973.09 Annotation
Sub. (2) limits the length of an original term of probation. There is no way to reasonably interpret “original" to mean original plus any extensions. The statute plainly distinguishes limitations on original terms of probation from possible subsequent extensions. Extensions of probation are limited by requiring that they be “for cause" and requiring courts to specify the length of the extension. This interpretation does not render the statute unconstitutional for failing to provide sufficient notice of potential punishment. While “for cause" leaves the determination of maximum sentences to the court, no unlawful delegation of legislative power is involved. State v. Luu,
2009 WI App 91,
319 Wis. 2d 778,
769 N.W.2d 125,
08-2138.
973.09 Annotation
Whether or not circuit courts possess inherent authority to reduce a period of probation that is comparable to the inherent authority courts possess to reduce a sentence, courts have no inherent authority to reduce probation based on a finding of successful rehabilitation. Even assuming that circuit courts possess this inherent authority, that authority must be circumscribed in the same way as the inherent authority of courts to modify sentences already imposed. A claim of rehabilitation sufficient to obviate public protection concerns is not grounds for sentence modification. State v. Dowdy,
2010 WI App 158,
330 Wis. 2d 444,
792 N.W.2d 230,
10-0772.
973.09 Annotation
Sub. (3) (a) does not grant a circuit court authority to reduce the length of probation. Sub. (3) (a) grants a circuit court authority only to “extend probation for a stated period" or to “modify the terms and conditions" of probation. When read in context, it is clear that the authority to “modify the terms and conditions" of probation does not include the authority to reduce the length of probation. State v. Dowdy,
2012 WI 12,
338 Wis. 2d 565,
808 N.W.2d 691,
10-0772.
973.09 Annotation
Probation is not a sentence; it is an alternative to sentence. Probation is a privilege, not a right. Unlike with a maximum sentence or a penalty enhancer, there is no statutory requirement that an accused be advised of potential probation terms or conditions. In this case, the statute itself provided the defendant with sufficient notice of the potential probationary term for acts of domestic abuse. The state did not need to set forth in the information and complaint that it was seeking two years of probation under sub. (2) (a) 1. b. That the state did indicate that it sought a finding of domestic abuse in the first two counts in the complaint did not create a duty to do so in a third. State v. Edwards,
2013 WI App 51,
347 Wis. 2d 526,
830 N.W.2d 109,
12-0758.
973.09 Annotation
Because the defendant's court-ordered three-year term of probation had not expired at the time the Department of Corrections commenced revocation proceedings, the department retained jurisdiction over the defendant despite its issuance of a discharge certificate. The defendant's due process rights were not violated, and equitable estoppel was not available in the context of certiorari review. State ex rel. Greer v. Wiedenhoeft,
2014 WI 19,
353 Wis. 2d 307,
845 N.W.2d 373,
11-2188.
973.09 Annotation
Probation is a statutory creation, and the power to reduce or terminate a term of probation is not necessary for courts to accomplish their constitutionally mandated functions. Therefore, Wisconsin courts do not have the inherent authority to reduce or terminate a period of probation. State v. Schwind,
2019 WI 48,
386 Wis. 2d 526,
926 N.W.2d 742,
17-0141.
973.09 Annotation
When a specific statute requires a court to impose a bifurcated sentence including a mandatory minimum term of confinement, the statute prohibits the court from staying the sentence and placing the person on probation. State v. Shirikian,
2023 WI App 13,
406 Wis. 2d 633,
987 N.W.2d 819,
21-0859.
973.09 Annotation
Wisconsin law empowers circuit courts to impose conditions of extended supervision and probation and to modify those conditions through a formal statutory process. However, actual administration of the sentence and conditions is entrusted to the Department of Corrections. In this case, the circuit court likely stepped over the line when the court imposed a condition that the defendant could not live with any women or unrelated children without the permission of the court, and the court intended to administer that condition through case-by-case oversight. State v. Williams-Holmes,
2023 WI 49,
408 Wis. 2d 1,
991 N.W.2d 373,
21-0809.
973.09 Annotation
Sub. (2) applies to all sentences pronounced at the same time, whether grouped together because they are related or because of convenience. United States v. Stalbaum,
63 F.3d 537 (1995).
973.10
973.10
Control and supervision of probationers. 973.10(1)(1)
Imposition of probation shall have the effect of placing the defendant in the custody of the department and shall subject the defendant to the control of the department under conditions set by the court and rules and regulations established by the department for the supervision of probationers, parolees and persons on extended supervision.
