A post-plea amendment of a repeater allegation in a charging document that meaningfully changes the basis on which possible punishment can be assessed is barred. State v. Wilks, 165 Wis. 2d 102
, 477 N.W.2d 632
(Ct. App. 1991).
A guilty plea without a specific admission to repeater allegations is not sufficient to establish the facts necessary to impose the repeater penalty enhancer. State v. Zimmermann, 185 Wis. 2d 549
, 518 N.W.2d 303
(Ct. App. 1994).
When a defendant does not admit to habitual criminality when entering a no contest plea, the state must prove the alleged repeater status beyond a reasonable doubt. State v. Theriault, 187 Wis. 2d 125
, 522 N.W.2d 254
(Ct. App. 1994).
For a repeater enhancer to apply, the prior conviction must be alleged prior to the entry of a plea, but an error in the information regarding the penalty may be corrected when an amendment will cause no prejudice. State v. Gerard, 189 Wis. 2d 505
, 525 N.W.2d 718
Proof of repeater status must be made prior to sentencing. Judicial notice of prior convictions at a postconviction hearing was improper. State v. Koeppen, 195 Wis. 2d 117
, 536 N.W.2d 386
(Ct. App. 1995), 94-2386
Gerard is not limited to clerical errors. If the information correctly alleges a defendant's repeater status, a post-arraignment amendment to the information does not violate this section as long as it does not affect the sufficiency of the notice to the defendant concerning his or her repeater status. State v. Campbell, 201 Wis. 2d 783
, 549 N.W.2d 501
(Ct. App. 1996), 95-2217
The requirements for establishing prior offenses in s. 973.12 are not applicable to the penalty enhancement provisions under chs. 341 to 349, including drunk driving offenses under s. 346.65 (2) or operating after revocation offenses under 343.44 (2). State v. Wideman, 206 Wis. 2d 91
, 556 N.W.2d 737
and State v. Spaeth, 206 Wis. 2d 135
, 556 N.W.2d 728
Sub. (1) does not require that the period of incarceration under s. 939.62 (2) must be alleged in the charging document. State v. Squires, 211 Wis. 2d 876
, 565 N.W.2d 309
(Ct. App. 1997), 96-3302
When the record established that the defendant fully understood the nature of the repeater charge against him, the defendant's no contest plea to the information, which charged the defendant as a repeater on all counts, constituted an admission under s. 973.12. State v. Liebnitz, 231 Wis. 2d 272
, 603 N.W.2d 208
Sub. (1) does not prohibit defendants from agreeing, after arraignment and entry of a not guilty plea as part of a plea agreement, to amend charging documents to add repeater allegations. State v. Peterson, 2001 WI App 220
, 247 Wis. 2d 871
, 634 N.W.2d 893
Although the information itself failed to contain sufficient detail to provide proper notice of a repeater allegation in compliance with the statute and
Gerard, a certified copy of the defendant's prior convictions, provided at a change of plea hearing, cured the defect. State v. Fields, 2001 WI App 297
, 249 Wis. 2d 292
, 638 N.W.2d 897
An uncertified copy of a prior judgment of conviction may be used to prove a convicted defendant's status as a habitual criminal. The rules of evidence do not apply to documents offered during a circuit court's presentence determination of whether a qualifying prior conviction exists. The state has the burden of proof and must offer proof beyond a reasonable doubt of the conviction. State v. Saunders, 2002 WI 107
, 255 Wis. 2d 589
, 649 N.W.2d 263
The admissibility of evidence proving prior convictions can be waived when the prosecution submits documentary evidence that on its face is sufficient to show that the defendant was a repeater. State v. Edwards, 2002 WI App 66
, 251 Wis. 2d 651
, 642 N.W.2d 537
In a complaint that in referring to predicate convictions described the offenses, stated the correct county where the convictions occurred, and cited the case number, but misstated the date of the convictions by only one calendar day, the misstatement did not meaningfully change the basis on which the defendant entered a plea and provided the required notice of the predicate convictions on which the repeater status was based. State v. Stynes, 2003 WI 65
, 262 Wis. 2d 335
, 665 N.W.2d 115
Notice of lifetime supervision for serious sex offenders. 973.125(1)(1)
Whenever a prosecutor decides to seek lifetime supervision under s. 939.615
of a person charged with a serious sex offense specified in s. 939.615 (1) (b) 1.
