SB357: Bill Text

SB357, s. 916 Section 916. 973.01 (2) (intro.) of the statutes is amended to read:

SB357,267,24 973.01 (2) Structure of bifurcated sentences. (intro.) The court shall ensure that a A bifurcated sentence is a sentence that consists of a term of confinement in prison followed by a term of extended supervision under s. 302.113. The total length of a bifurcated sentence equals the length of the term of confinement in prison plus the length of the term of extended supervision. A bifurcated sentence imposed under sub. (1) complies this section shall comply with all of the following:

SB357, s. 917 Section 917. 973.01 (2) (a) of the statutes is amended to read:

SB357,268,6 973.01 (2) (a) Total length of bifurcated sentence. Except as provided in par. (c), the total length of the bifurcated sentence may not exceed the maximum period of imprisonment for the specified in s. 939.50 (3), if the crime is a classified felony, or the maximum term of imprisonment provided by statute for the crime, if the crime is not a classified felony, plus additional imprisonment authorized by any applicable penalty enhancement statutes.

SB357, s. 918 Section 918. 973.01 (2) (b) (intro.) of the statutes is amended to read:

SB357,268,11 973.01 (2) (b) Imprisonment portion of bifurcated sentence. (intro.) The portion of the bifurcated sentence that imposes a term of confinement in prison may not be less than one year, subject to any minimum sentence prescribed for the felony, and, except as provided in par. (c), may not exceed whichever of the following is applicable:

SB357, s. 919 Section 919. 973.01 (2) (b) 2. of the statutes is repealed.

SB357, s. 920 Section 920. 973.01 (2) (b) 3. of the statutes is amended to read:

SB357,268,15 973.01 (2) (b) 3. For a Class C felony, the term of confinement in prison may not exceed 10 25 years.

SB357, s. 921 Section 921. 973.01 (2) (b) 4. of the statutes is amended to read:

SB357,268,18 973.01 (2) (b) 4. For a Class D felony, the term of confinement in prison may not exceed 5 15 years.

SB357, s. 922 Section 922. 973.01 (2) (b) 5. of the statutes is amended to read:

SB357,268,21 973.01 (2) (b) 5. For a Class E felony, the term of confinement in prison may not exceed 2 10 years.

SB357, s. 923 Section 923. 973.01 (2) (b) 6. of the statutes is renumbered 973.01 (2) (b) 10. and amended to read:

SB357,269,3 973.01 (2) (b) 10. For any felony crime other than a felony specified in subds. 1. to 5. 9., the term of confinement in prison may not exceed 75% of the total length of the bifurcated sentence.

SB357, s. 924 Section 924. 973.01 (2) (b) 6m. of the statutes is created to read:

SB357,269,6 973.01 (2) (b) 6m. For a Class F felony, the term of confinement in prison may not exceed 7 years and 6 months.

SB357, s. 925 Section 925. 973.01 (2) (b) 7. of the statutes is created to read:

SB357,269,9 973.01 (2) (b) 7. For a Class G felony, the term of confinement in prison may not exceed 5 years.

SB357, s. 926 Section 926. 973.01 (2) (b) 8. of the statutes is created to read:

SB357,269,12 973.01 (2) (b) 8. For a Class H felony, the term of confinement in prison may not exceed 3 years.

SB357, s. 927 Section 927. 973.01 (2) (b) 9. of the statutes is created to read:

SB357,269,15 973.01 (2) (b) 9. For a Class I felony, the term of confinement in prison may not exceed one year and 6 months.

SB357, s. 928 Section 928. 973.01 (2) (c) of the statutes is renumbered 973.01 (2) (c) 1. and amended to read:

SB357,269,23 973.01 (2) (c) 1. The Subject to the minimum period of extended supervision required under par. (d), the maximum term of confinement in prison specified in par. (b) may be increased by any applicable penalty enhancement statute. If the maximum term of confinement in prison specified in par. (b) is increased under this paragraph, the total length of the bifurcated sentence that may be imposed is increased by the same amount.

SB357, s. 929 Section 929. 973.01 (2) (c) 2. of the statutes is created to read:

SB357,270,3 973.01 (2) (c) 2. If more than one of the following penalty enhancement statutes apply to a crime, the court shall apply them in the order listed in calculating the maximum term of imprisonment for that crime:

SB357,270,4 a. Sections 939.621, 939.632, 939.645, 961.46 and 961.49.

