AB3: Bill Text

AB3, s. 809 Section 809. 973.017 of the statutes is created to read:

AB3,190,7 973.017 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 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.

AB3,190,11 (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:

AB3,190,16 (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.

AB3,190,18 (b) Any applicable mitigating factors and any applicable aggravating factors, including the aggravating factors specified in subs. (3) to (8).

AB3,190,20 (3) Aggravating factors; generally. When making a sentencing decision for any crime, the court shall consider all of the following as aggravating factors:

AB3,190,23 (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.

AB3,190,25 (b) The fact that the person committed the crime using information that was disclosed to him or her under s. 301.46.

AB3,191,4 (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).

AB3,191,7 (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.

AB3,191,11 (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:

AB3,191,12 a. The person caused bodily harm, great bodily harm, or death to another.

AB3,191,16 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.

AB3,191,17 c. The person used force or violence or the threat of force or violence.

AB3,191,22 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 employee.

AB3,191,24 b. Subdivision 1. does not apply to conduct arising out of or in connection with a labor dispute.

AB3,192,2 (4) Aggravating factors; serious sex crimes committed while infected with certain diseases. (a) In this subsection:

AB3,192,4 1. "HIV" means any strain of human immunodeficiency virus, which causes acquired immunodeficiency syndrome.

AB3,192,6 2. "Serious sex crime" means a violation of s. 940.225 (1) or (2), 948.02 (1) or (2), or 948.025.

AB3,192,8 3. "Sexually transmitted disease" means syphilis, gonorrhea, hepatitis B, hepatitis C, or chlamydia.

AB3,192,11 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:

AB3,192,14 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.

AB3,192,18 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.

AB3,192,22 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.

AB3,192,25 (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:

AB3,193,4 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.

AB3,193,9 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.

AB3,193,12 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.

AB3,193,14 (5) Aggravating factors; violent felony committed against elder person. (a) In this subsection:

AB3,193,15 1. "Elder person" means any individual who is 62 years of age or older.

AB3,193,17 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.

AB3,193,21 (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.

AB3,194,3 (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 employee 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.

AB3,194,7 (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.

AB3,194,12 (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.

AB3,194,15 (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.

AB3,194,20 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.

AB3,195,2 (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.

AB3,195,7 (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.

AB3,195,16 (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. In any appeal from a court's sentencing decision, the appellate court may reverse the sentencing decision only if it determines that the sentencing court erroneously exercised its discretion in making the sentencing decision.

AB3, s. 810 Section 810. 973.03 (3) (e) 1. and 2. of the statutes are amended to read:

AB3,195,18 973.03 (3) (e) 1. A crime which is a Class A or, B, or C felony.

AB3,195,20 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.

AB3, s. 811 Section 811. 973.03 (3) (e) 3. of the statutes is repealed.

AB3, s. 812 Section 812. 973.032 (4) (c) 2. of the statutes is amended to read:

AB3,195,25 973.032 (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.

AB3, s. 813 Section 813. 973.09 (2) (b) 1. of the statutes is amended to read:

AB3,196,4 973.09 (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 or 3 years, whichever is greater.

AB3, s. 814 Section 814. 973.15 (2m) of the statutes is created to read:

AB3,196,6 973.15 (2m) (a) Definitions. In this subsection:

AB3,196,9 1. "Determinate sentence" means a bifurcated sentence imposed under s. 973.01 or a life sentence under which a person is eligible for release to extended supervision under s. 973.014 (1g) (a) 1. or 2.

AB3,196,11 2. "Indeterminate sentence" means a sentence to the Wisconsin state prisons other than one of the following:

AB3,196,12 a. A determinate sentence.

AB3,196,14 b. A sentence under which the person is not eligible for release on parole under s. 939.62 (2m) (c) or 973.014 (1) (c).

AB3,196,19 3. "Period of confinement in prison," with respect to any sentence to the Wisconsin state prisons, means any time during which a person is incarcerated under that sentence, including any extensions imposed under s. 302.11 (3), 302.113 (3), or 302.114 (3) and any period of confinement in prison required to be served under s. 302.11 (7) (am), 302.113 (9) (am), or 302.114 (9) (am).

AB3,196,24 (b) Determinate sentences imposed to run concurrent with or consecutive to determinate sentences. 1. If a court provides that a determinate sentence is to run concurrent with another determinate sentence, the person sentenced shall serve the periods of confinement in prison under the sentences concurrently and the terms of extended supervision under the sentences concurrently.

