LRB-1890/2
JEO:kaf:jf
1997 - 1998 LEGISLATURE
April 17, 1997 - Introduced by Representatives Goetsch, Ladwig, Porter,
Ziegelbauer, Musser, F. Lasee, Kelso, Green, Seratti and Albers,
cosponsored by Senators Drzewiecki and Buettner. Referred to Committee
on Criminal Justice and Corrections.
AB291,1,7
1An Act to renumber and amend 939.62 (2) and 939.62 (2m) (b);
to amend
2302.11 (1m), 303.065 (1), 304.02 (5), 304.06 (1) (b), 304.071 (2), 939.62 (2m) (d),
3939.62 (3) (a), 939.62 (3) (b), 939.626 (3) and 973.014 (2); and
to create 938.396
4(2) (cm), 939.62 (2) (a) 2., 939.62 (2) (a) 4., 939.62 (2m) (b) 2., 939.623 (3), 939.624
5(3) and 939.626 (2m) of the statutes;
relating to: using delinquency
6adjudications for purposes of certain penalty enhancers and providing
7penalties.
Analysis by the Legislative Reference Bureau
Under current law, a person who has been convicted of a crime and who has
certain prior criminal convictions may be sentenced as a repeater or a persistent
repeater. A person is a repeater if, during the 5-year period immediately preceding
the commission of the crime for which he or she is being sentenced, the person was
convicted of either one felony or 3 misdemeanors. If a person is a repeater, the
maximum imprisonment for the crime for which he or she is being sentenced may be
increased by a certain number of years, depending on the crime. A person is a
persistent repeater under current law if he or she has 2 convictions for any of certain
serious felonies and is then convicted a 3rd time for another serious felony (the
so-called "3 strikes, you're out" law). A person who is a persistent repeater must be
sentenced to life without parole.
In addition, current law provides minimum or increased penalties for persons
who commit a certain type of crime after having been previously convicted of that
same type of crime. A person who has one or more prior convictions for a serious sex
crime and who is subsequently convicted of committing another serious sex crime
must be sentenced to at least 5 years' imprisonment and may not be placed on
probation. Likewise, a person who has one or more prior convictions for a serious
violent crime and who is subsequently convicted of committing another serious
violent crime must be sentenced to at least 5 years' imprisonment and may not be
placed on probation. Finally, if a person has one or more prior convictions for a child
sex crime and he or she is subsequently convicted of committing another child sex
crime, the maximum term of imprisonment for the subsequent child sex crime may
be increased by not more than 10 years.
This bill provides that delinquency adjudications may be used like prior
convictions for the purpose of determining whether a person is a repeater or
persistent repeater and for the purpose of imposing minimum or increased penalties
in cases involving serious sex crimes, serious violent crimes and child sex crimes.
Specifically, the changes that the bill makes are as follows:
1. The bill provides that a person is a repeater if he or she has been: 1)
adjudicated delinquent for any felony; or 2) adjudicated delinquent for one
misdemeanor and convicted for 2 misdemeanors as an adult. Like prior convictions
under current law, the delinquency adjudication must have occurred within 5 years
of the commission of the crime for which the person is being sentenced.
2. The bill provides that, under the "3 strikes, you're out" law, one or more
delinquency adjudications for any of the serious felonies covered by the law may
count as one "strike", and one "strike" only. Thus, under the bill, a person with one
or more delinquency adjudications for serious felonies will be a persistent repeater
only if he or she also has two convictions for serious felonies as an adult. In addition,
a person's delinquency adjudications can no longer be considered after a person
reaches the age of 25; instead, a person 25 years of age or older is a persistent
repeater only if he or she satisfies the requirements under current law.
3. Under the bill, if a person has a delinquency adjudication for a serious sex
crime, a serious violent crime or a child sex crime and he or she subsequently is
convicted of committing another such crime, the person will be subject to the
minimum or increased penalties provided under current law. As with repeaters and
persistent repeaters, a person's delinquency adjudications can no longer be
considered after a person reaches the age of 25; instead, a person 25 years of age or
older will be subject to the minimum or increased penalties for a serious sex crime,
a serious violent crime or a child sex crime only if he or she satisfies the requirements
under current law.
For further information see the state fiscal estimate, which will be printed as
an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB291, s. 1
1Section
1. 302.11 (1m) of the statutes is amended to read:
AB291,3,42
302.11
(1m) An inmate serving a life term is not entitled to mandatory release.
3Except as provided in ss. 939.62 (2m)
(c) and 973.014, the parole commission may
4parole the inmate as specified in s. 304.06 (1).
AB291, s. 2
5Section
2. 303.065 (1) of the statutes is amended to read:
AB291,3,116
303.065
(1) The department may grant work release privileges to any person
7incarcerated within the state prisons, except that no person serving a life sentence
8may be considered for work release until he or she has reached parole eligibility
9under s. 304.06 (1) (b) or 973.014 (1) (a) or (b), whichever is applicable, and no person
10serving a life sentence under s. 939.62 (2m)
(c) or 973.014 (1) (c) may be considered
11for work release.
