SB44: Bill Text

SB44,1035,20 973.017 (title) Bifurcated sentences; use Use of guidelines; consideration of aggravating and mitigating factors.

SB44, s. 2754 Section 2754. 973.017 (1) of the statutes, as created by 2001 Wisconsin Act 109, is renumbered 973.017 (1) (intro.) and amended to read:

SB44,1035,24 973.017 (1) Definition. (intro.) In this section, "sentencing decision" means the following:

SB44,1036,5 (a) With respect to a crime for which the court may impose a bifurcated sentence under s. 973.01, 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.

SB44, s. 2755 Section 2755. 973.017 (1) (b) of the statutes is created to read:

SB44,1036,9 973.017 (1) (b) With respect to any other crime, a decision as to whether to impose a jail sentence or place a person on probation and a decision as to the length of a jail sentence, the amount of a fine, and the length of a term of probation.

SB44, s. 2756 Section 2756. 973.017 (2) (a) of the statutes, as created by 2001 Wisconsin Act 109, is renumbered 973.017 (2g) and amended to read:

SB44,1036,19 973.017 (2g) Use of advisory guidelines. If the offense is a felony When a court makes a sentencing decision concerning a person convicted of a felony committed on or after February 1, 2003, the court shall consider 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. This subsection does not apply if the sentencing commission has adopted mandatory sentencing guidelines for the felony under s. 973.31.

SB44, s. 2757 Section 2757. 973.017 (2r) of the statutes is created to read:

SB44,1037,2 973.017 (2r) Use of mandatory guidelines. If the sentencing commission has adopted mandatory sentencing guidelines for a crime under s. 973.31, the court, when making a sentencing decision concerning a person convicted of that crime, shall impose a sentence of the kind and within the range described in the applicable sentencing guideline unless the court finds that there is an aggravating or mitigating factor that warrants the imposition of a different kind of sentence or a sentence outside of the range described in the guideline.

SB44, s. 2758 Section 2758. 973.017 (10) of the statutes, as created by 2001 Wisconsin Act 109, is amended to read:

SB44,1037,13 973.017 (10) Use of advisory guidelines; no right to or basis for appeal. The requirement under sub. (2) (a) (2g) 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. This subsection does not apply to a sentencing decision that is made in connection with a crime for which the sentencing commission has adopted mandatory sentencing guidelines under s. 973.31.

SB44, s. 2759 Section 2759. 973.045 (2) of the statutes is amended to read:

SB44,1037,18 973.045 (2) After the clerk determines the amount due, the clerk of court shall collect and transmit the amount to the county treasurer under s. 59.40 (2) (m). The county treasurer shall then make payment to the state treasurer secretary of administration under s. 59.25 (3) (f) 2.

SB44, s. 2760 Section 2760. 973.045 (3) (a) (intro.) of the statutes is amended to read:

SB44,1037,24 973.045 (3) (a) (intro.) The clerk shall record the crime victim and witness surcharge in 2 parts. Part A is the portion that the state treasurer secretary of administration shall credit to the appropriation account under s. 20.455 (5) (g) and part B is the portion that the state treasurer secretary of administration shall credit to the appropriation account under s. 20.455 (5) (gc), as follows:

SB44, s. 2761 Section 2761. 973.045 (4) of the statutes is amended to read:

SB44,1038,5 973.045 (4) If an inmate in a state prison or a person sentenced to a state prison has not paid the crime victim and witness assistance surcharge under this section, the department shall assess and collect the amount owed from the inmate's wages or other moneys. Any amount collected shall be transmitted to the state treasurer secretary of administration.

SB44, s. 2762 Section 2762. 973.046 (2) of the statutes is amended to read:

SB44,1038,10 973.046 (2) After the clerk of court determines the amount due, the clerk shall collect and transmit the amount to the county treasurer under s. 59.40 (2) (m). The county treasurer shall then make payment to the state treasurer secretary of administration under s. 59.25 (3) (f) 2.

SB44, s. 2763 Section 2763. 973.046 (3) of the statutes is amended to read:

SB44,1038,14 973.046 (3) All moneys collected from deoxyribonucleic acid analysis surcharges shall be deposited by the state treasurer secretary of administration as specified in s. 20.455 (2) (Lm) and utilized under s. 165.77.

