The seizure is incident to an arrest or a search under a search warrant or an inspection under any administrative or special inspection warrant.
The property subject to seizure has been the subject of a prior judgment in favor of the state.
The officer has probable cause to believe that the property is directly or indirectly dangerous to health or safety.
The officer has probable cause to believe that the property was derived from or realized through a crime, or was used in a crime under s. 948.07
, 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
, which was used in the commission of a crime under s. 948.07
, 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)
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:
Remove the property to a place designated by it.
Require the sheriff of the county in which the seizure was made to take custody of the property and remove it to an appropriate location for disposition in accordance with law.
When property is forfeited under ss. 973.075
, the agency seizing the property may sell the property that is not required by law to be destroyed or transferred to another agency. The agency may retain any vehicle for official use or sell the vehicle. The agency seizing the property may deduct 50 percent of the amount received for administrative expenses of seizure, maintenance of custody, advertising and court costs and the costs of investigation and prosecution reasonably incurred. The remainder shall be deposited in the school fund as the proceeds of the forfeiture. If the property forfeited under ss. 973.075
is money, all the money shall be deposited in the school fund.
All forfeitures under ss. 973.075
shall be made with due provision for the rights of innocent persons under sub. (1) (b) 2m.
. Except as provided in sub. (5m)
, any property seized but not forfeited shall be returned to its rightful owner. Any person claiming the right to possession of property seized may apply for its return to the circuit court for the county in which the property was seized. The court shall order such notice as it deems adequate to be given the district attorney and all persons who have or may have an interest in the property and shall hold a hearing to hear all claims to its true ownership. If the right to possession is proved to the court's satisfaction, it shall order the property returned as soon as practically possible if:
The property is not needed as evidence or, if needed, satisfactory arrangements can be made for its return for subsequent use as evidence; or
All proceedings in which it might be required have been completed.
“Forfeiture action deadline" means the 30th day after the seizure of the property or, if the property was seized as a result of a criminal conviction, the 30th day after the date of the conviction.
“Prosecutor" means the district attorney or, in counties having a population of 500,000 or more, the district attorney or the corporation counsel.
“Victim" means the owner, as defined in s. 943.206 (2)
, of the sounds in a recording described in sub. (1) (e)
or, if the recording is seized in connection with an investigation or prosecution of a violation of s. 943.208
, the performance owner.
If a recording involved in a violation of ss. 943.207
is forfeited, the sheriff of the county in which the recording was seized shall destroy it after the completion of all proceedings in which the recording might be required as evidence.
If, by the forfeiture action deadline, a summons, complaint and affidavit have not been filed under s. 973.076 (1) (b) 1.
with respect to property seized under sub. (1) (e)
, the prosecutor shall notify the victim, if known, by certified mail no later than 7 days after the forfeiture action deadline. The prosecutor shall then return the property to the person from whom it was seized no earlier than 60 days and no later than 90 days after the forfeiture action deadline unless one of the following applies:
A court has entered an order prohibiting the return of the property or requiring it to be conveyed to another person.
The property is needed as evidence in a criminal proceeding and is likely to be unavailable for use as evidence if returned to the person from whom it was seized.
History: 1981 c. 267
; 1985 a. 245
; 1987 a. 348
; 1989 a. 263
; 1993 a. 92
; 1995 a. 290
; 1997 a. 35
; 1999 a. 45
; 2001 a. 16
; 2013 a. 262
; 2015 a. 352
The critical inquiry under sub. (1) (b) is not whether the vehicle was used in a crime, but whether property carried by the vehicle was used in a crime. State v. One 1971 Oldsmobile Cutlass, 159 Wis. 2d 718
, 464 N.W.2d 851
(Ct. App. 1990).
The forfeiture of a motor vehicle under sub. (1) (b) did not violate the constitutional guarantees against excessive punishment. State v. Hammad, 212 Wis. 2d 343
, 569 N.W.2d 68
(Ct. App. 1997), 95-2669
Ownership under sub. (1) (b) 2. (renumbered sub. (1) (b) 2m. b.) is not controlled by legal title, but will be found based on consideration of possession, title, control, and financial stake. State v. Kirch, 222 Wis. 2d 598
, 587 N.W.2d 919
(Ct. App. 1998), 98-0582
A punitive forfeiture violates the prohibition against excessive fines in the U.S. constitution if it is grossly disproportional to the gravity of the defendant's offense. Whether a forfeiture is far in excess of the maximum fine is a factor appropriately considered. State v. Boyd, 2000 WI App 208
, 238 Wis. 2d 693
, 618 N.W.2d 251
For purposes of the statutory “innocent owner" exception in this case, while one co-titleholder had the largest financial interest in the forfeited vehicle, the 2nd co-titleholder, who used the vehicle in drug sales was the actual owner of the vehicle when that 2nd titleholder had nearly complete possession and control of the vehicle and paid for insurance, gas, and maintenance while the first titleholder had a different vehicle of her own. However, while forfeiture of the vehicle and 2nd co-titleholder's 's financial interest in it was constitutional, forfeiture of the first titleholder's full financial interest in the vehicle was unconstitutional under the Excessive Fines Clause. State v. One 2013, Toyota Corolla, 2015 WI App 84
, 365 Wis. 2d 582
, 872 N.W.2d 98
A law enforcement agency may not retain unclaimed contraband money for its own use. In the absence of an asset forfeiture proceeding initiated by the state or a judicial determination that the money constitutes contraband, a local law enforcement agency should dispose of the money as unclaimed property under s. 59.66 (2). OAG 10-09
Forfeiture proceedings. 973.076(1)(a)(a)
Type of action; where brought.
