JR2 AB1: Bill Text

AB1,371,9 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.

AB1,371,14 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.

AB1,371,17 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.

AB1,371,19 (5) Aggravating factors; violent felony committed against elder person. (a) In this subsection:

AB1,371,20 1. "Elder person" means any individual who is 62 years of age or older.

AB1,371,22 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.

AB1,372,2 (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.

AB1,372,9 (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.

AB1,372,13 (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.

AB1,372,18 (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.

AB1,372,21 (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.

AB1,373,2 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.

AB1,373,9 (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.

AB1,373,14 (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.

AB1,373,23 (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.

AB1,374,3 (10m) Statement of reasons for sentencing decision. (a) The court shall state the reasons for its sentencing decision and, except as provided in par. (b), shall do so in open court and on the record.

AB1,374,7 (b) If the court determines that it is not in the interest of the defendant for it to state the reasons for its sentencing decision in the defendant's presence, the court shall state the reasons for its sentencing decision in writing and include the written statement in the record.

AB1, s. 1136 Section 1136. 973.03 (3) (e) 1. and 2. of the statutes are amended to read:

AB1,374,9 973.03 (3) (e) 1. A crime which is a Class A or, B, or C felony.

AB1,374,11 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.

AB1, s. 1137 Section 1137. 973.03 (3) (e) 3. of the statutes is repealed.

AB1, s. 1138 Section 1138. 973.032 (4) (c) 2. of the statutes is amended to read:

AB1,374,16 973.032 (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.

AB1, s. 1139 Section 1139. 973.075 (1) (b) 1m. e. of the statutes, as affected by 2001 Wisconsin Act 16, is amended to read:

AB1,374,20 973.075 (1) (b) 1m. e. To cause more than $2,500 $1,000 worth of criminal damage to cemetery property in violation of s. 943.01 (2) (d) or 943.012.

AB1, s. 1140 Section 1140. 973.075 (2) (d) of the statutes, as affected by 2001 Wisconsin Act 16, is amended to read:

AB1,375,4 973.075 (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 $2,500 $1,000 worth of criminal damage to cemetery property in violation of s. 943.01 (2) (d) or 943.012.

AB1, s. 1141 Section 1141. 973.09 (2) (b) 1. of the statutes is amended to read:

AB1,375,8 973.09 (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.

AB1, s. 1142 Section 1142. 973.15 (2m) of the statutes is created to read:

AB1,375,10 973.15 (2m) (a) Definitions. In this subsection:

AB1,375,13 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.

AB1,375,15 2. "Indeterminate sentence" means a sentence to the Wisconsin state prisons other than one of the following:

AB1,375,16 a. A determinate sentence.

AB1,375,18 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).

AB1,375,23 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).

AB1,376,3 (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.

AB1,376,8 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.

AB1,376,15 (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.

AB1,376,21 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.

AB1,377,3 (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.

AB1,377,9 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.

AB1,377,15 (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).

AB1, s. 1143 Section 1143. 973.155 (1) (b) of the statutes is amended to read:

AB1,377,21 973.155 (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.

AB1, s. 1144 Section 1144. 973.30 of the statutes is created to read:

AB1,377,24 973.30 Sentencing commission. (1) Duties. The sentencing commission shall do all of the following:

AB1,378,2 (a) Select an executive director having appropriate training and experience to study sentencing practices and prepare proposed sentencing guidelines.

AB1,378,3 (b) Monitor and compile data regarding sentencing practices in the state.

AB1,378,7 (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.

AB1,378,10 (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.

AB1,378,11 (e) Provide information to judges and lawyers about the sentencing guidelines.

AB1,378,15 (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.

AB1,378,18 (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.

AB1,378,20 (h) Assist the legislature in assessing the cost of enacting new or revising existing statutes affecting criminal sentencing.

AB1,379,2 (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:

AB1,379,3 1. Milwaukee County.

AB1,379,4 2. Dane and Rock counties.

AB1,379,5 3. Brown, Outagamie, Calumet, and Winnebago counties.

AB1,379,6 4. Racine and Kenosha counties.

AB1,379,7 5. All other counties.

AB1,379,8 (j) Study how sentencing options affect various types of offenders and offenses.

AB1,379,10 (2) Staff. Subject to authorization under s. 16.505, the sentencing commission may hire staff to assist it in the performance of its duties.

AB1,379,11 (3) Sunset. This section does not apply after December 31, 2007.

AB1, s. 1145 Section 1145. 977.05 (4) (jm) of the statutes is created to read:

AB1,379,17 977.05 (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.

AB1, s. 1146 Section 1146. 977.06 (2) (b) of the statutes is amended to read:

AB1,379,22 977.06 (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.

AB1, s. 1147 Section 1147. 978.13 (1) (intro.) of the statutes is amended to read:

AB1,379,25 978.13 (1) (intro.) The Subject to sub. (1m), the state shall assume financial responsibility for all of the following:

AB1, s. 1148 Section 1148. 978.13 (1) (b) of the statutes is amended to read:

AB1,380,9 978.13 (1) (b) In counties having a population of 500,000 or more, the salary and fringe benefit costs of 2 clerk positions providing clerical services to the prosecutors in the district attorney's office handling cases involving felony violations under ch. 961. The state treasurer shall pay the amount authorized under this paragraph subsection to the county treasurer pursuant to a voucher submitted by the district attorney to the department of administration from the appropriation under s. 20.475 (1) (i). The amount paid under this paragraph may not exceed $75,200 in the 1999-2000 fiscal year and $77,500 in the 2000-01 fiscal year.

