SB357: Bill Text

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.

SB357, s. 937 Section 937. 973.03 (3) (e) 1. and 2. of the statutes are amended to read:

SB357,278,2 973.03 (3) (e) 1. A crime which is a Class A or, B or C felony.

SB357,278,4 2. A crime which is a Class C D, E, F or G felony listed in s. 969.08 (10) (b), but not including any crime specified in s. 943.10.

SB357, s. 938 Section 938. 973.03 (3) (e) 3. of the statutes is repealed.

SB357, s. 939 Section 939. 973.031 of the statutes is created to read:

SB357,278,14 973.031 Court-ordered drug treatment. Whenever the court imposes a sentence or places a person on probation for any offense committed on or after July 1, 2000, the court may order the person to participate in a drug treatment program as a condition of probation or, in the case of a person sentenced under s. 973.01, while the person is in prison or as a condition of extended supervision or both. The court may order the department to pay for the cost of drug treatment under this section from the appropriation under s. 20.410 (1) (a) for persons in jail or prison or under s. 20.410 (1) (b) for persons on probation or extended supervision.

SB357, s. 940 Section 940. 973.032 (4) (c) 2. of the statutes is amended to read:

SB357,278,18 973.032 (4) (c) 2. The person is sentenced for the escape under s. 946.42 (4) (b) to a sentence of imprisonment concurrent with the sentence to the intensive sanctions program.

SB357, s. 941 Section 941. 973.075 (1) (b) 1m. e. of the statutes is amended to read:

SB357,278,21 973.075 (1) (b) 1m. e. To cause more than $1,000 $2,000 worth of criminal damage to cemetery property in violation of s. 943.01 (2) (d) or 943.012.

SB357, s. 942 Section 942. 973.075 (2) (d) of the statutes is amended to read:

SB357,279,4 973.075 (2) (d) The officer has probable cause to believe that the property was derived from or realized through a crime or that the property is a vehicle which was used to transport any property or weapon used or to be used or received in the commission of any felony, which was used in the commission of a crime relating to a submerged cultural resource in violation of s. 44.47 or which was used to cause more than $1,000 $2,000 worth of criminal damage to cemetery property in violation of s. 943.01 (2) (d) or 943.012.

SB357, s. 943 Section 943. 973.09 (2) (b) 1. of the statutes is amended to read:

SB357,279,9 973.09 (2) (b) 1. Except as provided in subd. 2., for felonies, not less than one year nor more than either the statutory maximum term of imprisonment confinement in prison for the crime, as specified in s. 973.01 (2) (b), or 3 years, whichever is greater.

SB357, s. 944 Section 944. 973.09 (6) of the statutes is created to read:

SB357,279,12 973.09 (6) The court may require as a condition of probation that the person participate in a drug treatment program under s. 973.031.

SB357, s. 945 Section 945. 973.15 (2) (am) of the statutes is created to read:

SB357,279,17 973.15 (2) (am) 1. If a court provides that a bifurcated sentence imposed under s. 973.01 is to run concurrent with or consecutive to a sentence to the Wisconsin state prisons other than another bifurcated sentence imposed under s. 973.01, the court shall do all of the following:

SB357,279,20 a. Order the term of confinement in prison under the bifurcated sentence to be concurrent with or consecutive to the term of confinement in prison required under the nonbifurcated sentence.

SB357,279,23 b. Order the period of parole under the nonbifurcated sentence to be concurrent with or consecutive to the term of extended supervision required under the bifurcated sentence.

SB357,280,2 2. If a court imposes a sentence to the Wisconsin state prisons that is not a bifurcated sentence imposed under s. 973.01 and provides that the nonbifurcated sentence is to run concurrent with or consecutive to a bifurcated sentence under s. 973.01, the court shall do all of the following:

SB357,280,5 a. Order the term of confinement in prison under the nonbifurcated sentence to be concurrent with or consecutive to the term of confinement in prison required under the bifurcated sentence.

SB357,280,8 b. Order the period of parole under the nonbifurcated sentence to be concurrent with or consecutive to the term of extended supervision required under the bifurcated sentence.