973.10(1m)(a)(a) The department may order that a probationer perform community service work for a public agency or a nonprofit charitable organization. An order may apply only if agreed to by the probationer and the organization or agency. The department shall ensure that the probationer is provided a written statement of the terms of the community service order and shall monitor the probationer's compliance with the community service order. Compliance with this subsection does not entitle a probationer to credit under s.
973.155.
973.10(1m)(b)
(b) Any organization or agency acting in good faith to which a probationer is assigned under an order under this subsection has immunity from any civil liability in excess of $25,000 for acts or omissions by or impacting on the probationer. The department has immunity from any civil liability for acts or omissions by or impacting on the probationer regarding the assignment under this subsection.
973.10(2)
(2) If a probationer violates the conditions of probation, the department of corrections may initiate a proceeding before the division of hearings and appeals in the department of administration. Unless waived by the probationer, a hearing examiner for the division shall conduct an administrative hearing and enter an order either revoking or not revoking probation. Upon request of either party, the administrator of the division shall review the order. If the probationer waives the final administrative hearing, the secretary of corrections shall enter an order either revoking or not revoking probation. If probation is revoked, the department shall:
973.10(2)(a)
(a) If the probationer has not already been sentenced, order the probationer brought before the court for sentence which shall then be imposed without further stay under s.
973.15; or
973.10(2)(b)
(b) If the probationer has already been sentenced, order the probationer to prison, and the term of the sentence shall begin on the date the probationer enters the prison.
973.10(2g)
(2g) Upon demand prior to a revocation hearing under sub.
(2), the district attorney shall disclose to a defendant the existence of any audiovisual recording of an oral statement of a child under s.
908.08 which is within the possession, custody or control of the state and shall make reasonable arrangements for the defendant and defense counsel to view the statement. If, after compliance with this subsection, the state obtains possession, custody or control of such a statement, the district attorney shall promptly notify the defendant of that fact and make reasonable arrangements for the defendant and defense counsel to view the statement.
973.10(2m)
(2m) In any administrative hearing under sub.
(2), the hearing examiner may order that a deposition be taken by audiovisual means and allow the use of a recorded deposition under s.
967.04 (7) to
(10).
973.10(2s)
(2s) If a probationer signs a statement admitting a violation of a condition or rule of probation, the department may, as a sanction for the violation, confine the probationer for up to 90 days in a regional detention facility or, with the approval of the sheriff, in a county jail. If the department confines the probationer in a county jail under this subsection, the department shall reimburse the county for its actual costs in confining the probationer from the appropriations under s.
20.410 (1) (ab) and
(b).
973.10(3)
(3) A copy of the order of the department of corrections in the case of a waiver or the division of hearings and appeals in the department of administration in the case of a final administrative hearing is sufficient authority for the officer executing it to take the probationer to court or to prison. The officer shall execute the order as a warrant for arrest but any officer may, without order or warrant, take the probationer into custody whenever necessary in order to prevent escape or enforce discipline or for violation of probation.
973.10(4)
(4) The division of hearings and appeals in the department of administration shall make either an electronic or stenographic record of all testimony at each probation revocation hearing. The division shall prepare a written transcript of the testimony only at the request of a judge who has granted a petition for judicial review of the revocation decision. Each hearing notice shall include notice of the provisions of this subsection and a statement that any person who wants a written transcript may record the hearing at his or her own expense.
973.10 Cross-reference
Cross-reference: See also ss.
DOC 330.02 and
331.01, Wis. adm. code.
973.10 Note
Judicial Council Note, 1981: Sub. (2) (a) has been amended to clarify that, upon revocation of probation of an offender from whom sentence was originally withheld, the court must impose sentence in accordance with s. 973.15. That section now permits the court to order that any sentence be concurrent with or consecutive to any sentence imposed at the same time or previously. [Bill 341-A]
973.10 Annotation
Before probation can be revoked, the Department of Health and Social Services must hold a hearing and make a record so that on judicial review it can be determined whether the department acted arbitrarily or capriciously. The hearing need not be formal. State ex rel. Johnson v. Cady,
