SB357: Bill Text

SB357,166,8 783.07 Fine or imprisonment. Whenever a peremptory mandamus shall be is directed to any public officer, body, board or person, commanding the performance of any duty specially enjoined by law, if it shall appear to the court that such and the officer or person or any member of such the body or board has, without just excuse, refused or neglected to perform the duty so enjoined the court may impose a fine, not exceeding $5,000, upon every such, the officer, person or member of such the body or board, or sentence the officer, person or member to imprisonment for not more than 7 years and 6 months is guilty of a Class H felony.

SB357, s. 387 Section 387. 801.50 (5) of the statutes is amended to read:

SB357,166,15 801.50 (5) Venue of an action for certiorari to review a probation, extended supervision or parole revocation, a denial by a program review committee under s. 302.113 (9g) of a petition for modification of a bifurcated sentence or a refusal of parole by certiorari shall be the county in which the relator was last convicted of an offense for which the relator was on probation, extended supervision or parole or for which the relator is currently incarcerated.

SB357, s. 388 Section 388. 801.50 (5c) of the statutes is created to read:

SB357,166,21 801.50 (5c) Venue of an action for certiorari brought by the department of corrections under s. 302.113 (9) (d) or 302.114 (9) (d) to review a decision to not revoke extended supervision shall be in the county in which the person on extended supervision was convicted of the offense for which he or she is on extended supervision.

SB357, s. 389 Section 389. 814.04 (intro.) of the statutes is amended to read:

SB357,167,2 814.04 Items of costs. (intro.) Except as provided in ss. 93.20, 100.30 (5m), 106.04 (6) (i) and (6m) (a), 115.80 (9), 769.313, 814.025, 814.245, 895.035 (4), 895.10 (3), 895.75 (3), 895.77 (2), 895.79 (3), 895.80 (3), 943.212 (2) (b), 943.245 (2) (d) and 943.51 (2) (b), when allowed, costs shall be as follows:

SB357, s. 390 Section 390. 814.245 (2) (d) of the statutes is amended to read:

SB357,167,5 814.245 (2) (d) "State agency" does not include the public intervenor or citizens utility board.

SB357, s. 391 Section 391. 895.10 of the statutes is created to read:

SB357,167,7 895.10 Tobacco product agreement. (1) Definitions. In this section:

SB357,167,9 (a) "Adjusted for inflation" means increased in accordance with the formula for an inflation adjustment set forth in exhibit C of the master settlement agreement.

SB357,167,15 (b) "Affiliate" means a person who directly or indirectly owns or controls, is owned or controlled by or is under common ownership or control with, another person. Solely for the purposes of this definition, "owns", "is owned" and "ownership" mean ownership of an equity interest, or the equivalent thereof, of 10% or more, and the term "person" means an individual, partnership, committee, association, corporation or any other organization or group of persons.

SB357,167,17 (c) "Allocable share" means allocable share as that term is defined in the master settlement agreement.

SB357,167,20 (d) 1. "Cigarette" means any product that contains nicotine, is intended to be burned or heated under ordinary conditions of use, and consists of or contains any of the following:

SB357,167,22 a. Any roll of tobacco wrapped in paper or in any substance not containing tobacco.

SB357,167,25 b. Tobacco, in any form, that is functional in the product, which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette.

SB357,168,4 c. Any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette described in subd. 1. a.

SB357,168,7 2. The term "cigarette" includes "roll-your-own" tobacco, which is tobacco that, because of its appearance, type, packaging or labeling, is suitable for use and likely to be offered to, or purchased by, consumers as tobacco for making cigarettes.

SB357,168,9 3. For purposes of this definition of "cigarette", 0.09 ounces of "roll-your-own" tobacco constitutes one individual "cigarette".

SB357,168,12 (e) "Master settlement agreement" means the settlement agreement and related documents entered into on November 23, 1998, by this state and the leading U.S. tobacco product manufacturers.

