302.113(9h)(c)1.
1. The person is serving the confinement portion of a bifurcated sentence for a misdemeanor or a Class F to Class I felony that is not a violent offense, as defined in
s. 301.048 (2) (bm) 1.
302.113(9h)(c)2.
2. The prison social worker or extended supervision agent of record has reason to believe that the person will be able to maintain himself or herself while not confined without engaging in assaultive activity.
302.113(9h)(c)3.
3. The release to extended supervision date is not more than 12 months before the person's extended supervision eligibility date.
302.113(9h)(d)
(d) If the conditions under
pars. (b) and
(c) are met, the department may modify, in the manner specified under
par. (e), the sentence of any person by releasing him or her to extended supervision under this subsection, and, if the department releases the person to extended supervision, the department shall:
302.113(9h)(d)1.
1. Notify the office of the court that participated in the trial or that accepted the person's plea of guilty or no contest, whichever is applicable.
302.113(9h)(d)2.
2. Notify the office of the district attorney that participated in the trial of the person or that prepared for proceedings under
s. 971.08 regarding the person's plea of guilty or no contest, whichever is applicable.
302.113(9h)(e)
(e) The department may modify a person's bifurcated sentence under this subsection only as follows:
302.113(9h)(e)1.
1. The department shall reduce the term of confinement in prison portion of the person's bifurcated sentence in a manner that provides for the release of the person to extended supervision within 30 days after the date on which the department modifies the bifurcated sentence.
302.113(9h)(e)2.
2. The department shall lengthen the term of extended supervision imposed so that the total length of the bifurcated sentence originally imposed does not change.
302.113(9h)(f)
(f) This subsection does not apply to any of the following:
302.113(9h)(f)2.
2. A person who has, in his or her lifetime, been convicted of or found not guilty by reason of mental disease or defect of a sex offense, as defined in
s. 301.45 (1d) (b).
302.113(9h)(f)3.
3. A person who has, in his or her lifetime, been found to have committed a sex offense in another jurisdiction, as defined in
s. 301.45 (1d) (am).
302.113(10)
(10) The department may promulgate rules establishing guidelines and criteria for the exercise of discretion under this section.
302.113 Annotation
A hearing to determine the length of reconfinement under sub. (9) is akin to sentencing. Both are reviewed by appellate courts to determine whether the court erroneously exercised its discretion. State v. Brown, 2006 WI 131,
298 Wis. 2d 37,
725 N.W.2d 262,
05-0584.
302.113 Annotation
While the recommendation of the department of corrections may be helpful and should be considered, the trial court owes no deference to the department's sentencing recommendation after revocation of an offender's extended supervision. The court should also consider the nature and severity of the original offense, the client's institutional conduct record, and the client's conduct and the nature of the violation of terms and conditions during extended supervision, as well as the amount of incarceration necessary to protect the public from the risk of further criminal activity. The court should impose the minimum amount of confinement consistent with the protection of the public, the gravity of the offense, and the defendant's rehabilitative needs. State v. Brown, 2006 WI 131,
298 Wis. 2d 37,
725 N.W.2d 262,
05-0584.
302.113 Annotation
The department of corrections and the division of hearings and appeals had jurisdiction to revoke extended supervision for a violation of the rules of supervision when an inmate was erroneously released to supervision while serving a bifurcated sentence and the initial term of incarceration had not been completed. Rupinski v. Smith, 2007 WI App 4,
297 Wis. 2d 749,
728 N.W.2d 1,
05-1760.
302.113 Annotation
Under Brown the defendant has a right to allocution at a reconfinement hearing before the court pronounces its decision. State v. Hines, 2007 WI App 39,
300 Wis. 2d 485,
730 N.W.2d 434,
06-0846.
302.113 Annotation
When a person is serving consecutive indeterminate and determinate sentences, extended supervision and parole are to be treated as one continuous period, and both may be revoked upon violation of the conditions imposed. Thomas v. Schwarz, 2007 WI 57,
300 Wis. 2d 381,
732 N.W.2d 1,
05-1487.