SB357, s. 946 Section 946 . 973.30 of the statutes is created to read:

SB357,280,11 973.30 Sentencing commission. (1) Duties. The sentencing commission shall do all of the following:

SB357,280,13 (a) Select an executive director having appropriate training and experience to study sentencing practices and prepare proposed sentencing guidelines.

SB357,280,14 (b) Monitor and compile data regarding sentencing practices in the state.

SB357,280,18 (c) Adopt advisory sentencing guidelines for felonies committed on or after the effective date of this paragraph .... [revisor inserts date], to promote public safety, to reflect changes in sentencing practices and to preserve the integrity of the criminal justice and correctional systems.

SB357,280,21 (d) Provide information to the legislature, state agencies and the public regarding the costs to and other needs of the department which result from sentencing practices.

SB357,280,22 (e) Provide information to judges and lawyers about the sentencing guidelines.

SB357,281,2 (f) Publish and distribute to all circuit judges hearing criminal cases an annual report regarding its work, which shall include all sentencing guidelines and all changes in existing sentencing guidelines adopted during the 12 months preceding the report.

SB357,281,5 (g) Study whether race is a basis for imposing sentences in criminal cases and submit a report and recommendations on this issue to the governor, to each house of the legislature under s. 13.172 (2) and to the supreme court.

SB357,281,7 (h) Assist the legislature in assessing the cost of enacting new or revising existing statutes affecting criminal sentencing.

SB357,281,13 (i) At least semiannually, submit reports to all circuit judges, and to the chief clerk of each house of the legislature for distribution to the appropriate standing committees under s. 13.172 (3), containing statistics regarding criminal sentences imposed in this state. Each report shall have a different focus and need not contain statistics regarding every crime. Each report shall contain information regarding sentences imposed statewide and in each of the following geographic areas:

SB357,281,14 1. Milwaukee County.

SB357,281,15 2. Dane and Rock counties.

SB357,281,16 3. Brown, Outagamie, Calumet and Winnebago counties.

SB357,281,17 4. Racine and Kenosha counties.

SB357,281,18 5. All other counties.

SB357,281,19 (j) Study how sentencing options affect various types of offenders and offenses.

SB357,281,21 (2) Staff. Subject to authorization under s. 16.505, the sentencing commission may hire staff to assist it in the performance of its duties.

SB357,281,22 (3) Sunset. This section does not apply after December 31, 2004.

SB357, s. 947 Section 947. 977.05 (4) (jm) of the statutes is created to read:

SB357,282,3 977.05 (4) (jm) At the request of an inmate determined by the state public defender to be indigent or upon referral of a court under s. 302.113 (9g) (j), represent the inmate in proceedings for modification of a bifurcated sentence under s. 302.113 (9g) before a program review committee and the sentencing court, if the state public defender determines the case should be pursued.

SB357, s. 948 Section 948. 977.06 (2) (b) of the statutes, as affected by 1997 Wisconsin Act 283, is amended to read:

SB357,282,9 977.06 (2) (b) A person who makes a false representation that he or she does not believe is true for purposes of qualifying for assignment of counsel shall be fined not more than $10,000 or imprisoned for not more than 7 years and 6 months or both is guilty of a Class I felony.

SB357, s. 949 Section 949. 978.13 (1) (c) of the statutes, as affected by 1999 Wisconsin Act 9, is amended to read:

SB357,282,21 978.13 (1) (c) In counties having a population of 500,000 or more, the salary and fringe benefit costs of clerk positions in the district attorney's office necessary for the prosecution of violent crime cases primarily involving felony violations under s. 939.63, if a felony is committed while armed, and under ss. 940.01 to 940.03, 940.05, 940.06, 940.225, 943.23 (1g), (1m) and (1r) and 943.32 (2). The state treasurer shall pay the amount authorized under this paragraph to the county treasurer pursuant to a voucher submitted by the district attorney to the secretary of administration from the appropriation under s. 20.475 (1) (i). The amount paid under this paragraph may not exceed $94,400 in the 1999-2000 fiscal year and $97,200 in the 2000-01 fiscal year.