, the prosecutor shall, at any time before or at arraignment and before acceptance of any plea, state in the complaint, indictment or information or amendments to the complaint, indictment or information that the prosecution will seek to have the person placed on lifetime supervision under s. 939.615
Whenever a prosecutor decides to seek lifetime supervision under s. 939.615
of a person charged with a serious sex offense specified in s. 939.615 (1) (b) 2.
, the prosecutor shall, at any time before or at arraignment and before acceptance of any plea, do all of the following:
State in the complaint, indictment or information or amendments to the complaint, indictment or information that the prosecution will seek to have the person placed on lifetime supervision under s. 939.615
Allege in the complaint that the violation with which the person is charged is a serious sex offense under s. 939.615 (1) (b)
because one of the purposes for the conduct constituting the violation was for the person's sexual arousal or gratification.
Before accepting a plea, the court may, upon motion of the district attorney, grant a reasonable time to investigate whether lifetime supervision may be necessary for a defendant or whether one of the purposes for the conduct constituting a violation with which a defendant is charged was for the defendant's sexual arousal or gratification.
History: 1997 a. 275
Excessive sentence, errors cured.
In any case where the court imposes a maximum penalty in excess of that authorized by law, such excess shall be void and the sentence shall be valid only to the extent of the maximum term authorized by statute and shall stand commuted without further proceedings.
This section caps the length of a sentence reduced thereby, but it does not address other aspects or conditions of sentencing. The sentencing court may resentence the defendant if the new sentence is permitted by the law. State v. Holloway, 202 Wis. 2d 694
, 551 N.W.2d 841
(Ct. App. 1996), 95-2575
This section commands that all sentences in excess of that authorized by law be declared void, including the repeater portion of a sentence. Prior postconviction motions that failed to challenge the validity of the sentence do not bar seeking relief from faulty repeater sentences. State v. Flowers, 221 Wis. 2d 20
, 586 N.W.2d 175
(Ct. App. 1998), 97-3682
To allow the imposition of an unauthorized criminal penalty on the basis of waiver ignores the dictate of this section to alleviate all maximum penalties imposed in excess of that prescribed by law. State v. Hanson, 2001 WI 70
, 244 Wis. 2d 405
, 628 N.W.2d 759
Flowers holds that neither Escalona-Naranjo nor s. 974.06 (4) bar motions challenging the foundation for the convictions sustaining the habitual criminal status that are properly brought under this section. However, this section as it pertains to sentencing a repeat offender applies only when the state fails to prove the prior conviction necessary to establish the habitual criminal status or when the penalty given is longer than permitted by law for a repeater. State v. Mikulance, 2006 WI App 69
, 291 Wis. 2d 494
, 713 N.W.2d 160
Courts to report convictions to the state superintendent of public instruction. 973.135(1)(b)
"State superintendent" means the state superintendent of public instruction.
If a court determines that a person convicted of a crime specified in ch. 948
, including a crime specified in s. 948.015
, a felony for which the maximum term of imprisonment is at least 5 years, 4th degree sexual assault under s. 940.225 (3m)
or a crime in which the victim was a child, is employed by an educational agency, the clerk of the court in which such conviction occurred shall promptly forward to the state superintendent the record of conviction.
If a conviction under sub. (2)
is reversed, set aside or vacated, the clerk of the court shall promptly forward to the state superintendent a certificate stating that the conviction has been reversed, set aside or vacated.
History: 1991 a. 42
; 1995 a. 27
; 1997 a. 27
Courts to report convictions to the department of transportation.
Upon conviction of a person for any of the following offenses, the clerk of the court in which such conviction occurred shall promptly forward the record of conviction to the department of transportation:
A violation of s. 947.015
, if the property involved is owned or leased by the state or any political subdivision of the state, or if the property involved is a school premises, as defined in s. 948.61 (1) (c)
History: 2003 a. 200
Sentence to house of correction. 973.14(1)
In addition to the authority in ss. 302.18
, prisoners sentenced to a county jail may be transferred by the sheriff to a house of correction without court approval.
Prisoners confined in the house of correction may be transferred by the superintendent of the house of correction to the county jail without court approval.