SB44, s. 2764 Section 2764. 973.046 (4) of the statutes is amended to read:

SB44,1038,20 973.046 (4) If an inmate in a state prison or a person sentenced to a state prison has not paid the deoxyribonucleic acid analysis surcharge under this section, the department shall assess and collect the amount owed from the inmate's wages or other moneys. Any amount collected shall be transmitted to the state treasurer secretary of administration.

SB44, s. 2765 Section 2765. 973.055 (2) (a) of the statutes is amended to read:

SB44,1039,2 973.055 (2) (a) If the assessment is imposed by a court of record, after the court determines the amount due, the clerk of the court shall collect and transmit the amount to the county treasurer as provided in s. 59.40 (2) (m). The county treasurer shall then make payment to the state treasurer secretary of administration as provided in s. 59.25 (3) (f) 2.

SB44, s. 2766 Section 2766. 973.055 (2) (b) of the statutes is amended to read:

SB44,1039,8 973.055 (2) (b) If the assessment is imposed by a municipal court, after a determination by the court of the amount due, the court shall collect and transmit the amount to the treasurer of the county, city, town, or village, and that treasurer shall make payment to the state treasurer secretary of administration as provided in s. 66.0114 (1) (bm).

SB44, s. 2767 Section 2767. 973.055 (3) of the statutes is amended to read:

SB44,1039,12 973.055 (3) All moneys collected from domestic abuse assessments shall be deposited by the state treasurer secretary of administration in s. 20.435 (3) (hh) and utilized in accordance with s. 46.95.

SB44, s. 2768 Section 2768. 973.09 (3) (bm) 1. of the statutes is amended to read:

SB44,1039,17 973.09 (3) (bm) 1. At least 90 days before the expiration date of a probationer's period of probation, the department may notify the sentencing court and the district attorney that a probationer owes unpaid fees to the department under s. 304.073 or 304.074.

SB44, s. 2769 Section 2769. 973.09 (3) (bm) 3. of the statutes is amended to read:

SB44,1039,24 973.09 (3) (bm) 3. At a probation review hearing under subd. 2., the department has the burden of proving that the probationer owes unpaid fees under s. 304.073 or 304.074 and the amount of the unpaid fees. If the department proves by a preponderance of the evidence that the probationer owes unpaid fees under s. 304.073 or 304.074, the court may, by order, extend the period of probation for a stated period or modify the terms and conditions of probation.

SB44, s. 2770 Section 2770. 973.09 (3) (c) 1. of the statutes is amended to read:

SB44,1040,2 973.09 (3) (c) 1. The probationer has not made a good faith effort to discharge court-ordered payment obligations or to pay fees owed under s. 304.073 or 304.074.

SB44, s. 2771 Section 2771. 973.11 (1) (intro.) of the statutes is amended to read:

SB44,1040,16 973.11 (1) Placements. (intro.) If a person is convicted of or pleads guilty or no contest to one or more misdemeanors for which mandatory periods of imprisonment are not required, if the chief judge of the judicial administrative district has approved a volunteers in probation program established in the applicable county, and if the court decides that volunteer supervision under the program will likely benefit the person and the community and subject to the limitations under sub. (3), the court may withhold sentence or judgment of conviction and order that the person be placed with that volunteers in probation program. A person's participation in the program may not be used to conceal, withhold, or mask information regarding the judgment of conviction if the conviction is required to be included in a record kept under s. 343.23 (2) (a). Except as provided in sub. (3), the order shall provide any conditions that the court determines are reasonable and appropriate and may include, but need not be limited to, one or more of the following:

SB44, s. 2772 Section 2772. 973.20 (9) (b) of the statutes is amended to read:

SB44,1041,4 973.20 (9) (b) When a court orders a defendant to pay restitution is ordered under this section, the court shall inquire to see if an award has been made under ch. 949 and if the department of justice is subrogated to the cause of action under s. 949.15. If the restitution defendant is ordered to pay restitution in an amount that is less than or equal to the award under ch. 949, the defendant shall pay the restitution shall be paid only to the general fund department of justice and the restitution payments shall be credited to the appropriation account under s. 20.455 (5) (hm). If the restitution defendant is ordered to pay restitution in an amount that is greater than the award under ch. 949, the general fund shall receive defendant shall pay the department of justice an amount equal to the award under ch. 949, which amount shall be credited to the appropriation account under s. 20.455 (5) (hm), and the defendant shall pay the balance shall be paid to the victim.