SB357,168,19 (f) "Qualified escrow fund" means an escrow arrangement with a federally or state chartered financial institution having no affiliation with any tobacco product manufacturer and having assets of at least $1,000,000,000, which arrangement requires that the financial institution hold the escrowed funds' principal for the benefit of releasing parties and prohibits the tobacco product manufacturer placing the funds into escrow from using, accessing or directing the use of the funds' principal except as is consistent with sub. (2) (b) 2.

SB357,168,21 (g) "Released claims" means released claims as that term is defined in the master settlement agreement.

SB357,168,23 (h) "Releasing parties" means releasing parties as that term is defined in the master settlement agreement.

SB357,169,3 (i) 1. "Tobacco product manufacturer" means an entity that after the effective date of this subdivision .... [revisor inserts date], directly, and not exclusively through any affiliate:

SB357,169,15 a. Manufactures cigarettes anywhere, which the manufacturer intends to be sold in the United States, including cigarettes intended to be sold in the United States through an importer, except that "tobacco product manufacturer does not include an entity that manufactures cigarettes that it intends to be sold in the United States if those cigarettes are sold in the United States exclusively through an importer that is an original participating manufacturer, as defined in the master settlement agreement, that will be responsible for the payments under the master settlement agreement with respect to those cigarettes as a result of the provisions of subsection II (mm) of the master settlement agreement and that pays the taxes specified in subsection II (z) of the master settlement agreement, and the manufacturer of those cigarettes does not market or advertise those cigarettes in the United States;

SB357,169,18 b. Is the first purchaser anywhere for resale in the United States, of cigarettes manufactured anywhere that the manufacturer did not intend to be sold in the United States; or

SB357,169,19 c. Becomes a successor of an entity described in subd. 1. a. or b.

SB357,169,21 2. "Tobacco product manufacturer" does not include an affiliate of a tobacco product manufacturer unless the affiliate itself falls within subd. 1. a., b. or c.

SB357,170,2 (j) "Units sold" means the number of individual cigarettes sold in this state by the applicable tobacco product manufacturer, whether directly or through a distributor, retailer or similar intermediary, during the year in question, as measured by the excise taxes collected by this state on containers of "roll-your-own" tobacco and on packs of cigarettes bearing the excise tax stamp of this state.

SB357,170,6 (2) Requirements. Any tobacco product manufacturer selling cigarettes to consumers within this state, whether directly or through a distributor, retailer or similar intermediary, after the effective date of this subsection .... [revisor inserts date], shall do one of the following:

SB357,170,9 (a) Become a participating manufacturer, as that term is defined in section II (jj) of the master settlement agreement, and generally perform its financial obligations under the master settlement agreement; or

SB357,170,11 (b) 1. Place into a qualified escrow fund by April 15 of the year following the listed year the following amounts, as those amounts are adjusted for inflation:

SB357,170,13 a. For 1999: $.0094241 per unit sold after the effective date of this subdivision paragraph .... [revisor inserts date].

SB357,170,14 b. For 2000: $.0104712 per unit sold.

SB357,170,15 c. For each of 2001 and 2002: $.0136125 per unit sold.

SB357,170,16 d. For each of 2003 to 2006: $.0167539 per unit sold.

SB357,170,17 e. For each year after 2006: $.0188482 per unit sold.

SB357,170,21 2. A tobacco product manufacturer that places money into escrow under subd. 1. shall receive the interest or other appreciation on that money as earned. The money placed into escrow shall be released from escrow only under the following circumstances:

SB357,171,2 a. To pay a judgment or settlement on any released claim brought against that tobacco product manufacturer by this state or any releasing party located or residing in this state. Moneys shall be released from escrow under this paragraph in the order in which they were placed into escrow and only to the extent and at the time necessary to make payments required under the judgment or settlement.

SB357,171,11 b. To the extent that a tobacco product manufacturer establishes that the amount it was required to place into escrow in a particular year was greater than the state's allocable share of the total payments that the manufacturer would have been required to make in that year under the master settlement agreement had it been a participating manufacturer, as those payments are determined under section IX (i) (2) of the master settlement agreement and before any of the adjustments or offsets described in section IX (i) (3) of that agreement other than the inflation adjustment, the excess shall be released from escrow and revert to that tobacco product manufacturer.

