit Court, 2003 WI App 149,
266 Wis. 2d 155,
667 N.W.2d 774,
02-2866.
973.06 Annotation
When a defendant agrees to reimburse the county for the attorney fees of standby counsel or the circuit court informs the defendant of his or her potential liability for the fees and standby counsel functions as traditional defense counsel, ss. 973.06 (1) (e) and 973.09 (1g) give a circuit court the authority to impose the attorney fees of standby counsel as a condition of probation. If a defendant does not agree to reimburse the county or is not informed of the potential obligation to pay the fees of standby counsel, payment of attorney fees may not be a condition of probation, under s. 973.06 (1) (e). When standby counsel acts primarily for the benefit of the court rather than as defense counsel, attorney fees for standby counsel are inappropriate. State v. Campbell, 2006 WI 99,
294 Wis. 2d 100,
718 N.W.2d 649,
04-0803.
973.06 Annotation
The obligation of a defendant under this section is not dischargeable in bankruptcy. Matter of Zarzynski,
771 F.2d 304 (1985).
973.06 Annotation
Right to counsel; repayment of cost of court-appointed counsel as a condition of probation. 56 MLR 551.
973.07
973.07
Failure to pay fine, fees, surcharges, or costs or to comply with certain community service work. If the fine, plus costs, fees, and surcharges imposed under
ch. 814, are not paid or community service work under
s. 943.017 (3) is not completed as required by the sentence, the defendant may be committed to the county jail until the fine, costs, fees, and surcharges are paid or discharged, or the community service work under
s. 943.017 (3) is completed, for a period fixed by the court not to exceed 6 months.
973.07 Annotation
Sections 973.05 (1), permitting a delay of 60 days for payment of a fine, and s. 973.07, allowing commitment to jail for nonpayment, are constitutional since the court may stay the sentence and put defendant on probation. The burden of proving inability to pay is on the defendant. State ex rel. Pedersen v. Blessinger,
56 Wis. 2d 286,
201 N.W.2d 778 (1972).
973.07 Annotation
When a fine and payment schedule are reasonably suited to an offender's means, the offender carries a heavy burden of showing inability to pay. Will v. State,
84 Wis. 2d 397,
267 N.W.2d 357 (1978).
973.07 Annotation
Commitment under this section may be consecutive to another term of incarceration. State v. Way,
113 Wis. 2d 82,
334 N.W.2d 918 (Ct. App. 1983).
973.07 Annotation
The 6- month limit on commitments under this section is the aggregate amount of time a defendant may be jailed for nonpayment of a fine. State v. Schuman,
173 Wis. 2d 743,
496 N.W.2d 684 (Ct. App. 1993).
973.07 Annotation
Incarceration as a means of collecting a fine is limited to 6 months by this section. It was error for a court to make payment of an old, unpaid fine a condition of probation for a new conviction when violation of probation exposed the defendant to incarceration of more than 6 months. State v. Oakley, 2000 WI 37,
234 Wis. 2d 528,
609 N.W.2d 786,
98-1099.
973.07 Annotation
In the case of an order for commitment for failure to pay attorney fees, in order to be constitutional this section must require a finding of ability to pay prior to any commitment. The defendant must be given notice and an opportunity to be heard. State v. Helsper, 2006 WI App 243,
297 Wis. 2d 377,
724 N.W.2d 414,
06-0835.
973.075
973.075
Forfeiture of property derived from crime and certain vehicles. 973.075(1)(a)
(a) All property, real or personal, including money, directly or indirectly derived from or realized through the commission of any crime.
973.075(1)(b)1m.a.
a. To transport any property or weapon used or to be used or received in the commission of any felony.
973.075(1)(b)1m.d.
d. In the commission of a crime relating to a submerged cultural resource in violation of
s. 44.47.
973.075(1)(b)2m.a.a. No vehicle used by any person as a common carrier in the transaction of business as a common carrier is subject to forfeiture under
ss. 973.075 to
973.077 unless it appears that the owner or other person in charge of the vehicle had knowledge of or consented to the commission of the crime.
973.075(1)(b)2m.b.
b. No vehicle is subject to forfeiture under
ss. 973.075 to
973.077 by reason of any act or omission established by the owner of the vehicle to have been committed or omitted without his or her knowledge or consent.