A prisoner sentenced to a county jail or the house of correction being held in a county jail awaiting trial on another charge shall be deemed to be serving the county jail or house of correction sentence and shall be given credit on the sentence as provided in s. 302.43
History: 1977 c. 126
; 1989 a. 31
Sentence, terms, escapes. 973.15(1)
Except as provided in s. 973.032
, all sentences to the Wisconsin state prisons shall be for one year or more. Except as otherwise provided in this section, all sentences commence at noon on the day of sentence, but time which elapses after sentence while the convicted offender is at large on bail shall not be computed as any part of the term of imprisonment.
Except as provided in par. (b)
, the court may impose as many sentences as there are convictions and may provide that any such sentence be concurrent with or consecutive to any other sentence imposed at the same time or previously.
The court may not impose a sentence to the intensive sanctions program consecutive to any other sentence. The court may not impose a sentence to the intensive sanctions program concurrent with a sentence imposing imprisonment, except that the court may impose a sentence to the program concurrent with an imposed and stayed imprisonment sentence or with a prison sentence for which the offender has been released on extended supervision or parole. The court may impose concurrent intensive sanctions program sentences. The court may impose an intensive sanctions program sentence concurrent to probation. The court may impose any sentence for an escape from a sentence to the intensive sanctions program concurrent with the sentence to the intensive sanctions program.
"Determinate sentence" means a bifurcated sentence imposed under s. 973.01
or a life sentence under which a person is eligible for release to extended supervision under s. 973.014 (1g) (a) 1.
"Indeterminate sentence" means a sentence to the Wisconsin state prisons other than one of the following:
Determinate sentences imposed to run concurrent with or consecutive to determinate sentences. 973.15(2m)(b)1.1.
If a court provides that a determinate sentence is to run concurrent with another determinate sentence, the person sentenced shall serve the periods of confinement in prison under the sentences concurrently and the terms of extended supervision under the sentences concurrently.
If a court provides that a determinate sentence is to run consecutive to another determinate sentence, the person sentenced shall serve the periods of confinement in prison under the sentences consecutively and the terms of extended supervision under the sentences consecutively and in the order in which the sentences have been pronounced.
Determinate sentences imposed to run concurrent with or consecutive to indeterminate sentences. 973.15(2m)(c)1.1.
If a court provides that a determinate sentence is to run concurrent with an indeterminate sentence, the person sentenced shall serve the period of confinement in prison under the determinate sentence concurrent with the period of confinement in prison under the indeterminate sentence and the term of extended supervision under the determinate sentence concurrent with the parole portion of the indeterminate sentence.
If a court provides that a determinate sentence is to run consecutive to an indeterminate sentence, the person sentenced shall serve the period of confinement in prison under the determinate sentence consecutive to the period of confinement in prison under the indeterminate sentence.
Indeterminate sentences imposed to run concurrent with or consecutive to determinate sentences. 973.15(2m)(d)1.1.
If a court provides that an indeterminate sentence is to run concurrent with a determinate sentence, the person sentenced shall serve the period of confinement in prison under the indeterminate sentence concurrent with the period of confinement in prison under the determinate sentence and the parole portion of the indeterminate sentence concurrent with the term of extended supervision required under the determinate sentence.
If a court provides that an indeterminate sentence is to run consecutive to a determinate sentence, the person sentenced shall serve the period of confinement in prison under the indeterminate sentence consecutive to the period of confinement in prison under the determinate sentence.
Revocation in multiple sentence cases.
If a person is serving concurrent determinate sentences and extended supervision is revoked in each case, or if a person is serving a determinate sentence concurrent with an indeterminate sentence and both extended supervision and parole are revoked, the person shall concurrently serve any periods of confinement in prison required under those sentences under s. 302.11 (7) (am)
, 302.113 (9) (am)
, or 302.114 (9) (am)
Courts may impose sentences to be served in whole or in part concurrently with a sentence being served or to be served in a federal institution or an institution of another state.
When a court orders a sentence to the Wisconsin state prisons to be served in whole or in part concurrently with a sentence being served or to be served in a federal institution or an institution of another state:
The court shall order the department to immediately inform the appropriate authorities in the jurisdiction where the prior sentence is to be served that the convicted offender is presently available to commence or resume serving that sentence; and
The trial and commitment records required under s. 973.08
shall be delivered immediately to the warden or superintendent of the Wisconsin institution designated as the reception center to receive the convicted offender when he or she becomes available to Wisconsin authorities.