50 Wis. 2d 540,
185 N.W.2d 306 (1971).
973.10 Annotation
Revocation of probation is an integral part of the sentencing process; a defendant is entitled to assistance of counsel at parole or probation revocation hearings without regard to whether the hearing occurs in a withheld sentence or a postsentence situation. Oestrich v. State,
55 Wis. 2d 222,
198 N.W.2d 664 (1972).
973.10 Annotation
Since probation revocation hearings are independent from the original conviction and sentencing, a judge disqualified in the original case may preside at the hearing in the absence of a challenge. State v. Fuller,
57 Wis. 2d 408,
204 N.W.2d 452 (1973).
973.10 Annotation
Adopting and applying American Bar Association standards relating to probation. State ex rel. Plotkin v. DHSS,
63 Wis. 2d 535,
217 N.W.2d 641 (1974).
973.10 Annotation
A certiorari proceeding in the committing court to review a revocation of parole or probation is not a criminal proceeding. State ex rel. Hanson v. DHSS,
64 Wis. 2d 367,
219 N.W.2d 267 (1974).
973.10 Annotation
The right to counsel at a preliminary revocation hearing is within the discretion of the Department of Health and Social Services based on the need to meet the applicable due process requirements. State ex rel. Hawkins v. Gagnon,
64 Wis. 2d 394,
219 N.W.2d 252 (1974).
973.10 Annotation
A defendant whose probation was transferred to Tennessee and who was charged with a violation of probation there was denied due process when the revocation hearing was held in Wisconsin and the Department of Health and Social Services refused to allow deposition of witnesses in Tennessee. When the witnesses' testimony is of a direct and unequivocally exculpatory nature rather than cumulative, character, or background testimony that might have been adequately presented by deposition or affidavit, an opportunity to present live testimony with cross-examination of the witnesses is required. State ex rel. Harris v. Schmidt,
69 Wis. 2d 668,
230 N.W.2d 890 (1975).
973.10 Annotation
Department of Health and Social Services probation files and records are public records and admissible at a probation revocation hearing. State ex rel. Prellwitz v. Schmidt,
73 Wis. 2d 35,
242 N.W.2d 227 (1976).
973.10 Annotation
Time spent in jail awaiting revocation is deducted from a maximum sentence despite the option available to the defendant to spend the time in prison. State ex rel. Solie v. Schmidt,
73 Wis. 2d 76,
242 N.W.2d 244 (1976).
973.10 Annotation
When the Department of Health and Social Services overrules its hearing examiner and revokes probation, it must provide a statement of the evidence relied upon and the reasons for revoking probation. Ramaker v. State,
73 Wis. 2d 563,
243 N.W.2d 534 (1976).
973.10 Annotation
A warrantless search by a probation officer was constitutionally permissible when probable cause existed for the officer's attempt to determine whether the probationer had violated probation. State v. Tarrell,
74 Wis. 2d 647,
247 N.W.2d 696 (1976).
973.10 Annotation
The trial court had no authority to extend the probation of a defendant brought before the court under sub. (2). State v. Balgie,
76 Wis. 2d 206,
251 N.W.2d 36 (1977).
973.10 Annotation
The court exceeded its jurisdiction by releasing the defendant on bail pending revocation proceedings. State ex rel. DHSS v. Circuit Court,
84 Wis. 2d 707,
267 N.W.2d 373 (1978).
973.10 Annotation
Equal protection does not require symmetry in probation and parole systems. State v. Aderhold,
91 Wis. 2d 306,
284 N.W.2d 108 (Ct. App. 1979).
973.10 Annotation
A probationer's due process right to prompt revocation proceedings was not triggered when the probationer was detained as a result of unrelated criminal proceedings. State ex rel. Alvarez v. Lotter,
91 Wis. 2d 329,
283 N.W.2d 408 (Ct. App. 1979).
973.10 Annotation
Probation can be revoked for a violation of a criminal statute absent a written probation agreement. State ex rel. Rodriguez v. DHSS,
133 Wis. 2d 47,
393 N.W.2d 105 (Ct. App. 1986).
973.10 Annotation
A probation officer may conduct a warrantless search. That the underlying conviction is subsequently overturned does not retroactively invalidate a warrantless search by the probation officer. State v. Angiolo,
207 Wis. 2d 561,
558 N.W.2d 701 (Ct. App. 1996),
96-0099.