SB44, s. 2773 Section 2773. 973.30 (1) (c) of the statutes is amended to read:

SB44,1041,10 973.30 (1) (c) Adopt and, as necessary, update advisory sentencing guidelines for felonies committed on or after July 30, 2002, to promote public safety in a cost-effective manner, to reflect changes promote consistency in sentencing practices, and to preserve the integrity of the criminal justice and correctional systems.

SB44, s. 2774 Section 2774. 973.30 (1) (cm) of the statutes is created to read:

SB44,1041,13 973.30 (1) (cm) Develop advisory guidelines regarding the appropriate use of alternatives to incarceration.

SB44, s. 2775 Section 2775. 973.31 of the statutes is created to read:

SB44,1041,16 973.31 Mandatory sentencing guidelines. (1) In this section, "commission" means the sentencing commission.

SB44,1041,23 (2) If the commission determines in the report required under 2003 Wisconsin Act .... (this act), section 9110 (1 ) that temporary sentencing guidelines adopted by the criminal penalties study committee created under 1997 Wisconsin Act 283 are not adequately promoting the objectives listed in s. 973.30 (1) (c), the commission shall adopt mandatory guidelines for sentencing decisions, as defined in s. 973.017 (1), for felonies and misdemeanors for which a court may impose a bifurcated sentence.

SB44,1042,4 (3) When adopting a mandatory sentencing guideline for a crime, the commission, subject to sub. (4), shall assign suggested ranges of punishment to promote the objectives listed in s. 973.30 (1) (c). The ranges of punishment shall be based upon the combination of offense and defendant characteristics in each case. The commission may also include any of the following as part of a mandatory sentencing guideline:

SB44,1042,5 (a) Conditions of extended supervision or probation to be imposed.

SB44,1042,8 (b) The length of a term of imprisonment to be imposed if, after the court withholds a sentence and places a defendant on probation, the court revokes probation.

SB44,1042,10 (c) Whether penalties should be imposed concurrently or consecutively if the defendant is convicted of more than one crime.

SB44,1042,13 (4) The commission may not adopt a mandatory sentencing guideline for a crime that calls for a range of punishment that conflicts with any provision of the statutes relating to penalties for that crime.

SB44,1042,21 (5) In general, in developing mandatory sentencing guidelines, the commission shall begin with crimes that result in the greatest number of bifurcated sentences being imposed. In general, the commission shall develop mandatory sentencing guidelines for Class G to I felonies, unclassified felonies, and misdemeanors for which a court may impose a bifurcated sentence before developing them for Class B to F felonies. Beginning with the crimes that are committed most frequently, the commission shall develop mandatory sentencing guidelines for crimes based on the frequency with which they are committed.

SB44, s. 2776 Section 2776. 977.01 of the statutes is renumbered 977.01 (intro.) and amended to read:

SB44,1042,25 977.01 Definitions. (intro.) In this chapter, unless the context requires otherwise, "board":

SB44,1043,1 (1) "Board" means the public defender board.

SB44, s. 2777 Section 2777. 977.01 (2) of the statutes, as affected by 2003 Wisconsin Act .... (this act), is amended to read:

SB44,1043,8 977.01 (2) "Public assistance" means relief provided by counties under s. 59.53 (21), Wisconsin works under ss. 49.141 to 49.161, medical assistance under subch. IV of ch. 49, low-income energy assistance under s. 16.385 16.27, weatherization assistance under s. 16.39 16.26, and the food stamp program under 7 USC 2011 to 2029.

SB44, s. 2778 Section 2778. 977.06 (1) (a) of the statutes is amended to read:

SB44,1043,14 977.06 (1) (a) Verify the information necessary to determine indigency under s. 977.07 (2). The information provided by a person seeking assigned counsel that is subject to verification shall include any social security numbers provided on an application under sub. (1m), income records, value of assets, eligibility for public assistance, as defined in s. 106.215 (1) (fm), and claims of expenses.

