972.11 Annotation The trial court erred when it essentially held that for evidence of the past sexual conduct between the defendant and victim to be admissible, it must be of the same type and nature that is charged as a crime. Neither the language of sub. (2) (b), nor relevant case law, require that the prior sexual conduct between the accuser and the accused be the same as that alleged in a criminal case. State v. Sarfraz, 2013 WI App 57, 348 Wis. 2d 57, 832 N.W.2d 346, 12-0337.
972.11 Annotation Under sub. (2) (b) 1. and s. 971.31 (11), evidence of the complainant's alleged past sexual conduct with the defendant is admissible only if the defendant makes a 3-part showing that: 1) the proffered evidence relates to sexual activities between the complainant and the defendant; 2) the evidence is material to a fact at issue; and 3) the evidence of sexual contact with the complainant is of sufficient probative value to outweigh its inflammatory and prejudicial nature. In determining that evidence of prior sexual conduct has a highly prejudicial effect, the legislature crafted into the rape shield law a balancing test that assumes, absent an evidentiary showing to the contrary, that the proffered evidence is more prejudicial than probative. State v. Sarfraz, 2014 WI 78, 356 Wis. 2d 460, 851 N.W.2d 235, 12-0337.
972.11 Annotation The exceptions to this section do not require proffered evidence of past sexual conduct between the accuser and the defendant to be the same as the criminal conduct alleged against the defendant. State v. Sarfraz, 2014 WI 78, 356 Wis. 2d 460, 851 N.W.2d 235, 12-0337.
972.11 Annotation Sub. (1) points in 2 different directions. The rules of civil procedure are applicable generally to criminal proceedings and the application of the rules of civil procedure mandates reasonable diligence for substituted service of a subpoena. On the other hand, ch. 885 is to apply in all criminal proceedings and s. 885.03 sets forth 3 manners for service of a subpoena that do not include the reasonable diligence mandate. Because sub. (1) explicitly references it, ch. 885 is the more specific textual provision. Thus, service of a witness subpoena in a criminal proceeding is controlled by s. 885.03, which provides only that “any subpoena may be served by any person by exhibiting and reading it to the witness, or by giving the witness a copy thereof, or by leaving such copy at the witness's abode." State v. Wilson, 2017 WI 63, 376 Wis. 2d 92, 896 N.W.2d 682, 15-0671.
972.11 Annotation This section protects complaining witnesses in sexual assault cases from being questioned about sexual conduct, but a false charge of sexual assault is not sexual conduct. Redmond v. Kingston, 240 F.3d 590 (2001).
972.11 Annotation Prior Untruthful Allegations Under Wisconsin's Rape Shield Law: Will Those Words Come Back to Haunt You? Berry. 2002 WLR 1237.
972.115 972.115 Admissibility of defendant's statement.
972.115(1)(1)In this section:
972.115(1)(a) (a) “Custodial interrogation“ has the meaning given in s. 968.073 (1) (a).
972.115(1)(b) (b) “Law enforcement agency" has the meaning given in s. 165.83 (1) (b).
972.115(1)(c) (c) “Law enforcement officer" has the meaning given in s. 165.85 (2) (c).
972.115(1)(d) (d) “Statement" means an oral, written, sign language, or nonverbal communication.
972.115(2) (2)
972.115(2)(a)(a) If a statement made by a defendant during a custodial interrogation is admitted into evidence in a trial for a felony before a jury and if an audio or audio and visual recording of the interrogation is not available, upon a request made by the defendant as provided in s. 972.10 (5) and unless the state asserts and the court finds that one of the following conditions applies or that good cause exists for not providing an instruction, the court shall instruct the jury that it is the policy of this state to make an audio or audio and visual recording of a custodial interrogation of a person suspected of committing a felony and that the jury may consider the absence of an audio or audio and visual recording of the interrogation in evaluating the evidence relating to the interrogation and the statement in the case:
972.115(2)(a)1. 1. The person refused to respond or cooperate in the interrogation if an audio or audio and visual recording was made of the interrogation so long as a law enforcement officer or agent of a law enforcement agency made a contemporaneous audio or audio and visual recording or written record of the subject's refusal.
972.115(2)(a)2. 2. The statement was made in response to a question asked as part of the routine processing of the person.
972.115(2)(a)3. 3. The law enforcement officer or agent of a law enforcement agency conducting the interrogation in good faith failed to make an audio or audio and visual recording of the interrogation because the recording equipment did not function, the officer or agent inadvertently failed to operate the equipment properly, or, without the officer's or agent's knowledge, the equipment malfunctioned or stopped operating.
972.115(2)(a)4. 4. The statement was made spontaneously and not in response to a question by a law enforcement officer or agent of a law enforcement agency.
972.115(2)(a)5. 5. Exigent public safety circumstances existed that prevented the making of an audio or audio and visual recording or rendered the making of such a recording infeasible.
972.115(2)(a)6. 6. The law enforcement officer conducting the interrogation or the law enforcement officer responsible for observing an interrogation conducted by an agent of a law enforcement agency reasonably believed at the commencement of the interrogation that the offense for which the person was taken into custody or for which the person was being investigated, was not a felony.
972.115(2)(b) (b) If a statement made by a defendant during a custodial interrogation is admitted into evidence in a proceeding heard by the court without a jury in a felony case and if an audio or audio and visual recording of the interrogation is not available, the court may consider the absence of an audio or audio and visual recording of the interrogation in evaluating the evidence relating to the interrogation and the statement unless the court determines that one of the conditions under par. (a) 1. to 6. applies.
972.115(4) (4)Notwithstanding ss. 968.28 to 968.37, a defendant's lack of consent to having an audio or audio and visual recording made of a custodial interrogation does not affect the admissibility in evidence of an audio or audio and visual recording of a statement made by the defendant during the interrogation.