In an action brought to cause the forfeiture of any property specified in s. 342.30 (4) (a)
or s. 973.075 (1)
, the court may render a judgment in rem or against a party personally, or both. The circuit court for the county in which the property was seized shall have jurisdiction over any proceedings regarding the property when the action is commenced in state court. Any property seized may be the subject of a federal forfeiture action.
The district attorney of the county within which the property was seized or in which the defendant is convicted shall commence the forfeiture action within 30 days after the seizure of the property or the date of conviction, whichever is earlier, except that the defendant may request that the forfeiture proceedings be adjourned until after adjudication of any charge concerning a crime which was the basis for the seizure of the property. The request shall be granted. The forfeiture action shall be commenced by filing a summons, complaint and affidavit of the person who seized the property with the clerk of circuit court, provided service of authenticated copies of those papers is made in accordance with ch. 801
within 90 days after filing upon the person from whom the property was seized and upon any person known to have a bona fide perfected security interest in the property.
Upon service of an answer, the action shall be set for hearing within 60 days of the service of the answer but may be continued for cause or upon stipulation of the parties.
In counties having a population of 500,000 or more, the district attorney or the corporation counsel may proceed under subd. 1.
If no answer is served or no issue of law or fact has been joined and the time for that service or joining issue has expired, or if any defendant fails to appear at trial after answering or joining issue, the court may render a default judgment as provided in s. 806.02
In addition to any penalties under this chapter, the court shall, with due provision for the rights of innocent persons, order forfeiture of any property specified in s. 973.075 (1)
in accordance with pars. (b)
, and (d)
A criminal complaint must allege the extent of property subject to forfeiture under this subsection. At trial, the court or the jury shall return a special verdict determining the extent of property, if any, that is subject to forfeiture under this subsection. When a special verdict contains a finding of property subject to a forfeiture under this subsection, a judgment of criminal forfeiture shall be entered along with the judgment of conviction under s. 972.13
An injured person has a right or claim to forfeited property or the proceeds derived from forfeited property under this subsection that is superior to any right or claim the state has in the property or proceeds. This paragraph does not grant the injured person priority over state claims or rights by reason of a tax lien or other basis not covered by this section or by s. 973.075
. All rights, titles, and interest in property specified in s. 973.075 (1)
vest in the state upon the commission of the act giving rise to forfeiture under this subsection.
An injured or innocent person may petition the court for relief from the judgment of criminal forfeiture entered under par. (b)
within 30 days after it is entered. The person filing the petition has the burden of satisfying or convincing to a reasonable certainty by the greater weight of the evidence that the person has a bona fide perfected security interest in the property subject to forfeiture in s. 973.075 (1)
or any other property subject to forfeiture in sub. (4)
. The court may order that a person with a bona fide perfected security interest be paid from the proceeds of the forfeiture or any other equitable relief necessary so as to do substantial justice to the person.
(3) Burden of proof.
The state shall have the burden of satisfying or convincing to a reasonable certainty by the greater weight of the credible evidence that the property is subject to forfeiture under s. 973.075
(4) Action against other property of the person.
The court may order the forfeiture of any other property of a defendant up to the value of property found by the court to be subject to forfeiture under s. 973.075
if the property subject to forfeiture meets any of the following conditions:
Has been transferred or conveyed to, sold to or deposited with a 3rd party.
Has been substantially diminished in value while not in the actual physical custody of the law enforcement agency.
Has been commingled with other property that cannot be divided without difficulty.
History: 1981 c. 267
; Sup. Ct. Order, 120 Wis. 2d xiii (1984); 1985 a. 245
; 1989 a. 121
; 1993 a. 92
; 1997 a. 187
; 2013 a. 362
Judicial Council Note, 1984: Sub. (2) (a) has been amended by allowing 60 days after the action is commenced for service of the summons, complaint and affidavit on the defendants. The prior statute, requiring service within 30 days after seizure of the property, was an exception to the general rule of s. 801.02 (2), stats. [Re Order effective Jan. 1, 1985]
Section 801.15 (2) governs extensions of time after the time for setting a hearing has expired. State v. Elliot, 203 Wis. 2d 95
, 551 N.W.2d 850
(Ct. App. 1996), 96-0012
Under sub. (2) (a), 2001 stats., “adjudication" occurs at the moment of a finding of guilt or innocence by a circuit court and does not embrace an appeal of a conviction. Sub. (2) (a), 2001 stats., does not contemplate adjournment of forfeiture proceedings pending an appeal of the underlying criminal conviction. State v. One 1997 Ford F-150, 2003 WI App 128
, 265 Wis. 2d 264
, 665 N.W.2d 411
Burden of proof; liabilities. 973.077(1)
It is not necessary for the state to negate any exemption or exception regarding any crime in any complaint, information, indictment or other pleading or in any trial, hearing or other proceeding under s. 973.076
. The burden of proof of any exemption or exception is upon the person claiming it.
