939.62(2m)(a)1m.b. b. A crime at any time under federal law or the law of any other state or, prior to July 16, 1998, under the law of this state that is comparable to a crime specified in subd. 1m. a.
939.62(2m)(a)2m. 2m. "Serious felony" means any of the following:
939.62(2m)(a)2m.a. a. Any felony under s. 961.41 (1), (1m) or (1x) if the felony is punishable by a maximum prison term of 30 years or more.
939.62(2m)(a)2m.c. c. The solicitation, conspiracy or attempt, under s. 939.30, 939.31 or 939.32, to commit a Class A felony.
939.62(2m)(a)2m.d. d. A crime at any time under federal law or the law of any other state or, prior to April 28, 1994, under the law of this state that is comparable to a crime specified in subd. 2m. a., b. or c.
939.62(2m)(b) (b) The actor is a persistent repeater if one of the following applies:
939.62(2m)(b)1. 1. The actor has been convicted of a serious felony on 2 or more separate occasions at any time preceding the serious felony for which he or she presently is being sentenced under ch. 973, which convictions remain of record and unreversed and, of the 2 or more previous convictions, at least one conviction occurred before the date of violation of at least one of the other felonies for which the actor was previously convicted.
939.62(2m)(b)2. 2. The actor has been convicted of a serious child sex offense on at least one occasion at any time preceding the date of violation of the serious child sex offense for which he or she presently is being sentenced under ch. 973, which conviction remains of record and unreversed.
939.62(2m)(bm) (bm) For purposes of counting a conviction under par. (b), it is immaterial that the sentence for the previous conviction was stayed, withheld or suspended, or that the actor was pardoned, unless the pardon was granted on the ground of innocence.
939.62(2m)(c) (c) If the actor is a persistent repeater, the term of imprisonment for the felony for which the persistent repeater presently is being sentenced under ch. 973 is life imprisonment without the possibility of parole or extended supervision.
939.62(2m)(d) (d) If a prior conviction is being considered as being covered under par. (a) 1m. b. or 2m. d. as comparable to a felony specified under par. (a) 1m. a. or 2m. a., b. or c., the conviction may be counted as a prior conviction under par. (b) only if the court determines, beyond a reasonable doubt, that the violation relating to that conviction would constitute a felony specified under par. (a) 1m. a. or 2m. a., b. or c. if committed by an adult in this state.
939.62(3) (3) In this section "felony" and "misdemeanor" have the following meanings:
939.62(3)(a) (a) In case of crimes committed in this state, the terms do not include motor vehicle offenses under chs. 341 to 349 and offenses handled through proceedings in the court assigned to exercise jurisdiction under chs. 48 and 938, but otherwise have the meanings designated in s. 939.60.
939.62(3)(b) (b) In case of crimes committed in other jurisdictions, the terms do not include those crimes which are equivalent to motor vehicle offenses under chs. 341 to 349 or to offenses handled through proceedings in the court assigned to exercise jurisdiction under chs. 48 and 938.Otherwise, felony means a crime which under the laws of that jurisdiction carries a prescribed maximum penalty of imprisonment in a prison or penitentiary for one year or more. Misdemeanor means a crime which does not carry a prescribed maximum penalty sufficient to constitute it a felony and includes crimes punishable only by a fine.
939.62 Cross-reference Cross-reference: For procedure, see s. 973.12.
939.62 Annotation Imposition of a 3-year sentence as a repeater is not cruel and unusual even though the present offense only involved the stealing of 2 boxes of candy, which carries a maximum sentence of 6 months. Hanson v. State, 48 Wis. 2d 203, 179 N.W.2d 909.
939.62 Annotation A repeater charge must be withheld from the jury's knowledge since it is relevant only to sentencing. Mulkovich v. State, 73 Wis. 2d 464, 243 N.W.2d 198.
939.62 Annotation This section authorizes penalty enhancement only when the maximum underlying sentence is imposed. The enhancement portion of a sub-maximum sentence is vacated as an abuse of sentencing discretion. State v. Harris, 119 Wis. 2d 612, 350 N.W.2d 633 (1984).
