History: 1987 a. 399
; 1993 a. 486
Judicial Council Note, 1988: Sub. (3) is amended by conforming references to the statute titles as affected by this bill. [Bill 191-S]
When a defendant testifies that he did not intend to shoot or use force, he cannot claim self-defense. Cleghorn v. State, 55 Wis. 2d 466
, 198 N.W.2d 577
Sub. (2) (b) is inapplicable to a defendant where the nature of the initial provocation is a gun-in-hand confrontation of an intended victim by a self-identified robber. Under these circumstances the intended victim is justified in the use of force in the exercise of the right of self-defense. Ruff v. State, 65 Wis. 2d 713
, 223 N.W.2d 446
Whether a defendant's belief was reasonable under subs. (1) and (4) depends, in part, upon the parties' personal characteristics and histories and whether events were continuous. State v. Jones, 147 Wis. 2d 806
, 434 N.W.2d 380
Self-defense and evidence of a victim's reputation for violence are discussed. State v. Daniels, 160 Wis. 2d 85
, 465 N.W.2d 633
Imperfect self-defense contains an initial threshold element requiring a reasonable belief that the defendant was terminating an unlawful interference with his or her person. State v. Camacho, 176 Wis. 2d 860
, 501 N.W.2d 380
The reasonableness of a person's belief under sub. (1) is judged from the position of a person of ordinary intelligence and prudence in the same situation as the defendant, not a person identical to the defendant placed in the same situation as the defendant. A defendant's psycho-social history showing past violence toward the defendant is generally not relevant to this objective standard, although it may be relevant, as in spousal abuse cases, where the actors are the homicide victim and defendant. State v. Hampton, 207 Wis. 2d 369
, 558 N.W.2d 884
(Ct. App. 1996).
The right to resist unlawful arrest is not part of the statutory right to self defense, but is a common law privilege, which is abrogated. State v. Hobson, 218 Wis. 2d 350
, 577 N.W.2d 825
While there is no statutory duty to retreat, whether the opportunity to retreat was available goes to whether the defendant reasonably believed the force used was necessary to prevent an interference with his or her person. A jury instruction to that effect was proper. State v. Wenger, 225 Wis. 2d 495
, 593 N.W.2d 467
(Ct. App. 1999).
A person may employ deadly force against another, if the person reasonably believes that force is necessary to protect a 3rd person or one's self from imminent death or great bodily harm, without incurring civil liability for injury to the other. Clark v. Ziedonis, 513 F. 2d 79
Self-defense—prior acts of the victim. 1974 WLR 266.
State v. Camacho: The Judicial Creation of an Objective Element to Wisconsin's Law of Imperfect Self-defense Homicide. Leiser. 1995 WLR 742.
Defense of property and protection against retail theft. 939.49(1)(1)
A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with the person's property. Only such degree of force or threat thereof may intentionally be used as the actor reasonably believes is necessary to prevent or terminate the interference. It is not reasonable to intentionally use force intended or likely to cause death or great bodily harm for the sole purpose of defense of one's property.
A person is privileged to defend a 3rd person's property from real or apparent unlawful interference by another under the same conditions and by the same means as those under and by which the person is privileged to defend his or her own property from real or apparent unlawful interference, provided that the person reasonably believes that the facts are such as would give the 3rd person the privilege to defend his or her own property, that his or her intervention is necessary for the protection of the 3rd person's property, and that the 3rd person whose property the person is protecting is a member of his or her immediate family or household or a person whose property the person has a legal duty to protect, or is a merchant and the actor is the merchant's employee or agent. An official or adult employee or agent of a library is privileged to defend the property of the library in the manner specified in this subsection.
In this section "unlawful" means either tortious or expressly prohibited by criminal law or both.
Flight on the part of one suspected of a felony does not, of itself, warrant the use of deadly force by an arresting officer and it is only in certain aggravated circumstances that a police officer may shoot the person he is attempting to arrest. Clark v. Ziedonis, 368 F. Supp. 544
Classification of felonies. 939.50(2)
A felony is a Class A, B, BC, C, D or E felony when it is so specified in chs. 939
Penalties for felonies are as follows:
For a Class B felony, imprisonment not to exceed 60 years.
For a Class BC felony, a fine not to exceed $10,000 or imprisonment not to exceed 30 years, or both.
For a Class C felony, a fine not to exceed $10,000 or imprisonment not to exceed 15 years, or both.
For a Class D felony, a fine not to exceed $10,000 or imprisonment not to exceed 10 years, or both.
For a Class E felony, a fine not to exceed $10,000 or imprisonment not to exceed 5 years, or both.