SB357, s. 950 Section 950. 1997 Wisconsin Act 283, section 454 (1) (f) is amended to read:

SB357,283,2 [1997 Wisconsin Act 283] Section 454 (1) (f) No later than April 30, 1999, the The committee shall submit a report of its findings and recommendations to the legislature in the manner provided under section 13.172 (2) of the statutes and to the governor. The report shall include any proposed legislation that is necessary to implement the recommendations made by the committee in its report.

SB357, s. 951 Section 951. 1997 Wisconsin Act 283, section 454 (2) is amended to read:

SB357,283,9 [1997 Wisconsin Act 283] Section 454 (2) Attorney project position. The authorized FTE positions for the department of administration are increased by 1.0 GPR attorney project position, to be funded from the appropriation under section 20.505 (3) (c) of the statutes, for the purpose of providing legal services to the criminal penalties study committee established under subsection (1), for the period ending on April 30 , 1999 June 30, 2000.

SB357, s. 952 Section 952. 1999 Wisconsin Act 9, section 9443 (24e) is amended to read:

SB357,283,15 [1999 Wisconsin Act 9] Section 9443 (24e) Lottery Fund. The repeal and recreation of sections 25.75 (1) (b), 71.07 (3m) (b) 1. a. and (c) 3., 71.28 (2m) (b) 1. a. and (c) 3., 71.47 (2m) (b) 1. a. and (c) 3. and 79.10 (11) (b) of the statutes and the creation of section 25.75 (1) (c) 3. and (3) (b) and (e) of the statutes take effect on the effective date of the 2001 2001-03 budget act.

SB357, s. 9101 Section 9101. Nonstatutory provisions; administration.

SB357,283,17 (1) District attorney position reallocations.

SB357,283,21 (a) Increased allocations. Of the authorized FTE GPR assistant district attorney positions for the department of administration funded from the appropriation under section 20.475 (1) (d) of the statutes, the number of positions allocated to the prosecutorial unit of Taylor County is increased by 0.2 position.

SB357,283,25 (b) Decreased allocations. Of the authorized FTE GPR assistant district attorney positions for the department of administration funded from the appropriation under section 20.475 (1) (d) of the statutes, the number of positions allocated to the prosecutorial unit of Rusk County is decreased by 0.2 position.

SB357, s. 9104 Section 9104. Nonstatutory provisions; agriculture, trade and consumer protection.

SB357,284,5 (1) Board composition. Notwithstanding the length of term for members of the board of agriculture, trade and consumer protection under section 15.13, 1997 stats., the 2 members who are consumer representatives shall cease to hold office on July 1, 2000.

SB357,284,6 (2) Transfer of certain consumer protection functions.

SB357,284,17 (a) Assets and liabilities. On July 1, 2000, all assets and liabilities of the department of agriculture, trade and consumer protection that are primarily related to the consumer protection investigation and enforcement functions performed by the department of justice under chapters 100, 134, 136, 344, 704, 707 and 779, 1993 stats., or are primarily related to programs or functions transferred to the department of justice under this act, shall become the assets and liabilities of the department of justice. The departments of justice and agriculture, trade and consumer protection shall jointly determine these assets and liabilities and shall jointly develop and implement a plan for the orderly transfer thereof. In the event of any disagreement between the departments, the joint committee on finance shall decide the question.

SB357,285,2 (b) Employe transfers. On July 1, 2000, 16.8 FTE positions in the department of agriculture trade and consumer protection that are primarily related to the consumer protection investigation and enforcement functions performed by the department of justice under chapters 100, 134, 136, 344, 704, 707 and 779, 1993 stats., or are primarily related to programs or functions transferred to the department of justice this act, and the incumbents holding these positions, as determined by the ,joint committee on finance are transferred to the department of justice, to be funded from the appropriation under section 20.455 (1) (a) of the statutes.

SB357,285,8 (c) Employe status. Employes transferred under paragraph (b ) have all the rights and the same status under subchapter V of chapter 111 and chapter 230 of the statutes in the department of justice that they enjoyed in the department of agriculture, trade and consumer protection immediately before the transfer. Notwithstanding section 230.28 (4) of the statutes, no employe so transferred who has attained permanent status in class is required to serve a probationary period.