973.10 Annotation
A probationer has a right to a competency determination when during a revocation proceeding the administrative law judge has reason to doubt the probationer's competence. The determination shall be made by the circuit court in the county of sentencing, which shall adhere to ss. 971.13 and 971.14 to the extent practicable. State ex rel. Vanderbeke v. Endicott,
210 Wis. 2d 502,
563 N.W.2d 883 (1997),
95-0907.
973.10 Annotation
Because an administrative decision may be reviewed upon a timely petition for certiorari, an adequate remedy exists at law to correct defects and relief under habeas corpus will not be granted. State ex rel. Reddin v. Galster,
215 Wis. 2d 179,
572 N.W.2d 505 (Ct. App. 1997),
97-0111.
973.10 Annotation
A certiorari proceeding to review a probation revocation must be heard in the circuit court of conviction, but it need not be by the same branch. Drow v. Schwarz,
225 Wis. 2d 362,
592 N.W.2d 623 (1999),
97-1867.
973.10 Annotation
Sub (2) is constitutional. Probation and probation revocation are within the powers shared by the branches of government. Legislative delegation of revocation to the executive branch does not unduly burden or substantially interfere with the judiciary's constitutional function to impose criminal penalties. State v. Horn,
226 Wis. 2d 637,
594 N.W.2d 772 (1999),
97-2751.
973.10 Annotation
If a probationer refuses to incriminate himself or herself as required by a condition of supervision, the probationer cannot be automatically revoked on that ground. If the probationer refuses despite a grant of immunity, the probationer's probation may be revoked on that basis. Any incriminating statements the probationer provides under the grant of immunity may be used as justification for revocation, but not used in any criminal proceedings. If a probationer is compelled by way of probation rules to incriminate himself or herself, the resulting statements may not be used in any criminal proceeding. State v. Peebles,
2010 WI App 156,
330 Wis. 2d 243,
792 N.W.2d 212,
09-3111.
973.10 Annotation
When both the circuit court and the defendant's probation agent ordered the defendant to attend sex offender counseling, his supervision rules required that he be truthful, that he submit to lie detector tests, and that he fully cooperate with and successfully complete sex offender counseling, the probation supervision rules documents explicitly informed the defendant he could be revoked for failure to comply with any conditions, and the defendant gave his statements, at least in part, because he was required to take lie detector tests, his statements were compelled for purposes of the 5th amendment. Because the statements were then used against him at sentencing to increase his prison sentence, they were incriminating and should have been excluded. State v. Peebles,
2010 WI App 156,
330 Wis. 2d 243,
792 N.W.2d 212,
09-3111.
973.10 Annotation
Wisconsin law empowers circuit courts to impose conditions of extended supervision and probation and to modify those conditions through a formal statutory process. However, actual administration of the sentence and conditions is entrusted to the Department of Corrections. In this case, the circuit court likely stepped over the line when the court imposed a condition that the defendant could not live with any women or unrelated children without the permission of the court, and the court intended to administer that condition through case-by-case oversight. State v. Williams-Holmes,
2023 WI 49,
408 Wis. 2d 1,
991 N.W.2d 373,
21-0809.
973.10 Annotation
When a probationer or parolee is charged with a crime and may have otherwise violated conditions of release, revocation hearings based on the non-criminal violations should be held without delay. 65 Atty. Gen. 20.
973.10 Annotation
Revocation of probation without a hearing is a denial of due process. Hahn v. Burke,
430 F.2d 100 (1970).
973.10 Annotation
A probation revocation hearing may be administrative. Retained or appointed counsel must be allowed to participate. Gunsolus v. Gagnon,
454 F.2d 416 (1971).
973.10 Annotation
Criminal Law—Probation Revocation—Right to a Hearing—Right to Counsel. 1971 WLR 648.
973.10 Annotation
Constitutional Law—Due Process—Criminal Law—Probation and Parole Revocation in Wisconsin. Fisher. 1977 WLR 503.
973.11
973.11
Placements with volunteers in probation program. 973.11(1)(1)
Placements. If a person is convicted of or pleads guilty or no contest to one or more misdemeanors for which either mandatory periods of imprisonment are not required or the person is sentenced under s.
346.65 (2) (bm) or
(cm),
(2j) (bm) or
(cm), or
(3r), if the chief judge of the judicial administrative district has approved a volunteers in probation program established in the applicable county, and if the court decides that volunteer supervision under the program will likely benefit the person and the community and subject to the limitations under sub.