Classification of misdemeanors. 939.51(2)
A misdemeanor is a Class A, B or C misdemeanor when it is so specified in chs. 939
Penalties for misdemeanors are as follows:
For a Class A misdemeanor, a fine not to exceed $10,000 or imprisonment not to exceed 9 months, or both.
For a Class B misdemeanor, a fine not to exceed $1,000 or imprisonment not to exceed 90 days, or both.
For a Class C misdemeanor, a fine not to exceed $500 or imprisonment not to exceed 30 days, or both.
Classification of forfeitures. 939.52(2)
A forfeiture is a Class A, B, C, D or E forfeiture when it is so specified in chs. 939
Penalties for forfeitures are as follows:
For a Class A forfeiture, a forfeiture not to exceed $10,000.
For a Class B forfeiture, a forfeiture not to exceed $1,000.
For a Class C forfeiture, a forfeiture not to exceed $500.
For a Class D forfeiture, a forfeiture not to exceed $200.
For a Class E forfeiture, a forfeiture not to exceed $25.
Felony and misdemeanor defined.
A crime punishable by imprisonment in the Wisconsin state prisons is a felony. Every other crime is a misdemeanor.
History: 1977 c. 418
s. 924 (18) (e)
A statutory offense punishable by imprisonment of one year or less in an unspecified place of confinement may result in confinement in a state prison and, therefore, is a felony, regardless of the classification of the offense at the time of the statute's enactment. State ex rel. McDonald v. Douglas County Circuit Ct. 100 Wis. 2d 569
, 302 N.W.2d 462
Penalty when none expressed. 939.61(1)
If a person is convicted of an act or omission prohibited by statute and for which no penalty is expressed, the person shall be subject to a forfeiture not to exceed $200.
If a person is convicted of a misdemeanor under state law for which no penalty is expressed, the person may be fined not more than $500 or imprisoned not more than 30 days or both.
Common law penalties are abolished.
History: 1977 c. 173
Lifetime supervision of serious sex offenders. 939.615(1)(a)
"Department" means the department of corrections.
"Serious sex offense" means any of the following:
A violation, or the solicitation, conspiracy or attempt to commit a violation, of s. 940.22 (2)
, 940.225 (1)
, 948.02 (1)
, 948.025 (1)
, 948.05 (1)
, 948.055 (1)
, 948.11 (2) (a)
A violation, or the solicitation, conspiracy or attempt to commit a violation, under ch. 940
other than a violation specified in subd. 1.
, if the court determines that one of the purposes for the conduct constituting the violation was for the actor's sexual arousal or gratification.
(2) When lifetime supervision may be ordered. 939.615(2)(a)(a)
Except as provided in par. (b)
, if a person is convicted of a serious sex offense or found not guilty of a serious sex offense by reason of mental disease or defect, the court may, in addition to sentencing the person, placing the person on probation or, if applicable, committing the person under s. 971.17
, place the person on lifetime supervision by the department if notice concerning lifetime supervision was given to the person under s. 973.125
and if the court determines that lifetime supervision of the person is necessary to protect the public.
A court may not place a person on lifetime supervision under this section if the person was previously placed on lifetime supervision under this section for a prior conviction for a serious sex offense or a prior finding of not guilty of a serious sex offense by reason of mental disease or defect and that previous placement on lifetime supervision has not been terminated under sub. (6)
If the prosecutor is seeking lifetime supervision for a person who is charged with committing a serious sex offense specified in sub. (1) (b) 2.
, the court shall direct that the trier of fact find a special verdict as to whether the conduct constituting the offense was for the actor's sexual arousal or gratification.
(3) When lifetime supervision begins.
Subject to sub. (4)
, the period of lifetime supervision on which a person is placed under this section shall begin at whichever of the following times is applicable:
If the person is placed on probation for the serious sex offense, upon his or her discharge from probation.
If the person is sentenced to prison for the serious sex offense, upon his or her discharge from parole or extended supervision.
If the person is sentenced to prison for the serious sex offense and is being released from prison because he or she has reached the expiration date of his or her sentence, upon his or her release from prison.
If the person has been committed to the department of health and family services under s. 971.17
for the serious sex offense, upon the termination of his or her commitment under s. 971.17 (5)
or his or her discharge from the commitment under s. 971.17 (6)
, whichever is applicable.
(4) Only one period of lifetime supervision may be imposed.
If a person is being sentenced for more than one conviction for a serious sex offense, the court may place the person on one period of lifetime supervision only. A period of lifetime supervision ordered for a person sentenced for more than one conviction begins at whichever of the times specified in sub. (3)
is the latest.
(5) Status of person placed on lifetime supervision; powers and duties of department.