SB357,171,14 c. To the extent not released from escrow under subd. 2. a. or b., money shall be released from escrow and revert to the tobacco product manufacturer twenty-five years after the date on which the money was placed into escrow.

SB357,171,21 3. Each tobacco product manufacturer that elects to place money into escrow under subd. 1. shall annually certify to the attorney general by each April 15 that the tobacco product manufacturer is in compliance with subds. 1. and 2. The attorney general may bring a civil action on behalf of the state against any tobacco product manufacturer that fails to place into escrow the moneys required under this subsection. Any tobacco product manufacturer that fails in any year to place into escrow the money required under subd. 1. shall:

SB357,172,2 a. Be required within 15 days to place money into escrow as shall bring the tobacco product manufacturer into compliance with this subsection. The court, upon a finding of violation of this paragraph, may impose a civil penalty in an amount not to exceed 5% of the amount improperly withheld from escrow per day of the violation and in a total amount not to exceed 100% of the original amount improperly withheld from escrow.

SB357,172,8 b. In the case of a knowing violation, be required within 15 days to place such funds into escrow as shall bring it into compliance with this subsection. The court, upon a finding of a knowing violation of this paragraph, may impose a civil penalty in an amount not to exceed 15% of the amount improperly withheld from escrow per day of the violation and in a total amount not to exceed 300% of the original amount improperly withheld from escrow.

SB357,172,11 c. In the case of a second or subsequent knowing violation, be prohibited from selling cigarettes to consumers within this state directly or through a distributor, retailer or similar intermediary for a period not to exceed 2 years.

SB357,172,13 4. Each failure to make an annual deposit required under this subsection shall constitute a separate violation.

SB357,172,16 (3) Awards of costs and attorney fees. If the attorney general is the prevailing party in an action under this section, the court shall award the attorney general costs and, notwithstanding s. 814.04 (1), reasonable attorney fees.

SB357,172,19 (4) Promulgation of rules. The department of revenue shall promulgate the rules necessary to ascertain the amount of Wisconsin excise tax paid on the cigarettes of each tobacco product manufacturer for each year.

SB357, s. 392 Section 392. 911.01 (4) (c) of the statutes is amended to read:

SB357,173,2 911.01 (4) (c) Miscellaneous proceedings. Proceedings for extradition or rendition; sentencing, or granting or revoking probation, modification of a bifurcated sentence under s. 302.113 (9g), issuance of arrest warrants, criminal summonses and search warrants; proceedings under s. 971.14 (1) (c); proceedings with respect to pretrial release under ch. 969 except where habeas corpus is utilized with respect to release on bail or as otherwise provided in ch. 969.

SB357, s. 393 Section 393. 938.208 (1) (a) of the statutes is amended to read:

SB357,173,8 938.208 (1) (a) Probable cause exists to believe that the juvenile has committed a delinquent act that would be a felony under s. 940.01, 940.02, 940.03, 940.05, 940.19 (2) to (6), 940.21, 940.225 (1), 940.31, 941.20 (3), 943.02 (1), 943.23 (1g), (1m) or (1r), 943.32 (2), 947.013 (1t), (1v) or (1x), 948.02 (1) or (2), 948.025 or 948.03 if committed by an adult.

SB357, s. 394 Section 394. 938.34 (4h) (a) of the statutes is amended to read:

SB357,173,16 938.34 (4h) (a) The juvenile is 14 years of age or over and has been adjudicated delinquent for committing a violation of s. 939.31, 939.32 (1) (a), 940.03, 940.21, 940.225 (1), 940.305, 940.31, 941.327 (2) (b) 4., 943.02, 943.10 (2), 943.23 (1g), (1m) or (1r), 943.32 (2), 948.02 (1), 948.025, (1) or 948.30 (2), 948.35 (1) (b) or 948.36 or the juvenile is 10 years of age or over and has been adjudicated delinquent for attempting or committing a violation of s. 940.01 or for committing a violation of 940.02 or 940.05.