939.62 Annotation In sub. (2), "convicted of a misdemeanor on 3 separate occasions" requires 3 separate misdemeanors, not 3 separate court appearances. State v. Wittrock, 119 Wis. 2d 664, 350 N.W.2d 647 (1984).
939.62 Annotation A court's acceptance of a guilty plea or verdict is sufficient to trigger the operation of this section; completion of sentencing is not a prerequisite. State v. Wimmer, 152 Wis. 2d 654, 449 N.W.2d 621 (Ct. App. 1989).
939.62 Annotation Felony convictions entered following a waiver from juvenile court are a proper basis for a repeater allegation; those offenses were not "handled through" ch. 48. State v. Kastner, 156 Wis. 2d 371, 457 N.W.2d 331 (Ct. App. 1990).
939.62 Annotation Sub. (1) is applicable when concurrent maximum sentences are imposed for multiple offenses. Consecutive sentences are not required. State v. Davis, 165 Wis. 2d 78, 477 N.W.2d 307 (Ct. App. 1991).
939.62 Annotation For offenses under ch. 161 [now 961], the court may apply s. 961.48 or 939.62, but not both. State v. Ray, 166 Wis. 2d 855, 481 N.W.2d 288 (Ct. App. 1992).
939.62 Annotation Each conviction for a misdemeanor constitutes a "separate occasion" for purposes of sub. (2). State v. Hopkins, 168 Wis. 2d 802, 484 N.W.2d 549 (1992).
939.62 Annotation Enhancement of a sentence under this section does not violate double jeopardy. State v. James, 169 Wis. 2d 490, 485 N.W.2d 436 (Ct. App. 1992).
939.62 Annotation This section does not grant a trial court authority to increase a punitive sanction for contempt of court. State v. Carpenter, 179 Wis. 2d 838, 508 N.W.2d 69 (Ct. App. 1993).
939.62 Annotation The state is charged with proving a prior conviction and that it lies within the 5-year window of sub. (2). State v. Goldstein, 182 Wis. 2d 251, 513 N.W.2d 631 (Ct. App. 1994).
939.62 Annotation A guilty plea without a specific admission to repeater allegations is not sufficient to establish the facts necessary to impose the repeater penalty enhancer. State v. Zimmermann, 185 Wis. 2d 549, 518 N.W.2d 303 (Ct. App. 1994).
939.62 Annotation When a defendant does not admit to habitual criminality, the state must prove the alleged repeater status beyond a reasonable doubt. State v. Theriault, 187 Wis. 2d 125, 522 N.W.2d 264 (Ct. App. 1994).
939.62 Annotation A commitment under the Sex Crimes Law, ch. 975, is not a sentence under sub. (2). State v. Kruzycki, 192 Wis. 2d 509, 531 N.W.2d 429 (Ct. App. 1995).
939.62 Annotation Sub. (2m) (b) is constitutional. It does not violate the guaranty against cruel and unusual punishment, the principal of separation of powers or the guaranty of equal protection. State v. Lindsey, 203 Wis. 2d 423, 554 N.W.2d 215 (Ct. App. 1996).
939.62 Annotation A conviction for purposes of sub. (2) occurs when the judgment of conviction under s. 972.13 is entered, not the date that guilt is found. Mikrut v. State, 212 Wis. 2d 859, 569 N.W.2d 765 (Ct. App. 1997).
939.62 Annotation Section 973.13 commands that all sentences in excess of that authorized by law be declared void, including the repeater portion of a sentence. Prior postconviction motions that failed to challenge the validity of the sentence do not bar seeking relief from faulty repeater sentences. State v. Flowers, 221 Wis. 2d 20, 586 N.W.2d 175 (Ct. App. 1998).
939.62 Annotation Sub. (2m) (b) does not violate constitutional equal protection requirements. State v. Block, 222 Wis. 2d 586, 587 N.W.2d 914 (Ct. App. 1998).
939.62 Annotation When the state charged the defendant as a repeater under subs. (1) (c) and (2), then charged the defendant as a repeater under sub. (2m) in the information, it abandoned the earlier charges and could not resurrect them when the latter charge proved to be invalid. State v. Thoms, 228 Wis. 2d 868, 599 N.W.2d 84 (Ct. App. 1999).
939.62 Annotation Confinement time spent on various parole holds qualifies as actual confinement serving a criminal sentence thereby extending the 5-year period under sub. (2). State v. Price, 231 Wis. 2d 229, 231 N.W.2d 229 (Ct. App. 1999).
939.62 Annotation Jail time served as a condition of probation is time spent in confinement under sub. (2) and is excluded from calculating the statute's time period. State v. Crider, 2000 WI App 84, 234 Wis. 2d 195, 610 N.W.2d 198.
939.621 939.621 Increased penalty for certain domestic abuse offenses. If a person commits an act of domestic abuse, as defined in s. 968.075 (1) (a) and the act constitutes the commission of a crime, the maximum term of imprisonment for that crime may be increased by not more than 2 years if the crime is committed during the 72 hours immediately following an arrest for a domestic abuse incident, as set forth in s. 968.075 (5). The 72-hour period applies whether or not there has been a waiver by the victim under s. 968.075 (5) (c). The victim of the domestic abuse crime does not have to be the same as the victim of the domestic abuse incident that resulted in the arrest. The penalty increase under this section changes the status of a misdemeanor to a felony.
939.621 History History: 1987 a. 346; 1995 a. 304.
939.622 939.622 Committing a serious sex crime while infected with acquired immunodeficiency syndrome, HIV or a sexually transmitted disease.
939.622(1) (1) In this section:
939.622(1)(a) (a) "HIV" means any strain of human immunodeficiency virus, which causes acquired immunodeficiency syndrome.
939.622(1)(b) (b) "Serious sex crime" means a violation of s. 940.225 (1) or (2), 948.02 (1) or (2) or 948.025.
939.622(1)(c) (c) "Sexually transmitted disease" means syphilis, gonorrhea, hepatitis B, hepatitis C or chlamydia.
939.622(1)(d) (d) "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:
939.622(1)(d)1. 1. 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.
939.622(1)(d)2. 2. 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.
939.622(1)(d)3. 3. 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.
939.622(2) (2) The maximum term of imprisonment for a serious sex crime may be increased by not more than 5 years if all of the following apply:
939.622(2)(a) (a) At the time that he or she commits the serious sex crime, the person convicted of committing the serious sex crime has a sexually transmitted disease or acquired immunodeficiency syndrome or has had a positive test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV.
939.622(2)(b) (b) At the time that he or she commits the serious sex crime, the person convicted of committing the serious sex crime knows that he or she has a sexually transmitted disease or acquired immunodeficiency syndrome or that he or she has had a positive test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV.
939.622(2)(c) (c) 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.
939.622(3) (3) This section provides for the enhancement of the maximum term of imprisonment provided for the underlying crime. The court shall direct that the trier of fact find a special verdict as to all of the issues specified in sub. (2).
939.622 History History: 1997 a. 276.
939.623 939.623 Increased penalty; repeat serious sex crimes.
939.623(1)(1) In this section, "serious sex crime" means a violation of s. 940.225 (1) or (2).
939.623(2) (2) If a person has one or more prior convictions for a serious sex crime and subsequently commits a serious sex crime, the court shall sentence the person to not less than 5 years' imprisonment, but otherwise the penalties for the crime apply, subject to any applicable penalty enhancement. The court shall not place the defendant on probation.
939.623 History History: 1993 a. 97, 227; 1997 a. 326.
939.624 939.624 Increased penalty; repeat serious violent crimes.
939.624(1)(1) In this section, "serious violent crime" means a violation of s. 940.03 or 940.05.
939.624(2) (2) If a person has one or more prior convictions for a serious violent crime or a crime punishable by life imprisonment and subsequently commits a serious violent crime, the court shall sentence the person to not less than 5 years' imprisonment, but otherwise the penalties for the crime apply, subject to any applicable penalty enhancement. The court shall not place the defendant on probation.
939.624 History History: 1993 a. 97.
939.625 939.625 Increased penalty for criminal gang crimes.