972.115(5) (5)An audio or audio and visual recording of a custodial interrogation shall not be open to public inspection under ss. 19.31 to 19.39 before one of the following occurs:
972.115(5)(a) (a) The person interrogated is convicted or acquitted of an offense that is a subject of the interrogation.
972.115(5)(b) (b) All criminal investigations and prosecutions to which the interrogation relates are concluded.
972.115 History History: 2005 a. 60.
972.115 Annotation Instituting Innocence Reform: Wisconsin's New Government Experiment. Kruse. 2006 WLR 645.
972.12 972.12 Sequestration of jurors. The court may direct that the jurors sworn be kept together or be permitted to separate. The court may appoint an officer of the court to keep the jurors together and to prevent communication between the jurors and others.
972.12 History History: 1987 a. 73; 1991 a. 39.
972.13 972.13 Judgment.
972.13(1)(1)A judgment of conviction shall be entered upon a verdict of guilty by the jury, a finding of guilty by the court in cases where a jury is waived, or a plea of guilty or no contest.
972.13(2) (2)Except in cases where ch. 975 is applicable, upon a judgment of conviction the court shall proceed under ch. 973. The court may adjourn the case from time to time for the purpose of pronouncing sentence.
972.13(3) (3)A judgment of conviction shall set forth the plea, the verdict or finding, the adjudication and sentence, and a finding as to the specific number of days for which sentence credit is to be granted under s. 973.155. If the defendant is acquitted, judgment shall be entered accordingly.
972.13(4) (4)Judgments shall be in writing and signed by the judge or clerk.
972.13(5) (5)A copy of the judgment shall constitute authority for the sheriff to execute the sentence.
972.13(6) (6)The following forms may be used for judgments:
STATE OF WISCONSIN
.... County
In .... Court
The State of Wisconsin
vs.
.... (Name of defendant)
UPON ALL THE FILES, RECORDS AND PROCEEDINGS,
IT IS ADJUDGED That the defendant has been convicted upon the defendant's plea of guilty (not guilty and a verdict of guilty) (not guilty and a finding of guilty) (no contest) on the .... day of ...., .... (year), of the crime of .... in violation of s. ....; and the court having asked the defendant whether the defendant has anything to state why sentence should not be pronounced, and no sufficient grounds to the contrary being shown or appearing to the court.
*IT IS ADJUDGED That the defendant is guilty as convicted.
*IT IS ADJUDGED That the defendant is hereby committed to the Wisconsin state prisons (county jail of .... county) for an indeterminate term of not more than .....
*IT IS ADJUDGED That the defendant is ordered to serve a bifurcated sentence consisting of .... year(s) of confinement in prison and .... months/years of extended supervision.
*IT IS ADJUDGED That the defendant is placed in the intensive sanctions program subject to the limitations of section 973.032 (3) of the Wisconsin Statutes and the following conditions: ....
*IT IS ADJUDGED That the defendant is hereby committed to detention in (the defendant's place of residence or place designated by judge) for a term of not more than ....
*IT IS ADJUDGED That the defendant is placed on lifetime supervision by the department of corrections under section 939.615 of the Wisconsin Statutes.
*IT IS ADJUDGED That the defendant is ordered to pay a fine of $.... (and the costs of this action).
*IT IS ADJUDGED That the defendant pay restitution to ....
*IT IS ADJUDGED That the defendant is restricted in his or her use of computers as follows: ....
*The .... at .... is designated as the Reception Center to which the defendant shall be delivered by the sheriff.
*IT IS ORDERED That the clerk deliver a duplicate original of this judgment to the sheriff who shall forthwith execute the same and deliver it to the warden.
Dated this .... day of ...., .... (year)
BY THE COURT ....
Date of Offense ....,
District Attorney ....,
Defense Attorney ....
*Strike inapplicable paragraphs.
STATE OF WISCONSIN
.... County
In .... Court
The State of Wisconsin
vs.
.... (Name of defendant)
On the .... day of ...., .... (year), the district attorney appeared for the state and the defendant appeared in person and by .... the defendant's attorney.
UPON ALL THE FILES, RECORDS AND PROCEEDINGS
IT IS ADJUDGED That the defendant has been found not guilty by the verdict of the jury (by the court) and is therefore ordered discharged forthwith.
Dated this .... day of ...., .... (year)
BY THE COURT ....
972.13(7) (7)The department shall prescribe and furnish forms to the clerk of each county for use as judgments in cases where a defendant is placed on probation or committed to the custody of the department pursuant to chs. 967 to 979.
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 (1972).
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 (1973).
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 a 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 a 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 a 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), 95-3458.
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), 96-3615.
972.13 Annotation No statute authorizes a clerk of court's office to correct a clerical error in the sentence portion of a judgment of conviction. The circuit court, and not the clerk's office, must determine the merits of a request for a change in the sentence portion of a written judgment because of an alleged clerical error. State v. Prihoda, 2000 WI 123, 239 Wis. 2d 244, 618 N.W.2d 857, 98-2263.
972.13 Annotation Under sub. (1) a judgment of conviction may not be entered if there is no guilty verdict, guilty finding, or guilty or no contest plea. Sub. (1) does not mandate entry of judgment immediately following the verdict, finding, or plea. State v. Wollenberg, 2004 WI App 20, 268 Wis. 2d 810, 674 N.W.2d 916, 03-1706.
972.14 972.14 Statements before sentencing.
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2017-18 Wisconsin Statutes updated through 2019 Wis. Act 18 and through all Supreme Court and Controlled Substances Board Orders filed before and in effect on October 1, 2019. Published and certified under s. 35.18. Changes effective after October 1, 2019, are designated by NOTES. (Published 10-1-19)