SB357,270,5 b. Section 939.63.

SB357,270,6 c. Section 939.62 or 961.48.

SB357, s. 930 Section 930. 973.01 (2) (d) of the statutes is renumbered 973.01 (2) (d) (intro.) and amended to read:

SB357,270,13 973.01 (2) (d) Minimum and maximum term of extended supervision. (intro.) The term of extended supervision that follows the term of confinement in prison may not be less than 25% of the length of the term of confinement in prison imposed under par. (b). and, for a classified felony, may not exceed whichever of the following is applicable:

SB357, s. 931 Section 931. 973.01 (2) (d) 1. to 6. of the statutes are created to read:

SB357,270,16 973.01 (2) (d) 1. For a Class B felony, the term of extended supervision may not exceed 20 years.

SB357,270,18 2. For a Class C felony, the term of extended supervision may not exceed 15 years.

SB357,270,20 3. For a Class D felony, the term of extended supervision may not exceed 10 years.

SB357,270,22 4. For a Class E, F or G felony, the term of extended supervision may not exceed 5 years.

SB357,270,24 5. For a Class H felony, the term of extended supervision may not exceed 3 years.

SB357,270,25 6. For a Class I felony, the term of extended supervision may not exceed 2 years.

SB357, s. 932 Section 932. 973.01 (4) of the statutes is amended to read:

SB357,271,6 973.01 (4) No good time; extension or reduction of term of imprisonment. A person sentenced to a bifurcated sentence under sub. (1) shall serve the term of confinement in prison portion of the sentence without reduction for good behavior. The term of confinement in prison portion is subject to extension under s. 302.113 (3) and, if applicable, to reduction under s. 302.045 (3m) or 302.113 (9g).

SB357, s. 933 Section 933. 973.01 (5) of the statutes is amended to read:

SB357,271,10 973.01 (5) Other extended supervision conditions. Whenever the court imposes a bifurcated sentence under sub. (1), the court may impose conditions upon the term of extended supervision, including drug treatment under s. 973.031.

SB357, s. 934 Section 934. 973.01 (7m) of the statutes is created to read:

SB357,271,18 973.01 (7m) Modification of bifurcated sentence. A court may at any time modify a bifurcated sentence that the court previously imposed by reducing the term of confinement in prison portion of the sentence and lengthening the term of extended supervision imposed so that the total length of the bifurcated sentence originally imposed does not change. A proceeding to modify a bifurcated sentence under this subsection shall be conducted using the procedure established and the factors specified by the director of state courts under s. 758.19 (8).

SB357, s. 935 Section 935. 973.0135 (1) (b) 2. of the statutes is amended to read:

SB357,271,25 973.0135 (1) (b) 2. Any felony under s. 940.09 (1), 1997 stats., s. 943.23 (1m) or (1r), 1997 stats., s. 948.35 (1) (b) or (c), 1997 stats., or s. 948.36, 1997 stats., s. 940.01, 940.02, 940.03, 940.05, 940.09 (1) (1c), 940.16, 940.19 (5), 940.195 (5), 940.21, 940.225 (1) or (2), 940.305, 940.31, 941.327 (2) (b) 4., 943.02, 943.10 (2), 943.23 (1g), (1m) or (1r), 943.32 (2), 946.43, 948.02 (1) or (2), 948.025, 948.03 (2) (a) or (c), 948.05, 948.06, 948.07, 948.08, or 948.30 (2), 948.35 (1) (b) or (c) or 948.36.

SB357, s. 936 Section 936. 973.017 of the statutes is created to read:

SB357,272,7 973.017 Bifurcated sentences; use of guidelines; consideration of aggravating and mitigating factors. (1) Definition. In this section, "sentencing decision" means a decision as to whether to impose a bifurcated sentence under s. 973.01 or to place a person on probation and a decision as to the length of a bifurcated sentence, including the length of each component of the bifurcated sentence, the amount of a fine and the length of a term of probation.