(3), the court may withhold sentence or judgment of conviction and order that the person be placed with that volunteers in probation program. A person's participation in the program may not be used to conceal, withhold, or mask information regarding the judgment of conviction if the conviction is required to be included in a record kept under s.
343.23 (2) (a). Except as provided in sub.
(3), the order shall provide any conditions that the court determines are reasonable and appropriate and may include, but need not be limited to, one or more of the following:
973.11(1)(a)
(a) A directive to a volunteer to provide one or more of the following functions for the defendant:
973.11(2)
(2)
Approval of programs. In each judicial administrative district under s.
757.60, the chief judge of the district may approve volunteers in probation programs established in the district for placements under this section.
973.11(3)
(3)
Status. A defendant who is placed with a volunteers in probation program under sub.
(1) is subject to the conditions set by the court. The defendant is not on probation under ss.
973.09 and
973.10 and the department is not responsible for supervising him or her. A court may place a defendant under sub.
(1) prior to conviction only if a deferred prosecution agreement is reached under s.
971.40. In that case, the person is subject to the conditions set by the court under this section and the conditions provided in the agreement.
973.11(4)
(4)
Term. The court shall set the length of the order, which may not exceed 2 years unless extended pursuant to a hearing under sub.
(5). When the defendant has satisfied the conditions of the order, the court shall discharge the defendant and dismiss the charges against the defendant if a judgment of conviction was not previously entered.
973.11(5)(a)
(a) If the defendant is alleged to have violated the conditions of an order under sub.
(1), the court may hold a hearing regarding the allegations. The court shall notify the defendant at least 7 days prior to holding any such hearing. At the hearing, the defendant has the right to each of the following:
973.11(5)(b)
(b) The court may extend the period of supervision for up to 45 days to accommodate a hearing under this subsection.
973.11(5)(c)
(c) Failure of the defendant to appear at a hearing under this subsection tolls the running of the period of supervision.
973.11(5)(d)
(d) If the court finds that the violation occurred, it may impose a sentence, revise the conditions of the order or allow the order to continue.
973.11(6)
(6)
Other modifications to order. At any time prior to the expiration of the order the court may shorten the length of the order or modify the conditions of the order. The court shall hold a hearing regarding a determination under this subsection if the defendant or district attorney requests a hearing.
973.12
973.12
Sentence of a repeater or persistent repeater. 973.12(1)(1)
Whenever a person charged with a crime will be a repeater or a persistent repeater under s.
939.62 or subject to a penalty under s.
939.6195 if convicted, any applicable prior convictions may be alleged in the complaint, indictment or information or amendments so alleging at any time before or at arraignment, and before acceptance of any plea. The court may, upon motion of the district attorney, grant a reasonable time to investigate possible prior convictions before accepting a plea. If the prior convictions are admitted by the defendant or proved by the state, he or she shall be subject to sentence under s.
939.6195 or
939.62 unless he or she establishes that he or she was pardoned on grounds of innocence for any crime necessary to constitute him or her a repeater or a persistent repeater. An official report of the F.B.I. or any other governmental agency of the United States or of this or any other state shall be prima facie evidence of any conviction or sentence therein reported. Any sentence so reported shall be deemed prima facie to have been fully served in actual confinement or to have been served for such period of time as is shown or is consistent with the report. The court shall take judicial notice of the statutes of the United States and foreign states in determining whether the prior conviction was for a felony or a misdemeanor.
973.12(2)
(2) In every case of sentence under s.
939.6195 or
939.62, the sentence shall be imposed for the present conviction, but if the court indicates in passing sentence how much thereof is imposed because the defendant is a repeater, it shall not constitute reversible error, but the combined terms shall be construed as a single sentence for the present conviction.
973.12 History
History: 1993 a. 289;
2017 a. 145.
973.12 Annotation
Because s. 939.62 authorizes penalty enhancement only when the maximum underlying sentence is imposed, the enhancement portion of a sub-maximum sentence was vacated as an abuse of sentencing discretion. State v. Harris,
119 Wis. 2d 612,
350 N.W.2d 633 (1984).
973.12 Annotation
A report under sub. (1) must contain critically relevant facts in order to support penalty enhancement. State v. Farr,
119 Wis. 2d 651,
350 N.W.2d 640 (1984).