302.113 Annotation
Sub. (9) (am) governs reconfinement procedure and sets forth the limits of a court's exercisable discretion. It does not provide discretion for the court to consider eligibility for the challenge incarceration program or the earned release program under s. 973.01 (3g) and (3m). State v. Hall, 2007 WI App 168,
304 Wis. 2d 504,
737 N.W.2d 13,
06-1439.
302.113 Annotation
The original sentencing transcript can be an important source of information in a reconfinement hearing and is generally readily available, but a circuit court is not required to read the original sentencing transcript in every case. Rather, the court should be familiar with the case and can gain the requisite familiarity in a number of ways that may differ from case to case. The court must decide which factors are relevant for consideration in any given case and use its discretion as to how it ascertains the information needed to consider the relevant factors. State v. Walker, 2008 WI 34,
308 Wis. 2d 666,
747 N.W.2d 673,
06-0562.
302.113 Annotation
Sections 302.113 (4), 973.01, and 973.15 establish that consecutive periods of extended supervision are to be served consecutively, aggregated into one continuous period, so that revocation of extended supervision at any time allows revocation as to all consecutive sentences. State v. Collins, 2008 WI App 163,
314 Wis. 2d 653,
760 N.W.2d 438,
07-2580.
302.113 Annotation
Sub. (9) (b) keeps intact the bifurcated-sentence scheme established by s. 973.01. It indubitably follows that the reconfinement court has the same authority to impose conditions of extended supervision that follows the period of reconfinement as an original sentencing court has to impose conditions on the extended supervision that follows the period of initial confinement. State v. Harris, 2008 WI App 189,
763 Wis. 2d 206,
763 N.W.2d 206,
08-0778.
302.113 Annotation
When a person waives a revocation hearing, the department of corrections (DOC) is required by sub. (9) (at) to make a recommendation to the court concerning the period of time the person should be returned to prison. The recommendation is more appropriately analogized to a presentence investigation report (PSI) at the original sentencing than a plea agreement. The securing of a PSI is solely within the judicial function to assist the judge in selecting an appropriate sentence. The DOC does not function as an agent of either the state or the defense in fulfilling its PSI role under this section and the prosecutor is not bound by a recommendation from the DOC. State v. Washington, 2009 WI App 148,
321 Wis. 2d 508,
775 N.W.2d 535,
08-2359.
302.113 Annotation
There is no indication Truth-in-Sentencing altered the substantive nature of the reconfinement decision. Rather, as before Truth-in-Sentencing, the reconfinement determination is part of the revocation process and therefore not a criminal proceeding. State v. Brimer, 2010 WI App 57,
324 Wis. 2d 408,
781 N.W.2d 726,
09-0817.
302.113 Annotation
Taking Reconfinement Hearings Seriously. Bizzaro. Wis. Law. Apr. 2007.
302.1135
302.1135
Release to extended supervision for extraordinary health circumstances. 302.1135(1)(b)
(b) "Extraordinary health condition" means a condition afflicting a person, such as advanced age, infirmity, or disability of the person or a need for medical treatment or services not available within a correctional institution.
302.1135(2)
(2) An inmate who is serving a bifurcated sentence imposed under
s. 973.01 or, notwithstanding
s. 973.014 (1g) (a) or
(2), an inmate who is serving a life sentence imposed under
s. 973.014 may seek modification of the sentence in the manner specified in
sub. (6) if he or she meets one of the following criteria:
302.1135(2)(a)
(a) The inmate is 65 years of age or older and has served at least 5 years of the term of confinement in prison portion of the bifurcated sentence for a sentence imposed under
s. 973.01 or has served at least 5 years in prison for a life sentence imposed under
s. 973.014.
302.1135(2)(b)
(b) The inmate is 60 years of age or older and has served at least 10 years of the term of confinement in prison portion of the bifurcated sentence for a sentence imposed under
s. 973.01 or has served at least 10 years in prison for a life sentence imposed under
s. 973.014.
302.1135(3)
(3) An inmate who meets the criteria under
sub. (2) may submit a petition to the commission requesting a modification of the inmate's sentence in the manner specified in
sub. (6). If the inmate alleges in the petition that he or she has an extraordinary health condition, the inmate shall attach to the petition affidavits from 2 physicians setting forth a diagnosis that the inmate has an extraordinary health condition.
302.1135(4)
(4) When the commission receives under
sub. (3) an inmate's petition for modification of the inmate's sentence, the commission shall set a hearing to determine whether the public interest would be served by a modification of the inmate's sentence in the manner specified in
sub. (6). The inmate and the district attorney have the right to be present at the hearing, and any victim of the inmate's crime has the right to be present at the hearing and to provide a statement concerning the modification of the inmate's sentence. The commission shall order such notice of the hearing date as it considers adequate to be given to the inmate, the attorney representing the inmate, if applicable, and the district attorney. Victim notification shall be provided as specified under
sub. (7).
302.1135(5)
(5) At a hearing scheduled under
sub. (4), the inmate has the burden of proving by the greater weight of the credible evidence that a modification of the sentence in the manner specified in
sub. (6) would serve the public interest. If the inmate proves that a modification of the sentence in the manner specified in
sub. (6) would serve the public interest, the commission shall modify the inmate's sentence in that manner. If the inmate does not prove that a modification of the sentence in the manner specified in
sub. (6) would serve the public interest, the commission shall deny the inmate's petition for modification of the sentence.
302.1135(6)
(6) The commission may modify an inmate's sentence under this section only as follows:
302.1135(6)(a)
(a) If the inmate was sentenced to a bifurcated sentence under
s. 973.01, the commission shall do all of the following:
302.1135(6)(a)1.
1. Reduce the term of confinement in prison portion of the inmate's bifurcated sentence in a manner that provides for the release of the inmate to extended supervision within 30 days after the date on which the commission modifies the bifurcated sentence.
302.1135(6)(a)2.
2. Lengthen the term of extended supervision imposed so that the total length of the bifurcated sentence originally imposed does not change.
302.1135(6)(b)
(b) If the inmate was sentenced to life imprisonment under
s. 973.014, notwithstanding
s. 973.014 (1g) (a) or
(2), the commission shall release the inmate to extended supervision within 30 days after the date on which the commission modifies the sentence and shall impose the term of extended supervision so that the total length of the sentence originally imposed does not change.
302.1135(7)(b)
(b) When the commission sets a hearing date under
sub. (4), the commission shall send a notice of hearing to the victim of the crime committed by the inmate, if the victim has submitted a card under
par. (c) requesting notification. The notice shall inform the victim that he or she may appear at the hearing scheduled under
sub. (4) and shall inform the victim of the manner in which he or she may provide a statement concerning the modification of the inmate's sentence in the manner provided in
sub. (6). The commission shall make a reasonable attempt to send the notice of hearing to the last-known address of the inmate's victim, postmarked at least 10 days before the date of the hearing.
302.1135(7)(c)
(c) The commission shall design and prepare cards for a victim to send to the commission. The cards shall have space for a victim to provide his or her name and address, the name of the applicable inmate, and any other information that the commission determines is necessary. The commission shall provide the cards, without charge, to district attorneys. District attorneys shall provide the cards, without charge, to victims. Victims may send completed cards to the commission. All commission records or portions of records that relate to mailing addresses of victims are not subject to inspection or copying under
s. 19.35 (1). Before any written statement of a victim is made a part of the documentary record considered in connection with a hearing under this section, the commission shall obliterate from the statement all references to the mailing addresses of the victim. A victim who attends an interview or hearing under this section may not be required to disclose at the interview or hearing his or her mailing addresses.
302.1135(8)
(8) An inmate may seek review of a decision under
sub. (5) to deny the inmate's petition for modification of the inmate's sentence only by the common law writ of certiorari. The state may appeal a decision under
sub. (5) to grant an inmate's petition for a modification of the inmate's sentence. In an appeal under this subsection, the reviewing court may reverse a decision granting or denying a petition for modification of a sentence only if it determines that the commission erroneously exercised its discretion in granting or denying the petition.
302.1135(9)
(9) If the commission denies an inmate's petition under
sub. (5), the inmate may not file another petition within one year after the date of the denial.
302.1135(10)
(10) An inmate eligible to seek modification of his or her sentence under this section has a right to be represented by counsel in proceedings under this section. An inmate, or the department on the inmate's behalf, may apply to the state public defender for determination of indigency and appointment of counsel under
s. 977.05 (4) (jm) before or after the filing of a petition with the commission under
sub. (3).
302.1135 History
History: 2009 a. 28 ss.
2729j to
2738,
2739d to
2739j.
302.114
302.114
Petition for release and release to extended supervision for felony offenders serving life sentences. 302.114(2)
(2) Except as provided in
subs. (3) and
(9), an inmate subject to this section may petition the sentencing court for release to extended supervision after he or she has served 20 years, if the inmate was sentenced under
s. 973.014 (1g) (a) 1., or after he or she has reached the extended supervision eligibility date set by the court, if the inmate was sentenced under
s. 973.014 (1g) (a) 2.
302.114(3)(a)(a) The warden or superintendent shall keep a record of the conduct of each inmate subject to this section, specifying each infraction of the rules. If any inmate subject to this section violates any regulation of the prison or refuses or neglects to perform required or assigned duties, the department may extend the extended supervision eligibility date set under
s. 973.014 (1g) (a) 1. or
2., whichever is applicable, as follows:
302.114(3)(b)
(b) In addition to the sanctions under
par. (a), if an inmate subject to this section is placed in adjustment, program or controlled segregation status, the department may extend the extended supervision eligibility date set under
s. 973.014 (1g) (a) 1. or
2., whichever is applicable, by a number of days equal to 50% of the number of days spent in segregation status. In administering this paragraph, the department shall use the definition of adjustment, program or controlled segregation status under departmental rules in effect at the time an inmate is placed in that status.
302.114(3)(c)
(c) An inmate subject to this section who files an action or special proceeding, including a petition for a common law writ of certiorari, to which
s. 807.15 applies shall have his or her extended supervision eligibility date set under
s. 973.014 (1g) (a) 1. or
2., whichever is applicable, extended by the number of days specified in the court order prepared under
s. 807.15 (3). Upon receiving a court order issued under
s. 807.15, the department shall recalculate the date on which the inmate to whom the order applies will be entitled to petition for release to extended supervision and shall inform the inmate of that date.
302.114(4)
(4) All consecutive sentences imposed for crimes committed on or after December 31, 1999, shall be computed as one continuous sentence. An inmate subject to this section shall serve any term of extended supervision after serving all terms of confinement in prison.
302.114(5)(a)(a) An inmate subject to this section who is seeking release to extended supervision shall file a petition for release to extended supervision with the court that sentenced him or her. An inmate may not file an initial petition under this paragraph earlier than 90 days before his or her extended supervision eligibility date. If an inmate files an initial petition for release to extended supervision at any time earlier than 90 days before his or her extended supervision eligibility date, the court shall deny the petition without a hearing.
302.114(5)(am)
(am) The inmate shall serve a copy of a petition for release to extended supervision on the district attorney's office that prosecuted him or her, and the district attorney shall file a written response to the petition within 45 days after the date he or she receives the petition.
302.114(5)(b)
(b) After reviewing a petition for release to extended supervision and the district attorney's response to the petition, the court shall decide whether to hold a hearing on the petition or, if it does not hold a hearing, whether to grant or deny the petition without a hearing. If the court decides to hold a hearing under this paragraph, the hearing shall be before the court without a jury. The office of the district attorney that prosecuted the inmate shall represent the state at the hearing.
302.114(5)(c)
(c) Before deciding whether to grant or deny the inmate's petition, the court shall allow a victim, as defined in
s. 950.02 (4), to make a statement or submit a statement concerning the release of the inmate to extended supervision. The court may allow any other person to make or submit a statement under this paragraph. Any statement under this paragraph must be relevant to the release of the inmate to extended supervision.
302.114(5)(cm)
(cm) A court may not grant an inmate's petition for release to extended supervision unless the inmate proves, by clear and convincing evidence, that he or she is not a danger to the public.
302.114(5)(d)
(d) If the court grants the inmate's petition for release to extended supervision, the court may impose conditions on the term of extended supervision.
302.114(5)(e)
(e) If the court denies the inmate's petition for release to extended supervision, the court shall specify the date on which the inmate may file a subsequent petition under this section. An inmate may file a subsequent petition at any time on or after the date specified by the court, but if the inmate files a subsequent petition for release to extended supervision before the date specified by the court, the court may deny the petition without a hearing.
302.114(5)(f)
(f) An inmate may appeal an order denying his or her petition for release to extended supervision. In an appeal under this paragraph, the appellate court may reverse an order denying a petition for release to extended supervision only if it determines that the sentencing court erroneously exercised its discretion in denying the petition for release to extended supervision.
302.114(6)(b)
(b) If an inmate petitions a court under
sub. (5) or
(9) (bm) for release to extended supervision under this section, the clerk of the circuit court in which the petition is filed shall send a copy of the petition and, if a hearing is scheduled, a notice of hearing to the victim of the crime committed by the inmate, if the victim has submitted a card under
par. (e) requesting notification.
302.114(6)(c)
(c) The notice under
par. (b) shall inform the victim that he or she may appear at the hearing under
sub. (5) or
(9) (bm), if a hearing is scheduled, and shall inform the victim of the manner in which he or she may provide written statements concerning the inmate's petition for release to extended supervision.
302.114(6)(d)
(d) The clerk of the circuit court shall make a reasonable attempt to send a copy of the inmate's petition to the last-known address of the victim within 7 days of the date on which the petition is filed and shall make a reasonable attempt to send the notice of hearing, if a hearing is scheduled, to the last-known address of the persons victim, postmarked at least 10 days before the date of the hearing.
302.114(6)(e)
(e) The director of state courts shall design and prepare cards for a victim to send to the clerk of the circuit court in which the inmate is convicted and sentenced. The cards shall have space for a victim to provide his or her name and address, the name of the applicable inmate and any other information the director of state courts determines is necessary. The director of state courts shall provide the cards, without charge, to clerks of circuit court. Clerks of circuit court shall provide the cards, without charge, to victims. Victims may send completed cards to the clerk of the circuit court in which the inmate was convicted and sentenced. All court records or portions of records that relate to mailing addresses of victims are not subject to inspection or copying under
s. 19.35 (1).
302.114(7)
(7) Before a person is released to extended supervision under this section, the department shall notify the municipal police department and the county sheriff for the area where the person will be residing. The notification requirement does not apply if a municipal department or county sheriff submits to the department a written statement waiving the right to be notified. If applicable, the department shall also comply with
s. 304.063.
302.114(8)
(8) Any inmate released to extended supervision under this section is subject to all conditions and rules of extended supervision. The department may set conditions of extended supervision in addition to any conditions of extended supervision required under
s. 302.116, if applicable, or set by the court under
sub. (5) (d) if the conditions set by the department do not conflict with the court's conditions.
302.114(8m)(a)(a) Every person released to extended supervision under this section remains in the legal custody of the department. If the department alleges that any condition or rule of extended supervision has been violated by the person, the department may take physical custody of the person for the investigation of the alleged violation.
302.114(8m)(b)
(b) If a person released to extended supervision under this section signs a statement admitting a violation of a condition or rule of extended supervision, the department may, as a sanction for the violation, confine the person for up to 90 days in a regional detention facility or, with the approval of the sheriff, in a county jail. If the department confines the person in a county jail under this paragraph, the department shall reimburse the county for its actual costs in confining the person from the appropriations under
s. 20.410 (1) (ab) and
(b). Notwithstanding
s. 302.43, the person is not eligible to earn good time credit on any period of confinement imposed under this subsection.
302.114(9)(am)
(am) If a person released to extended supervision under this section or under
s. 302.1135 violates a condition of extended supervision, the reviewing authority may revoke the extended supervision of the person. If the extended supervision of the person is revoked, the person shall be returned to the circuit court for the county in which the person was convicted of the offense for which he or she was on extended supervision, and the court shall order the person to be returned to prison for a specified period of time before he or she is eligible for being released again to extended supervision. The period of time specified under this paragraph may not be less than 5 years and may be extended in accordance with
sub. (3).
302.114(9)(b)
(b) When a person is returned to court under
par. (am) after revocation of extended supervision, the reviewing authority shall make a recommendation to the court concerning the period of time for which the person should be returned to prison before being eligible for release to extended supervision. The period of time recommended under this paragraph may not be less than 5 years.