SB357,272,11 (2) General requirement. When a court makes a sentencing decision concerning a person convicted of a criminal offense committed on or after the effective date of this subsection .... [revisor inserts date], the court shall consider all of the following:

SB357,272,16 (a) If the offense is a felony, the sentencing guidelines adopted by the sentencing commission under s. 973.30 or, if the sentencing commission has not adopted a guideline for the offense, any applicable temporary sentencing guideline adopted by the criminal penalties study committee created under 1997 Wisconsin Act 283.

SB357,272,18 (b) Any applicable mitigating factors and any applicable aggravating factors, including the aggravating factors specified in subs. (3) to (8).

SB357,272,20 (3) Aggravating factors; generally. When making a sentencing decision for any crime, the court shall consider all of the following as aggravating factors:

SB357,272,23 (a) The fact that the person committed the crime while his or her usual appearance was concealed, disguised or altered, with the intent to make it less likely that he or she would be identified with the crime.

SB357,272,25 (b) The fact that the person committed the crime using information that was disclosed to him or her under s. 301.46.

SB357,273,4 (c) The fact that the person committed the crime for the benefit of, at the direction of or in association with any criminal gang, as defined in s. 939.22 (9), with the specific intent to promote, further or assist in any criminal conduct by criminal gang members, as defined in s. 939.22 (9g).

SB357,273,7 (d) The fact that the person committed the felony while wearing a vest or other garment designed, redesigned or adapted to prevent bullets from penetrating the garment.

SB357,273,11 (e) 1. Subject to subd. 2., the fact that the person committed the felony with the intent to influence the policy of a governmental unit or to punish a governmental unit for a prior policy decision, if any of the following circumstances also applies to the felony committed by the person:

SB357,273,12 a. The person caused bodily harm, great bodily harm or death to another.

SB357,273,16 b. The person caused damage to the property of another and the total property damaged is reduced in value by $25,000 or more. For the purposes of this subd. 1. b., property is reduced in value by the amount that it would cost either to repair or to replace it, whichever is less.

SB357,273,17 c. The person used force or violence or the threat of force or violence.

SB357,273,22 2. a. In this subdivision, "labor dispute" includes any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employe.

SB357,273,24 b. Subdivision 1. does not apply to conduct arising out of or in connection with a labor dispute.

SB357,274,2 (4) Aggravating factors; serious sex crimes committed while infected with certain diseases. (a) In this subsection:

SB357,274,4 1. "HIV" means any strain of human immunodeficiency virus, which causes acquired immunodeficiency syndrome.

SB357,274,6 2. "Serious sex crime" means a violation of s. 940.225 (1) or (2), 948.02 (1) or (2) or 948.025.

SB357,274,8 3. "Sexually transmitted disease" means syphilis, gonorrhea, hepatitis B, hepatitis C or chlamydia.

SB357,274,11 4. "Significantly exposed" means sustaining a contact which carries a potential for transmission of a sexually transmitted disease or HIV by one or more of the following:

SB357,274,14 a. Transmission, into a body orifice or onto mucous membrane, of blood; semen; vaginal secretions; cerebrospinal, synovial, pleural, peritoneal, pericardial or amniotic fluid; or other body fluid that is visibly contaminated with blood.

SB357,274,18 b. Exchange, during the accidental or intentional infliction of a penetrating wound, including a needle puncture, of blood; semen; vaginal secretions; cerebrospinal, synovial, pleural, peritoneal, pericardial or amniotic fluid; or other body fluid that is visibly contaminated with blood.

SB357,274,22 c. Exchange, into an eye, an open wound, an oozing lesion, or other place where a significant breakdown in the epidermal barrier has occurred, of blood; semen; vaginal secretions; cerebrospinal, synovial, pleural, peritoneal, pericardial or amniotic fluid; or other body fluid that is visibly contaminated with blood.

SB357,274,25 (b) When making a sentencing decision concerning a person convicted of a serious sex crime, the court shall consider as an aggravating factor the fact that the serious sex crime was committed under all of the following circumstances:

SB357,275,4 1. At the time that he or she committed the serious sex crime, the person convicted of committing the serious sex crime had a sexually transmitted disease or acquired immunodeficiency syndrome or had had a positive test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV.