939.625(1)(1)
939.625(1)(a)(a) If a person is convicted of a crime under chs. 939 to 948 or 961 committed for the benefit of, at the direction of or in association with any criminal gang, with the specific intent to promote, further or assist in any criminal conduct by criminal gang members, the penalties for the underlying crime are increased as provided in par. (b).
939.625(1)(b) (b) If par. (a) applies:
939.625(1)(b)1. 1. The maximum term of imprisonment for a misdemeanor may be increased by not more than 6 months. This subdivision does not change the status of the crime from a misdemeanor to a felony.
939.625(1)(b)2. 2. If the maximum term of imprisonment for a felony is more than 5 years or is a life term, the maximum term of imprisonment for the felony may be increased by not more than 5 years.
939.625(1)(b)3. 3. If the maximum term of imprisonment for a felony is more than 2 years, but not more than 5 years, the maximum term of imprisonment for the felony may be increased by not more than 4 years.
939.625(1)(b)4. 4. The maximum term of imprisonment for a felony not specified in subd. 2. or 3. may be increased by not more than 3 years.
939.625(2) (2) The court shall direct that the trier of fact find a special verdict as to whether the underlying crime was committed for the benefit of, at the direction of or in association with any criminal gang, with the specific intent to promote, further or assist in any criminal conduct by criminal gang members.
939.625 History History: 1993 a. 98; 1995 a. 448.
939.625 Note NOTE: See 1993 Wis. Act 98, s. 9159, for a statement of legislative intent.
939.63 939.63 Penalties; use of a dangerous weapon.
939.63(1) (1)
939.63(1)(a)(a) If a person commits a crime while possessing, using or threatening to use a dangerous weapon, the maximum term of imprisonment prescribed by law for that crime may be increased as follows:
939.63(1)(a)1. 1. The maximum term of imprisonment for a misdemeanor may be increased by not more than 6 months.
939.63(1)(a)2. 2. If the maximum term of imprisonment for a felony is more than 5 years or is a life term, the maximum term of imprisonment for the felony may be increased by not more than 5 years.
939.63(1)(a)3. 3. If the maximum term of imprisonment for a felony is more than 2 years, but not more than 5 years, the maximum term of imprisonment for the felony may be increased by not more than 4 years.
939.63(1)(a)4. 4. The maximum term of imprisonment for a felony not specified in subd. 2. or 3. may be increased by not more than 3 years.
939.63(1)(b) (b) The increased penalty provided in this subsection does not apply if possessing, using or threatening to use a dangerous weapon is an essential element of the crime charged.
939.63(1)(c) (c) This subsection applies only to crimes specified under chs. 939 to 951 and 961.
939.63(2) (2) Whoever is convicted of committing a felony while possessing, using or threatening to use a dangerous weapon shall be sentenced to a minimum term of years in prison, unless the sentencing court otherwise provides. The minimum term for the first application of this subsection is 3 years. The minimum term for any subsequent application of this subsection is 5 years. If the court places the person on probation or imposes a sentence less than the presumptive minimum sentence, it shall place its reasons for so doing on the record.
939.63 History History: 1979 c. 114; 1981 c. 212; 1987 a. 332 s. 64; 1995 a. 448.
939.63 Annotation The fact that the maximum term for a misdemeanor may exceed one year under sub. (1) (a) 1. does not upgrade the crime to felony status. State v. Denter, 121 Wis. 2d 118, 357 N.W.2d 555 (1984).
939.63 Annotation Possession encompasses both actual and constructive possession. To prove a violation of this section, the state must prove that the defendant possessed the weapon to facilitate the predicate offense. State v. Peete, 185 Wis. 2d 255, 517 N.W.2d 149 (1994). See also State v. Howard, 211 Wis. 2d 269, 564 N.W.2d 753 (1997).
939.63 Annotation An automobile may constitute a dangerous weapon under s. 939.22 (10). State v. Bidwell, 200 Wis. 2d 200, 546 N.W.2d 507 (Ct. App. 1996).
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This is an archival version of the Wis. Stats. database for 1999. See Are the Statutes on this Website Official?