SB357, s. 395 Section 395. 938.34 (4m) (b) 1. of the statutes is amended to read:

SB357,173,21 938.34 (4m) (b) 1. The juvenile has committed a delinquent act that would be a felony under s. 940.01, 940.02, 940.03, 940.05, 940.19 (2) to (6), 940.21, 940.225 (1), 940.31, 941.20 (3), 943.02 (1), 943.23 (1g), (1m) or (1r), 943.32 (2), 947.013 (1t), (1v) or (1x), 948.02 (1) or (2), 948.025 or 948.03 if committed by an adult.

SB357, s. 396 Section 396. 938.355 (2d) (b) 3. of the statutes is amended to read:

SB357,174,5 938.355 (2d) (b) 3. That the parent has committed a violation of s. 940.19 (3), 1997 stats., or s. 940.19 (2), (3), (4) or (5), 940.225 (1) or (2), 948.02 (1) or (2), 948.025 or 948.03 (2) (a) or (3) (a) or a violation of the law of any other state or federal law, if that violation would be a violation of s. 940.19 (2), (3), (4) or (5), 940.225 (1) or (2), 948.02 (1) or (2), 948.025 or 948.03 (2) (a) or (3) (a) if committed in this state, and that the violation resulted in great bodily harm, as defined in s. 938.22 939.22 (14), or in substantial bodily harm, as defined in s. 938.22 939.22 (38), to the juvenile or another child of the parent.

SB357, s. 397 Section 397. 938.355 (4) (b) of the statutes is amended to read:

SB357,174,15 938.355 (4) (b) An order under s. 938.34 (4d), (4h) or (4m) for which a juvenile has been adjudicated delinquent is subject to par. (a), except that the judge may make an order under s. 938.34 (4d) or (4m) apply for up to 2 years or until the juvenile's 18th birthdate, whichever is earlier and the judge shall make an order under s. 938.34 (4h) apply for 5 years, if the juvenile is adjudicated delinquent for committing a violation of s. 943.10 (2) or for committing an act that would be punishable as a Class B or C felony if committed by an adult, or until the juvenile reaches 25 years of age, if the juvenile is adjudicated delinquent for committing an act that would be punishable as a Class A felony if committed by an adult.

SB357, s. 398 Section 398. 938.78 (3) of the statutes, as affected by 1999 Wisconsin Act 9, is amended to read:

SB357,175,12 938.78 (3) If a juvenile adjudged delinquent under s. 48.12, 1993 stats., or s. 938.12 or found to be in need of protection or services under s. 48.13 (12), 1993 stats., or s. 48.13 (14), 1993 stats., or s. 938.13 (12) or (14) on the basis of a violation of s. 943.23 (1m) or (1r), 1997 stats., or s. 941.10, 941.11, 941.20, 941.21, 941.23, 941.235, 941.237, 941.24, 941.26, 941.28, 941.295, 941.298, 941.30, 941.31, 941.32, 941.325, 943.02, 943.03, 943.04, 943.10 (2) (a), 943.23 (1g), (1m) or (1r), 943.32 (2), 948.02, 948.025, 948.03, 948.05, 948.055, 948.60, 948.605 or 948.61 or any crime specified in ch. 940 has escaped from a secured correctional facility, child caring institution, secured group home, inpatient facility, as defined in s. 51.01 (10), secure detention facility or juvenile portion of a county jail, or from the custody of a peace officer or a guard of such a facility, institution or jail, or has been allowed to leave a secured correctional facility, child caring institution, secured group home, inpatient facility, secure detention facility or juvenile portion of a county jail for a specified time period and is absent from the facility, institution, home or jail for more than 12 hours after the expiration of the specified period, the department or county department having supervision over the juvenile may release the juvenile's name and any information about the juvenile that is necessary for the protection of the public or to secure the juvenile's return to the facility, institution, home or jail. The department of corrections shall promulgate rules establishing guidelines for the release of the juvenile's name or information about the juvenile to the public.

SB357, s. 399 Section 399. 939.22 (21) (d) of the statutes is amended to read:

SB357,175,15 939.22 (21) (d) Battery, substantial battery or aggravated battery, as prohibited in s. 940.19 or 940.195.