AB291, s. 3
12Section
3. 304.02 (5) of the statutes is amended to read:
AB291,3,1513
304.02
(5) Notwithstanding subs. (1) to (3), a prisoner who is serving a life
14sentence under s. 939.62 (2m)
(c) or 973.014 (1) (c) is not eligible for release to parole
15supervision under this section.
AB291, s. 4
16Section
4. 304.06 (1) (b) of the statutes is amended to read:
AB291,4,517
304.06
(1) (b) Except as provided in sub. (1m) or s. 302.045 (3), 961.49 (2) or
18973.0135, the parole commission may parole an inmate of the Wisconsin state
19prisons or any felon or any person serving at least one year or more in a county house
20of correction or a county reforestation camp organized under s. 303.07, when he or
21she has served 25% of the sentence imposed for the offense, or 6 months, whichever
22is greater. Except as provided in s. 939.62 (2m)
(c) or 973.014, the parole commission
23may parole an inmate serving a life term when he or she has served 20 years, as
24modified by the formula under s. 302.11 (1) and subject to extension using the
25formulas under s. 302.11 (2). The person serving the life term shall be given credit
1for time served prior to sentencing under s. 973.155, including good time under s.
2973.155 (4). The secretary may grant special action parole releases under s. 304.02.
3The department or the parole commission shall not provide any convicted offender
4or other person sentenced to the department's custody any parole eligibility or
5evaluation until the person has been confined at least 60 days following sentencing.
AB291, s. 5
6Section
5. 304.071 (2) of the statutes is amended to read:
AB291,4,87
304.071
(2) If a prisoner is not eligible for parole under s. 939.62 (2m)
(c), 961.49
8(2), 973.014 (1) (c) or 973.032 (5), he or she is not eligible for parole under this section.
AB291, s. 6
9Section
6. 938.396 (2) (cm) of the statutes is created to read:
AB291,4,1710
938.396
(2) (cm) Upon request of a court of criminal jurisdiction or a district
11attorney to review court records for the purpose of investigating and determining
12whether a person is a repeater under s. 939.62 (2) (a) 2. or 4. or a persistent repeater
13under s. 939.62 (2m) (b) 2. or whether a person is subject to increased penalties under
14s. 939.623 (3), 939.624 (3) or 939.626 (2m), the court assigned to exercise jurisdiction
15under this chapter and ch. 48 shall open for inspection by authorized representatives
16of the requester the records of the court relating to any juvenile who has been
17adjudicated delinquent for an act that would be a felony if committed by an adult.
AB291, s. 7
18Section
7. 939.62 (2) of the statutes is renumbered 939.62 (2) (a) (intro.) and
19amended to read:
AB291,4,2020
939.62
(2) (a) (intro.) The actor is a repeater if
one of the
following applies:
AB291,4,23
211. The actor was convicted of a felony during the 5-year period immediately
22preceding the commission of the crime for which the actor presently is being
23sentenced
, or if the.
AB291,5,3
13. The actor was convicted of a misdemeanor on 3 separate occasions during
2that same period, which convictions the 5-year period immediately preceding the
3commission of the crime for which the actor presently is being sentenced.
AB291,5,10
4(b) To count as an adjudication or conviction under par. (a), the adjudication or
5conviction must remain of record and unreversed. It is immaterial that
disposition
6or sentence was stayed, withheld or suspended, or that the actor was pardoned,
7unless such pardon was granted on the ground of innocence. In computing the
8preceding 5-year period
under par. (a), time which the actor spent in actual
9confinement
under a juvenile dispositional order or serving a criminal sentence shall
10be excluded.
AB291, s. 8
11Section
8. 939.62 (2) (a) 2. of the statutes is created to read:
AB291,5,1512
939.62
(2) (a) 2. During the 5-year period immediately preceding the
13commission of the crime for which the actor is presently being sentenced, the actor
14was adjudicated delinquent for an act that if committed by an adult in this state
15would be a felony.
AB291, s. 9
16Section
9. 939.62 (2) (a) 4. of the statutes is created to read:
AB291,5,2117
939.62
(2) (a) 4. During the 5-year period immediately preceding the
18commission of the crime for which the actor is presently being sentenced, the actor
19was adjudicated delinquent on one occasion for an act that if committed by an adult
20in this state would be a misdemeanor and was also convicted of a misdemeanor on
212 separate occasions.