AB3,197,5 2. If a court provides that a determinate sentence is to run consecutive to another determinate sentence, the person sentenced shall serve the periods of confinement in prison under the sentences consecutively and the terms of extended supervision under the sentences consecutively and in the order in which the sentences have been pronounced.

AB3,197,12 (c) Determinate sentences imposed to run concurrent with or consecutive to indeterminate sentences. 1. If a court provides that a determinate sentence is to run concurrent with an indeterminate sentence, the person sentenced shall serve the period of confinement in prison under the determinate sentence concurrent with the period of confinement in prison under the indeterminate sentence and the term of extended supervision under the determinate sentence concurrent with the parole portion of the indeterminate sentence.

AB3,197,18 2. If a court provides that a determinate sentence is to run consecutive to an indeterminate sentence, the person sentenced shall serve the period of confinement in prison under the determinate sentence consecutive to the period of confinement in prison under the indeterminate sentence and the parole portion of the indeterminate sentence consecutive to the term of extended supervision under the determinate sentence.

AB3,197,25 (d) Indeterminate sentences imposed to run concurrent with or consecutive to determinate sentences. 1. If a court provides that an indeterminate sentence is to run concurrent with a determinate sentence, the person sentenced shall serve the period of confinement in prison under the indeterminate sentence concurrent with the period of confinement in prison under the determinate sentence and the parole portion of the indeterminate sentence concurrent with the term of extended supervision required under the determinate sentence.

AB3,198,6 2. If a court provides that an indeterminate sentence is to run consecutive to a determinate sentence, the person sentenced shall serve the period of confinement in prison under the indeterminate sentence consecutive to the period of confinement in prison under the determinate sentence and the parole portion of the indeterminate sentence consecutive to the term of extended supervision under the determinate sentence.

AB3,198,12 (e) Revocation in multiple sentence cases. If a person is serving concurrent determinate sentences and extended supervision is revoked in each case, or if a person is serving a determinate sentence concurrent with an indeterminate sentence and both extended supervision and parole are revoked, the person shall concurrently serve any periods of confinement in prison required under those sentences under s. 302.11 (7) (am), 302.113 (9) (am), or 302.114 (9) (am).

AB3, s. 815 Section 815. 973.155 (1) (b) of the statutes is amended to read:

AB3,198,18 973.155 (1) (b) The categories in par. (a) include custody of the convicted offender which is in whole or in part the result of a probation, extended supervision or parole hold under s. 302.113 (8m), 302.114 (8m), 304.06 (3), or 973.10 (2) placed upon the person for the same course of conduct as that resulting in the new conviction.

AB3, s. 816 Section 816. 973.30 of the statutes is created to read:

AB3,198,21 973.30 Sentencing commission. (1) Duties. The sentencing commission shall do all of the following:

AB3,198,23 (a) Select an executive director having appropriate training and experience to study sentencing practices and prepare proposed sentencing guidelines.

AB3,198,24 (b) Monitor and compile data regarding sentencing practices in the state.

AB3,199,4 (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.

AB3,199,7 (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.

AB3,199,8 (e) Provide information to judges and lawyers about the sentencing guidelines.

AB3,199,12 (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.

AB3,199,15 (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.

AB3,199,17 (h) Assist the legislature in assessing the cost of enacting new or revising existing statutes affecting criminal sentencing.

AB3,199,23 (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:

AB3,199,24 1. Milwaukee County.

AB3,199,25 2. Dane and Rock counties.

AB3,200,1 3. Brown, Outagamie, Calumet, and Winnebago counties.

AB3,200,2 4. Racine and Kenosha counties.

AB3,200,3 5. All other counties.

AB3,200,4 (j) Study how sentencing options affect various types of offenders and offenses.

AB3,200,6 (2) Staff. Subject to authorization under s. 16.505, the sentencing commission may hire staff to assist it in the performance of its duties.

AB3,200,7 (3) Sunset. This section does not apply after December 31, 2006.

AB3, s. 817 Section 817. 977.05 (4) (jm) of the statutes is created to read:

AB3,200,13 977.05 (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.

AB3, s. 818 Section 818. 977.06 (2) (b) of the statutes is amended to read:

AB3,200,18 977.06 (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.

AB3, s. 819 Section 819. 978.13 (1) (c) of the statutes is amended to read:

AB3,201,4 978.13 (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.