SB357, s. 400 Section 400. 939.30 (1) of the statutes is amended to read:

SB357,175,20 939.30 (1) Except as provided in sub. (2) and ss. 948.35 and s. 961.455, whoever, with intent that a felony be committed, advises another to commit that crime under circumstances that indicate unequivocally that he or she has the intent is guilty of a Class D H felony.

SB357, s. 401 Section 401. 939.30 (2) of the statutes is amended to read:

SB357,175,24 939.30 (2) For a solicitation to commit a crime for which the penalty is life imprisonment, the actor is guilty of a Class C F felony. For a solicitation to commit a Class E I felony, the actor is guilty of a Class E I felony.

SB357, s. 402 Section 402. 939.32 (1) (intro.) of the statutes is amended to read:

SB357,176,4 939.32 (1) Generally. (intro.) Whoever attempts to commit a felony or a crime specified in s. 940.19, 940.195 or 943.20 may be fined or imprisoned or both not to exceed one-half the maximum penalty for the completed crime; as provided under sub. (1g), except:

SB357, s. 403 Section 403. 939.32 (1) (b) of the statutes is repealed.

SB357, s. 404 Section 404. 939.32 (1) (bm) of the statutes is created to read:

SB357,176,9 939.32 (1) (bm) Whoever attempts to commit a Class I felony, other than one to which a penalty enhancement statute listed in s. 973.01 (2) (c) 2. a. or b. is being applied, is guilty of a Class A misdemeanor.

SB357, s. 405 Section 405. 939.32 (1g) of the statutes is created to read:

SB357,176,12 939.32 (1g) Maximum penalty. The maximum penalty for an attempt to commit a crime that is punishable under sub. (1) (intro.) is as follows:

SB357,176,13 (a) The maximum fine is one-half of the maximum fine for the completed crime.

SB357,176,16 (b) 1. If s. 939.62 is not being applied, the maximum term of imprisonment is one-half of the maximum term of imprisonment, as increased by any penalty enhancement statute listed in s. 973.01 (2) (c) 2. a. and b., for the completed crime.

SB357,176,18 2. If s. 939.62 is being applied, the maximum term of imprisonment is determined by the following method:

SB357,176,21 a. Multiplying by one-half the maximum term of imprisonment, as increased by any penalty enhancement statute listed in s. 973.01 (2) (c) 2. a. and b., for the completed crime.

SB357,176,22 b. Applying s. 939.62 to the product under subd. 2. a.

SB357, s. 406 Section 406. 939.32 (1m) of the statutes is created to read:

SB357,177,3 939.32 (1m) Bifurcated sentences. If the court imposes a bifurcated sentence under s. 973.01 (1) for an attempt to commit a crime that is punishable under sub. (1) (intro.), the following requirements apply:

SB357,177,9 (a) Maximum term of confinement for attempt to commit classified felony. 1. Subject to the minimum term of extended supervision required under s. 973.01 (2) (d), if the crime is a classified felony and s. 939.62 is not being applied, the maximum term of confinement in prison is one-half of the maximum term of confinement in prison specified in s. 973.01 (2) (b), as increased by any penalty enhancement statute listed in s. 973.01 (2) (c) 2. a. and b., for the classified felony.

SB357,177,13 2. Subject to the minimum term of extended supervision required under s. 973.01 (2) (d), if the crime is a classified felony and s. 939.62 is being applied, the court shall determine the maximum term of confinement in prison by the following method:

SB357,177,16 a. Multiplying by one-half the maximum term of confinement in prison specified in s. 973.01 (2) (b), as increased by any penalty enhancement statutes listed in s. 973.01 (2) (c) 2. a. and b., for the classified felony.

SB357,177,17 b. Applying s. 939.62 to the product under subd. 2. a.

SB357,177,21 (b) Maximum term of extended supervision for attempt to commit classified felony. The maximum term of extended supervision for an attempt to commit a classified felony is one-half of the maximum term of extended supervision for the completed crime under s. 973.01 (2) (d).

SB357,178,2 (c) Maximum term of confinement for attempt to commit unclassified felony or misdemeanor. The court shall determine the maximum term of confinement in prison for an attempt to commit a crime other than a classified felony by applying s. 973.01 (2) (b) 10. to the maximum term of imprisonment calculated under sub. (1g) (b).