973.075(1)(b)2m.c.
c. If forfeiture of a vehicle encumbered by a bona fide perfected security interest occurs, the holder of the security interest shall be paid from the proceeds of the forfeiture if the security interest was perfected prior to the date of the commission of the crime which forms the basis for the forfeiture and he or she neither had knowledge of nor consented to the act or omission.
973.075(1)(bg)
(bg) Any property used or to be used in the commission of a crime under
s. 943.75 (2) or
(2m), but if the property is encumbered by a bona fide perfected security interest that was perfected before the date of the commission of the current violation and the holder of the security interest neither had knowledge of nor consented to the commission of that violation, the holder of the security interest shall be paid from the proceeds of the forfeiture.
973.075(1)(bj)
(bj) Any property used or to be used in the commission of a crime under
s. 943.74, but if the property is encumbered by a bona fide perfected security interest that was perfected before the date of the commission of the current violation and the holder of the security interest neither had knowledge of nor consented to the commission of that violation, the holder of the security interest shall be paid from the proceeds of the forfeiture.
973.075(1)(bm)
(bm) Any property used in the commission of a crime under
s. 813.12 (8),
813.122 (11),
813.123 (10),
813.125 (7),
813.128 (2) or
940.32, but if the property is encumbered by a bonafide perfected security interest that was perfected before the date of the commission of the current violation and the holder of the security interest neither had knowledge of nor consented to the commission of that violation, the holder of the security interest shall be paid from the proceeds of the forfeiture.
973.075(1)(c)
(c) All remote sensing equipment, navigational devices, survey equipment and scuba gear and any other equipment or device used in the commission of a crime relating to a submerged cultural resource in violation of
s. 44.47.
973.075(1)(d)
(d) A tank vessel that violates
s. 299.62 (2) that is owned by a person who, within 5 years before the commission of the current violation, was previously convicted of violating
s. 299.62 (2), but if the tank vessel is encumbered by a bona fide perfected security interest that was perfected before the date of the commission of the current violation and the holder of the security interest neither had knowledge of nor consented to the commission of that violation, the holder of the security interest shall be paid from the proceeds of the forfeiture.
973.075(1)(e)
(e) Any recording, as defined in
s. 943.206 (5), created, advertised, offered for sale or rent, sold, rented, transported or possessed in violation of
ss. 943.207 to
943.209 or
s. 943.49 and any electronic, mechanical or other device for making a recording or for manufacturing, reproducing, packaging or assembling a recording that was used to facilitate a violation of
ss. 943.207 to
943.209 or
s. 943.49, regardless of the knowledge or intent of the person from whom the recording or device is seized. If a device subject to forfeiture under this paragraph is encumbered by a bona fide perfected security interest that was perfected before the date of the commission of the current violation and the holder of the security interest neither had knowledge of nor consented to the commission of that violation, the holder of the security interest shall be paid from the proceeds of the forfeiture.
973.075(2)
(2) A law enforcement officer may seize property subject to this section upon process issued by any court of record having jurisdiction over the property. Except for vehicles used in the commission of a crime in violation of
s. 944.30,
944.31,
944.32,
944.33 or
944.34, seizure without process may be made under any of the following circumstances:
973.075(2)(a)
(a) The seizure is incident to an arrest or a search under a search warrant or an inspection under any administrative or special inspection warrant.
973.075(2)(b)
(b) The property subject to seizure has been the subject of a prior judgment in favor of the state.
973.075(2)(c)
(c) The officer has probable cause to believe that the property is directly or indirectly dangerous to health or safety.
973.075(2)(d)
(d) The officer has probable cause to believe that the property was derived from or realized through a crime or that the property is a vehicle which was used to transport any property or weapon used or to be used or received in the commission of any felony, which was used in the commission of a crime relating to a submerged cultural resource in violation of
s. 44.47, or which was used to cause more than $2,500 worth of criminal damage to cemetery property in violation of
s. 943.01 (2) (d) or
943.012.
973.075(3)
(3) If there is a seizure under
sub. (2) or
s. 342.30 (4) (a), proceedings under
s. 973.076 shall be instituted. Property seized under this section or
s. 342.30 (4) (a) is not subject to replevin, but is deemed to be in the custody of the sheriff of the county in which the seizure was made subject only to the orders and decrees of the court having jurisdiction over the forfeiture proceedings. When property is seized under this section or
s. 342.30 (4) (a), the person seizing the property may do any of the following:
973.075(3)(b)
(b) Remove the property to a place designated by it.