In the absence of proof that a person is the duly authorized holder of an appropriate federal registration or order form, the person is presumed not to be the holder of the registration or form. The burden of proof is upon the person to rebut the presumption.
No liability is imposed by ss. 973.075
upon any authorized law enforcement officer or employee engaged in the lawful performance of duties.
History: 1981 c. 267
Records accompanying prisoner. 973.08(1)
When any defendant is sentenced to the state prisons, a copy of the judgment of conviction and a copy of any order for restitution under s. 973.20
shall be delivered by the officer executing the judgment to the warden or superintendent of the institution when the prisoner is delivered.
The transcript of any portion of the proceedings relating to the prisoner's sentencing shall be filed at the institution within 120 days from the date sentence is imposed.
The transcript of all other testimony and proceedings upon order of a court shall be delivered to a prisoner within 120 days of his or her request.
The transcript of all other testimony and proceedings upon order of a court shall be delivered to the department within 120 days of its request.
The clerk of court shall file or deliver a transcript under sub. (2)
History: 1971 c. 298
s. 26 (1)
; 1977 c. 187
; Sup. Ct. Order, eff. 1-1-80; 1979 c. 221
; 1987 a. 398
For a court order to be entered under sub. (3), at a minimum a requesting prisoner must show that he or she either never received, or was denied, access to the requested documents. State v. Wilson, 170 Wis. 2d 720
, 490 N.W.2d 48
(Ct. App. 1992).
Except as provided in par. (c)
or if probation is prohibited for a particular offense by statute, if a person is convicted of a crime, the court, by order, may withhold sentence or impose sentence under s. 973.15
and stay its execution, and in either case place the person on probation to the department for a stated period, stating in the order the reasons therefor. The court may impose any conditions which appear to be reasonable and appropriate. The period of probation may be made consecutive to a sentence on a different charge, whether imposed at the same time or previously. If the court imposes a term of probation under sub. (2) (a) 1.
or (b) 2.
, it shall place its reasons for doing so on the record.
If the court places the person on probation, the court shall order the person to pay restitution under s. 973.20
, unless the court finds there is substantial reason not to order restitution as a condition of probation. If the court does not require restitution to be paid to a victim, the court shall state its reason on the record. If the court does require restitution, it shall notify the department of justice of its decision if the victim may be eligible for compensation under subch. I of ch. 949
When a person is convicted of any crime which is punishable by life imprisonment, the court shall not place the person on probation.
If a person is convicted of an offense that provides a mandatory or presumptive minimum period of one year or less of imprisonment, a court may place the person on probation under par. (a)
if the court requires, as a condition of probation, that the person be confined under sub. (4)
for at least that mandatory or presumptive minimum period. The person is eligible to earn good time credit calculated under s. 302.43
regarding the period of confinement.
The court may impose a sentence under s. 973.032
, stay its execution and place the person on probation. A court may not provide that a condition of any probation involves participation in the intensive sanctions program.
If a person is placed on probation for a felony or for any violation of ch. 940
, or 961
, the person, his or her residence, and any property under his or her control may be searched by a law enforcement officer at any time during his or her period of supervision if the officer reasonably suspects that the person is committing, is about to commit, or has committed a crime or a violation of a condition of probation. Any search conducted pursuant to this subsection shall be conducted in a reasonable manner and may not be arbitrary, capricious, or harassing. A law enforcement officer who conducts a search pursuant to this subsection shall, as soon as practicable after the search, notify the department of corrections.
If the court places the person on probation, the court may require, upon consideration of the factors specified in s. 973.20 (13) (a) 2.
, that the probationer reimburse the county or the state, as applicable, for any costs for legal representation to the county or the state for the defense of the case. In order to receive this reimbursement, the county or the state public defender shall provide a statement of its costs of legal representation to the defendant and court within the time period set by the court.
The original term of probation shall be:
Except as provided in subd. 2.
, for any of the following misdemeanors, not less than 6 months nor more than 2 years:
A misdemeanor that the defendant committed while possessing a firearm.
Except as provided in subd. 2.
, for Class A misdemeanors not covered by subd. 1.
, not less than 6 months nor more than one year.
Except as provided in subd. 2.
, for misdemeanors not covered by subd. 1.
, not more than one year.
If the probationer is convicted of not less than 2 nor more than 4 misdemeanors at the same time, the maximum original term of probation may be increased by one year. If the probationer is convicted of 5 or more misdemeanors at the same time, the maximum original term of probation may be increased by 2 years.
Except as provided in subd. 2.
, for felonies, not less than one year nor more than either the maximum term of confinement in prison for the crime or 3 years, whichever is greater.
If the probationer is convicted of 2 or more crimes, including at least one felony, at the same time, the maximum original term of probation may be increased by one year for each felony conviction.