SB357,275,9 2. At the time that he or she committed the serious sex crime, the person convicted of committing the serious sex crime knew that he or she had a sexually transmitted disease or acquired immunodeficiency syndrome or that he or she had had a positive test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV.

SB357,275,12 3. The victim of the serious sex crime was significantly exposed to HIV or to the sexually transmitted disease, whichever is applicable, by the acts constituting the serious sex crime.

SB357,275,14 (5) Aggravating factors; violent felony committed against elder person. (a) In this subsection:

SB357,275,15 1. "Elder person" means any individual who is 62 years of age or older.

SB357,275,17 2. "Violent felony" means any felony under s. 940.19 (2), (4), (5) or (6), 940.225 (1), (2) or (3), 940.23 or 943.32.

SB357,275,21 (b) When making a sentencing decision concerning a person convicted of a violent felony, the court shall consider as an aggravating factor the fact that the victim of the violent felony was an elder person. This paragraph applies even if the person mistakenly believed that the victim had not attained the age of 62 years.

SB357,276,3 (6) Aggravating factors; child sexual assault or child abuse by certain persons. (a) In this subsection, "person responsible for the welfare the child" includes the child's parent, stepparent, guardian, foster parent or treatment foster parent; an employe of a public or private residential home, institution or agency; any other person legally responsible for the child's welfare in a residential setting; or a person employed by one who is legally responsible for the child's welfare to exercise temporary control or care for the child.

SB357,276,7 (b) When making a sentencing decision concerning a person convicted of a violation of s. 948.02 (1) or (2), 948.025 (1) or 948.03 (2) or (3), the court shall consider as an aggravating factor the fact that the person was a person responsible for the welfare of the child who was the victim of the violation.

SB357,276,12 (7) Aggravating factors; homicide or injury by intoxicated use of a vehicle. When making a sentencing decision concerning a person convicted of a violation of s. 940.09 (1) or 940.25 (1), the court shall consider as an aggravating factor the fact that, at the time of the violation, there was a minor passenger under 16 years of age or an unborn child in the person's motor vehicle.

SB357,276,15 (8) Aggravating factors; controlled substances offenses. (a) Distribution or delivery to prisoners. 1. In this paragraph, "precinct" means a place where any activity is conducted by a prison, jail or house of correction.

SB357,276,20 2. When making a sentencing decision concerning a person convicted of violating s. 961.41 (1) or (1m), the court shall consider as an aggravating factor the fact that the violation involved delivering, distributing or possessing with intent to deliver or distribute a controlled substance or controlled substance analog to a prisoner within the precincts of any prison, jail or house of correction.

SB357,277,2 (b) Distribution or delivery on public transit vehicles. When making a sentencing decision concerning a person convicted of violating s. 961.41 (1) or (1m), the court shall consider as an aggravating factor the fact that the violation involved delivering, distributing or possessing with intent to deliver or distribute a controlled substance included in schedule I or II or a controlled substance analog of any controlled substance included in schedule I or II and that the person knowingly used a public transit vehicle during the violation.

SB357,277,7 (9) Aggravating factors not an element of the crime. The aggravating factors listed in this section are not elements of any crime. A prosecutor is not required to charge any aggravating factor or otherwise allege the existence of an aggravating factor in any pleading for a court to consider the aggravating factor when making a sentencing decision.

SB357,277,14 (10) Use of guidelines; no right to or basis for appeal. The requirement under sub. (2) (a) that a court consider sentencing guidelines adopted by the sentencing commission or the criminal penalties study committee does not require a court to make a sentencing decision that is within any range or consistent with a recommendation specified in the guidelines, and there is no right to appeal a court's sentencing decision based on the court's decision to depart in any way from any guideline.

SB357,277,20 (11) Required findings of fact. The court shall make explicit findings of fact on the record to support each element of its sentencing decision, including its decision as to whether to impose a bifurcated sentence under s. 973.01 or to place a person on probation and its decision as to the length of a bifurcated sentence, including the length of each component of the bifurcated sentence, the amount of a fine and the length of a term of probation.

SB357,277,25 (12) Standard of review on appeal. In an appeal from a court's sentencing decision, the appellate court shall reverse the sentencing decision if it determines that the sentencing court erroneously exercised its discretion in making the sentencing decision or there is not substantial evidence in the record to support the sentencing decision.