AB291, s. 10
22Section
10. 939.62 (2m) (b) of the statutes is renumbered 939.62 (2m) (b)
23(intro.) and amended to read:
AB291,5,2524
939.62
(2m) (b) (intro.) The actor is a persistent repeater if
he or she one of the
25following applies:
AB291,6,6
11. The actor has been convicted of a serious felony on 2 or more separate
2occasions at any time preceding the serious felony for which he or she presently is
3being sentenced under ch. 973, which convictions remain of record and unreversed
4and,
that of the 2 or more previous convictions, at least one conviction
must have 5occurred before the date of violation of at least one of the other felonies for which the
6actor was previously convicted.
It
AB291,6,10
7(bm) For purposes of counting a conviction or adjudication under par. (b), it is
8immaterial that the sentence
or disposition for a previous conviction
or for the
9adjudication was stayed, withheld or suspended, or that
he or she the actor was
10pardoned, unless the pardon was granted on the ground of innocence.
The
AB291,6,13
11(c) If the actor is a persistent repeater, the term of imprisonment for the felony
12for which the persistent repeater presently is being sentenced under ch. 973 is life
13imprisonment without the possibility of parole.
AB291, s. 11
14Section
11. 939.62 (2m) (b) 2. of the statutes is created to read:
AB291,6,2415
939.62
(2m) (b) 2. At any time preceding the serious felony for which he or she
16presently is being sentenced under ch. 973, the actor has on one occasion been
17adjudicated delinquent for an act that if committed by an adult in this state would
18be a serious felony and, on a separate occasion, has been convicted of a serious felony.
19The violation for which the actor was adjudicated delinquent must have occurred
20before the date of violation of the felony for which the actor was convicted, and both
21the adjudication and conviction must remain of record and unreversed. This
22subdivision does not apply if the actor was 25 years of age or older at the time of the
23commission of the crime for which the actor presently is being sentenced under ch.
24973.
AB291, s. 12
25Section
12. 939.62 (2m) (d) of the statutes is amended to read:
AB291,7,6
1939.62
(2m) (d) If a prior conviction
or adjudication is being considered as being
2covered under par. (a) 4. as comparable to a felony specified under par. (a) 1., 2. or
33., the conviction
or adjudication may be counted as a prior conviction
or adjudication 4under par. (b) only if the court determines, beyond a reasonable doubt, that the
5violation relating to that conviction
or adjudication would constitute a felony
6specified under par. (a) 1., 2. or 3. if committed by an adult in this state.
AB291, s. 13
7Section
13. 939.62 (3) (a) of the statutes is amended to read:
AB291,7,128
939.62
(3) (a) In case of crimes committed in this state, the terms do not include
9motor vehicle offenses under chs. 341 to 349 and
, except as provided in subs. (2) (a)
102. and 4. and (2m) (b) 2., offenses handled through proceedings in the court assigned
11to exercise jurisdiction under chs. 48 and 938, but otherwise have the meanings
12designated in s. 939.60.
AB291, s. 14
13Section
14. 939.62 (3) (b) of the statutes is amended to read:
AB291,7,2214
939.62
(3) (b) In case of crimes committed in other jurisdictions, the terms do
15not include those crimes which are equivalent to motor vehicle offenses under chs.
16341 to 349 or
, except as provided in subs. (2) (a) 2. and 4. and (2m) (b) 2., to offenses
17handled through proceedings in the court assigned to exercise jurisdiction under chs.
1848 and 938. Otherwise, felony means a crime which under the laws of that
19jurisdiction carries a prescribed maximum penalty of imprisonment in a prison or
20penitentiary for one year or more. Misdemeanor means a crime which does not carry
21a prescribed maximum penalty sufficient to constitute it a felony and includes crimes
22punishable only by a fine.
AB291, s. 15
23Section
15. 939.623 (3) of the statutes is created to read:
AB291,8,324
939.623
(3) (a) If a person has been adjudicated delinquent for one or more
25serious sex crimes and subsequently commits a serious sex crime, the court shall
1sentence the person to not less than 5 years' imprisonment, but otherwise the
2penalties for the crime apply, subject to any applicable penalty enhancement. The
3court shall not place the person on probation.
AB291,8,54
(b) Paragraph (a) does not apply if the person was 25 years of age or older at
5the time he or she committed the subsequent serious sex crime.
AB291,8,76
(c) If a person is sentenced under par. (a), a court may not also impose an
7enhanced sentence under sub. (2).
AB291, s. 16
8Section
16. 939.624 (3) of the statutes is created to read:
AB291,8,139
939.624
(3) (a) If a person has been adjudicated delinquent for one or more
10serious violent crimes or crimes punishable by life imprisonment and subsequently
11commits a serious violent crime, the court shall sentence the person to not less than
125 years' imprisonment, but otherwise the penalties for the crime apply, subject to any
13applicable penalty enhancement. The court shall not place the person on probation.
AB291,8,1514
(b) Paragraph (a) does not apply if the person was 25 years of age or older at
15the time he or she committed the subsequent serious violent crime.