A convicted offender who is made available to another jurisdiction under ch. 976
or in any other lawful manner shall be credited with service of his or her Wisconsin sentence or commitment under the terms of s. 973.155
for the duration of custody in the other jurisdiction.
(6) Sections 302.11
are applicable to an inmate serving a sentence to the Wisconsin state prisons for a crime committed before December 31, 1999, but confined in a federal institution or an institution in another state.
If a convicted offender escapes, the time during which he or she is unlawfully at large after escape shall not be computed as service of the sentence.
The sentencing court may stay execution of a sentence of imprisonment or to the intensive sanctions program only:
For not more than 60 days, except that the court may not stay execution of a person's sentence of imprisonment or to the intensive sanctions program under this subdivision if the sentence is for a 3rd or subsequent violation that is counted as a suspension, revocation, or conviction under s. 343.307
, or a violation of s. 940.09 (1)
in the person's lifetime, or a combination thereof.
If a court sentences a person under s. 973.03 (5) (b)
, this subsection applies only to the first period of imprisonment.
Judicial Council Note, 1981: Sub. (2) has been simplified to allow a court, in imposing a criminal sentence, to order that it be concurrent with or consecutive to any other sentence imposed at the same time or previously. The prior statute, although lengthier and more complicated, failed to achieve its apparent purpose of allowing consecutive sentencing in situations involving probation and parole revocations, escapes, etc. See Drinkwater v. State, 69 Wis. 2d 60
(1975); Guyton v. State, 69 Wis. 2d 663
(1975); Bruneau v. State, 77 Wis. 2d 166
(1977); Smith v. State, 85 Wis. 2d 650
(1978); and Donaldson v. State, 93 Wis. 2d 306
This revision allows sentences to be made consecutive to any previously or simultaneously imposed sentence, without regard to whether the offender is "then serving" such sentence, is subject to parole revocation proceedings, or has received a new sentence between the time of an escape and a return to a state facility. The revised statute also governs the sentencing of probationers by virtue of the cross-references in ss. 973.09 (1) (a) and 973.10 (2) (a). [Bill 341-A]
Judicial Council Note, 1981: Sub. (8) has been added to specify the circumstances under which execution of a sentence of imprisonment may be stayed. Par. (a) references the rule of Reinex v. State, 51 Wis. 152 (1881) and Weston v. State, 28 Wis. 2d 136
(1965), whereby execution can be stayed for "legal cause", such as during the pendency of an appeal. Par. (b) cross-references the probation statute. Par. (c) is new. It allows the court to delay the commencement of a sentence for up to 60 days. The Wisconsin supreme court recently held that courts have no authority to stay execution of a sentence of imprisonment in the absence of such a statutory provision or legal cause. State v. Braun, 100 Wis. 2d 77
(1981). [Bill 736-A]
Under s. 973.15 (2) and (3), a court may impose a sentence consecutive to an out-of-state sentence. State v. Toy, 125 Wis. 2d 216
, 371 N.W.2d 386
(Ct. App. 1985).
A sentencing court has authority to stay a sentence and order it be served consecutive to a ss. 345.47 and 973.07 commitment for failure to pay a fine and penalty assessment. State v. Strohbeen, 147 Wis. 2d 566
, 433 N.W.2d 288
(Ct. App. 1988).
An adult sentence cannot run consecutive to a juvenile disposition. State v. Woods, 173 Wis. 2d 129
, 496 N.W.2d 144
(Ct. App. 1992).
The sentence of a defendant convicted of committing a crime while committed under a prior not guilty by reason of mental incompetence commitment under s. 971.17 may not be served concurrent with the commitment. State v. Szulczewski, 209 Wis. 2d 1
, 561 N.W.2d 781
(Ct. App. 1997), 96-1323
A court may not order a prison sentence consecutive to an s. 971.17 commitment. A sentence can only be imposed concurrent or consecutive to another sentence. State v. Harr, 211 Wis. 2d 584
, 568 N.W.2d 307
(Ct. App. 1997), 96-2815