AB1, s. 1149 Section 1149. 978.13 (1) (c) of the statutes is amended to read:

AB1,380,20 978.13 (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 subsection 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.

AB1, s. 1150 Section 1150. 978.13 (1) (d) of the statutes, as affected by 2001 Wisconsin Act 16, is amended to read:

AB1,381,5 978.13 (1) (d) In counties having a population of 500,000 or more, the salary and fringe benefit costs of 2 clerk positions providing clerical services to the prosecutors in the district attorney's office handling cases involving the unlawful possession or use of firearms. The state treasurer shall pay the amount authorized under this paragraph subsection to the county treasurer from the appropriation under s. 20.475 (1) (f) pursuant to a voucher submitted by the district attorney to the department of administration. The amount paid under this paragraph may not exceed the amount appropriated under s. 20.475 (1) (f).

AB1, s. 1151 Section 1151. 978.13 (1m) of the statutes is created to read:

AB1,381,9 978.13 (1m) The amount paid under sub. (1) (b) and (c) combined may not exceed the amount appropriated under s. 20.475 (1) (i). The amount paid under sub. (1) (d) may not exceed the amount appropriated under s. 20.475 (1) (f).

AB1, s. 1152 Section 1152. 980.08 (4) of the statutes is amended to read:

AB1,382,6 980.08 (4) The court, without a jury, shall hear the petition within 30 days after the report of the court-appointed examiner is filed with the court, unless the petitioner waives this time limit. Expenses of proceedings under this subsection shall be paid as provided under s. 51.20 (18) (b), (c), and (d). The court shall grant the petition unless the state proves by clear and convincing evidence that the person is still a sexually violent person and that it is still substantially probable that the person will engage in acts of sexual violence if the person is not continued in institutional care. In making a decision under this subsection, the court may consider, without limitation because of enumeration, the nature and circumstances of the behavior that was the basis of the allegation in the petition under s. 980.02 (2) (a), the person's mental history and present mental condition, where the person will live, how the person will support himself or herself, and what arrangements are available to ensure that the person has access to and will participate in necessary treatment, including pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen if the person is a serious child sex offender. A decision under this subsection on a petition filed by a person who is a serious child sex offender may not be made based on the fact that the person is a proper subject for pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen or on the fact that the person is willing to participate in pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen.

AB1, s. 1153 Section 1153. 980.08 (5) of the statutes, as affected by 2001 Wisconsin Act 16, is amended to read:

AB1,383,16 980.08 (5) If the court finds that the person is appropriate for supervised release, the court shall notify the department. The department shall make its best effort to arrange for placement of the person in a residential facility or dwelling that is in the person's county of residence, as determined by the department under s. 980.105. The department and the county department under s. 51.42 in the county of residence of the person shall prepare a plan that identifies the treatment and services, if any, that the person will receive in the community. The plan shall address the person's need, if any, for supervision, counseling, medication, community support services, residential services, vocational services, and alcohol or other drug abuse treatment. In developing a plan for where the person may reside while on supervised release, the department shall consider the proximity of any potential placement to the residence of other persons on supervised release and to the residence of persons who are in the custody of the department of corrections and regarding whom a sex offender notification bulletin has been issued to law enforcement agencies under s. 301.46 (2m) (a) or (am). If the person is a serious child sex offender, the plan shall address the person's need for pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen. The department may contract with a county department, under s. 51.42 (3) (aw) 1. d., with another public agency, or with a private agency to provide the treatment and services identified in the plan. The plan shall specify who will be responsible for providing the treatment and services identified in the plan. The plan shall be presented to the court for its approval within 60 days after the court finding that the person is appropriate for supervised release, unless the department, county department, and person to be released request additional time to develop the plan. If the county department of the person's county of residence declines to prepare a plan, the department may arrange for another county to prepare the plan if that county agrees to prepare the plan and if the person will be living in that county. If the department is unable to arrange for another county to prepare a plan, the court shall designate a county department to prepare the plan, order the county department to prepare the plan, and place the person on supervised release in that county, except that the court may not so designate the county department in any county where there is a facility in which persons committed to institutional care under this chapter are placed unless that county is also the person's county of residence.

AB1, s. 1154 Section 1154. 980.12 (title) of the statutes is amended to read:

AB1,383,18 980.12 (title) Department duties; costs.

AB1, s. 1155 Section 1155. 980.12 (1) of the statutes is renumbered 980.12.

AB1, s. 1156 Section 1156. 980.12 (2) of the statutes is repealed.

AB1, s. 1157 Section 1157. 1997 Wisconsin Act 283, section 454 (1) (f) is amended to read:

AB1,384,2 [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.

AB1, s. 1158 Section 1158. 1999 Wisconsin Act 113, section 32 (7) is amended to read: