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.,
am.,
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.,
am.,
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 was not cruel and unusual even though the conviction involved the stealing of 2 boxes of candy, which carried a maximum sentence of 6 months. Hanson v. State,
48 Wis. 2d 203,
179 N.W.2d 909 (1970).
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 (1976).
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. 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 ch. 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),
95-3392.
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),
96-2703.
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),
97-3682.
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),
98-3260.
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,
604 N.W.2d 898 (Ct. App. 1999),
99-0746.
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,
99-1158.
939.62 Annotation
Because s. 941.29 (2m), the second offense felon in possession of a firearm statute, defines an additional element to the crime in s. 941.29 (2), felon in possession of a firearm, it creates a separate offense, and not a penalty enhancer, and will support the application of this section. State v. Gibson, 2000 WI App 207,
238 Wis. 2d 547,
618 N.W.2d 248,
99-2612.
939.62 Annotation
A circuit court may not determine the validity of a prior conviction during an enhanced sentencing proceeding predicated on the prior conviction unless the offender alleges that a violation of the right to a lawyer occurred in the prior conviction. The offender may use whatever means are available to challenge the other conviction in another forum, and if successful, seek to reopen the enhanced sentence. State v. Hahn, 2000 WI 118,
238 Wis. 2d 889,
618 N.W.2d 528,
99-0554.
939.62 Annotation
When two penalty enhancers are applicable to the same crime, the length of the second penalty enhancer is based on the maximum term for the base crime as extended by the first penalty enhancer. State v. Quiroz, 2002 WI App 52,
251 Wis. 2d 245,
641 N.W.2d 715,
01-1549.
939.62 Annotation
For purposes of applying this section, the definition of "crime" in s. 939.12 as "conduct which is prohibited by state law and punishable by fine or imprisonment or both" is applicable to statutes outside of chs. 939 to 948 and 951. State v. Sveum, 2002 WI App 105,
254 Wis. 2d 868,
648 N.W.2d 496,
01-0230.
939.62 Annotation
An uncertified copy of a prior judgment of conviction may be used to prove a convicted defendant's status as a habitual criminal. The rules of evidence do not apply to documents offered during a circuit court's presentence determination of whether a qualifying prior conviction exists. The state has the burden of proof and must offer proof beyond a reasonable doubt of the conviction. State v. Saunders, 2002 WI 107,
255 Wis. 2d 589,
649 N.W.2d 263,
01-0271.
939.62 Annotation
A defendant's admission that an out-of-state crime is a serious felony does not relieve a court of its obligation to make an independent determination on that issue. The trial court's failure to make that finding did not prevent the appellate court from making it. State v. Collins, 2002 WI App 177,
256 Wis. 2d 697,
649 N.W.2d 325,
01-2185.
939.62 Annotation
A defendant convicted of a second or subsequent OWI is subject to the penalty enhancements provided for in both ss. 346.65 (2) and 939.62, if the application of each enhancer is based on a separate and distinct prior conviction or convictions. State v. Delaney, 2003 WI 9,
259 Wis. 2d 77,
658 N.W.2d 416,
01-1051.
939.62 Annotation
A defendant convicted of a second or subsequent controlled substance offense is subject to the penalty enhancements provided for in both ss. 939.62 and 961.48 (2) if the application of each enhancer is based on a separate and distinct prior conviction or convictions. State v. Maxey, 2003 WI App 94,
264 Wis. 2d 878,
663 N.W.2d 811,
02-1171.
939.62 Annotation
In determining whether a prior offense was a serious child sex offense under sub. (2m), a court may apply an elements only test but may also conduct a comparable analysis by considering whether the defendant's conduct under the statute governing the prior conviction would constitute a felony under the current statute. State v. Wield, 2003 WI App 179,
266 Wis. 2d 872,
668 N.W.2d 823,
02-2242.
939.62 Annotation
For purposes of computation of the 5-year period under sub. (2), time spent in the least restrictive phase of the intensive sanctions program is time spent in actual confinement serving a criminal sentence that is excluded. The intensive sanctions program operates as a correctional institution, is deemed a confinement classification, and is more restrictive than ordinary probation or parole supervision or extended supervision. State v. Pfeil, 2007 WI App 241,
306 Wis. 2d 237,
742 N.W.2d 573,
06-2771.
939.62 Annotation
A trial court judge, rather than a jury, is allowed to determine the applicability of a defendant's prior conviction for sentence enhancement purposes when the necessary information concerning the prior conviction can be readily determined from an existing judicial record. State v. LaCount, 2008 WI 59,
310 Wis. 2d 85,
750 N.W.2d 780,
06-0672.
939.62 Annotation
Evidence of repeater status may be submitted any time following the jury verdict up until the actual sentencing. State v. Kashney, 2008 WI App 164,
314 Wis. 2d 623,
761 N.W.2d 672,
07-2687.
939.62 Annotation
The application of the persistent repeater statute requires a particular sequence of convictions: 1) the conviction date for the first offense must have preceded the violation date for the second offense, and 2) the conviction date for the second offense must have preceded the violation date for the current Wisconsin offense. State v. Long, 2009 WI 36,
317 Wis. 2d 92,
765 N.W.2d 557,
07-2307.
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.
939.621 Annotation
When two penalty enhancers are applicable to the same crime, the length of the second penalty enhancer is based on the maximum term for the base crime as extended by the first penalty enhancer. State v. Quiroz, 2002 WI App 52,
251 Wis. 2d 245,
641 N.W.2d 715,
01-1549.
939.63
939.63
Penalties; use of a dangerous weapon. 939.63(1)
(1) 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)
(a) The maximum term of imprisonment for a misdemeanor may be increased by not more than 6 months.
939.63(1)(b)
(b) 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)(c)
(c) 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)(d)
(d) The maximum term of imprisonment for a felony not specified in
par. (b) or
(c) may be increased by not more than 3 years.
939.63(2)
(2) The increased penalty provided in this section does not apply if possessing, using or threatening to use a dangerous weapon is an essential element of the crime charged.
939.63(3)
(3) This section applies only to crimes specified under
chs. 939 to
951 and
961.
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),
95-0770.
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).
939.63 Annotation
Under Peete, there is sufficient evidence of possession if the evidence allows a reasonable jury to find beyond a reasonable doubt that the defendant possessed a dangerous weapon in order to use it or threaten to use it, even if the defendant did not use or threaten to use it in the commission of the crime. State v. Page, 2000 WI App 267,
240 Wis. 2d 276,
622 N.W.2d 285,
99-2015.
939.63 Annotation
When two penalty enhancers are applicable to the same crime, the length of the second penalty enhancer is based on the maximum term for the base crime as extended by the first penalty enhancer. State v. Quiroz, 2002 WI App 52,
251 Wis. 2d 245,
641 N.W.2d 715,
01-1549.
939.632
939.632
Penalties; violent crime in a school zone. 939.632(1)(a)
(a) "School" means a public school, parochial or private school, or tribal school, as defined in
s. 115.001 (15m), that provides an educational program for one or more grades between grades 1 and 12 and that is commonly known as an elementary school, middle school, junior high school, senior high school, or high school.
939.632(1)(c)
(c) "School premises" means any school building, grounds, recreation area or athletic field or any other property owned, used or operated for school administration.
939.632(1)(d)3.
3. On a school bus or public transportation transporting students to and from a public or private school or to and from a tribal school, as defined in
s. 115.001 (15m).
939.632(1)(d)3m.
3m. At school bus stops where students are waiting for a school bus or are being dropped off by a school bus.
939.632(1)(e)1.
1. Any felony under
s. 940.01,
940.02,
940.03,
940.05,
940.09 (1c),
940.19 (2),
(4) or
(5),
940.21,
940.225 (1),
(2) or
(3),
940.235,
940.305,
940.31,
941.20,
941.21,
943.02,
943.06,
943.10 (2),
943.23 (1g),
943.32 (2),
948.02 (1) or
(2),
948.025,
948.03 (2) (a) or
(c),
948.05,
948.051,
948.055,
948.07,
948.08,
948.085, or
948.30 (2) or under
s. 940.302 (2) if
s. 940.302 (2) (a) 1. b. applies.
939.632(2)
(2) If a person commits a violent crime in a school zone, the maximum term of imprisonment is increased as follows:
939.632(2)(a)
(a) If the violent crime is a felony, the maximum term of imprisonment is increased by 5 years.
939.632(2)(b)
(b) If the violent crime is a misdemeanor, the maximum term of imprisonment is increased by 3 months and the place of imprisonment is the county jail.
939.632(3)(a)(a) In addition to any other penalties that may apply to the crime under
sub. (2), the court may require the person to complete 100 hours of community service work for a public agency or a nonprofit charitable organization. The court shall ensure that the defendant is provided a written statement of the terms of the community service order. Any organization or agency acting in good faith to which a defendant is assigned under an order under this paragraph has immunity from any civil liability in excess of $25,000 for acts or omissions by or impacting on the defendant.
939.632(3)(b)
(b) The court shall not impose the requirement under
par. (a) if the court determines that the person would pose a threat to public safety while completing the requirement.
939.632(4)
(4) This section provides for the enhancement of the penalties applicable 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).
939.632 Annotation
The violent crime in a school zone penalty enhancer is not unconstitutional as applied to the defendant. The legislature seeks to deter violent crime near schools in an effort to create a safety zone around schools. The 1,000-foot perimeter is a reasonable distance to try to accomplish this legislative goal. State v. Quintana, 2007 WI App 29,
299 Wis. 2d 234,
729 N.W.2d 776,
06-0499.
939.645
939.645
Penalty; crimes committed against certain people or property. 939.645(1)(1) If a person does all of the following, the penalties for the underlying crime are increased as provided in
sub. (2):