SB44, s. 2779 Section 2779. 978.001 (1c) of the statutes is created to read:

SB44,1043,18 978.001 (1c) "Assignable prosecutor" means an attorney employed by the state prosecutors board whom the board may assign to a prosecutorial unit under s. 978.14 (1) (d).

SB44, s. 2780 Section 2780. 978.03 (1) of the statutes is amended to read:

SB44,1044,6 978.03 (1) The district attorney of any prosecutorial unit having a population of 500,000 or more may appoint 5 deputy district attorneys and such assistant district attorneys as may be requested by the department of administration and authorized in accordance with s. 16.505. The district attorney shall rank the deputy district attorneys for purposes of carrying out duties under this section. The deputies, according to rank, may perform any duty of the district attorney who appointed him or her, under the district attorney's direction, or any duty of the district attorney to whose prosecutorial unit he or she is assigned by the state prosecutors board under s. 978.14 (1) (c). In the absence or disability of the district attorney, the deputies, according to rank, may perform any act required by law to be performed by the district attorney. Any such deputy must have practiced law in this state for at least 2 years prior to appointment under this section.

SB44, s. 2781 Section 2781. 978.03 (1m) of the statutes is amended to read:

SB44,1044,20 978.03 (1m) The district attorney of any prosecutorial unit having a population of 200,000 or more but not more than 499,999 may appoint 3 deputy district attorneys and such assistant district attorneys as may be requested by the department of administration and authorized in accordance with s. 16.505. The district attorney shall rank the deputy district attorneys for purposes of carrying out duties under this section. The deputies, according to rank, may perform any duty of the district attorney who appointed him or her, under the district attorney's direction, or any duty of the district attorney to whose prosecutorial unit he or she is assigned by the state prosecutors board under s. 978.14 (1) (c). In the absence or disability of the district attorney, the deputies, according to rank, may perform any act required by law to be performed by the district attorney. Any such deputy must have practiced law in this state for at least 2 years prior to appointment under this section.

SB44, s. 2782 Section 2782. 978.03 (2) of the statutes is amended to read:

SB44,1045,7 978.03 (2) The district attorney of any prosecutorial unit having a population of 100,000 or more but not more than 199,999 may appoint one deputy district attorney and such assistant district attorneys as may be requested by the department of administration and authorized in accordance with s. 16.505. The deputy may perform any duty of the district attorney who appointed him or her, under the district attorney's direction, or any duty of the district attorney to whose prosecutorial unit he or she is assigned by the state prosecutors board under s. 978.14 (1) (c). In the absence or disability of the district attorney, the deputy may perform any act required by law to be performed by the district attorney. The deputy must have practiced law in this state for at least 2 years prior to appointment under this section.

SB44, s. 2783 Section 2783. 978.03 (3) of the statutes is amended to read:

SB44,1045,16 978.03 (3) Any assistant district attorney under sub. (1), (1m) or (2) must be an attorney admitted to practice law in this state and, except as provided in ss. 978.043 and 978.044, may exercise any power of, or perform any duty required by law to be performed by, the district attorney. The appointing him or her or a district attorney to whose prosecutorial unit he or she is assigned by the state prosecutors board under s. 978.14 (1) (c). In consultation with the state prosecutors board, the district attorney of the prosecutorial unit under sub. (1), (1m), or (2) may appoint such temporary counsel as may be authorized by the department of administration.

SB44, s. 2784 Section 2784. 978.04 of the statutes is amended to read:

SB44,1046,2 978.04 Assistants in certain prosecutorial units. The district attorney of any prosecutorial unit having a population of less than 100,000 may appoint one or more assistant district attorneys as necessary to carry out the duties of his or her office and as may be requested by the department of administration authorized in accordance with s. 16.505. Any such assistant district attorney must be an attorney admitted to practice law in this state and, except as provided in s. 978.043, may exercise any power of, or perform any duty required by law to be performed by, the district attorney appointing him or her or a district attorney to whose prosecutorial unit he or she is assigned by the state prosecutors board under s. 978.14 (1) (c).

SB44, s. 2785 Section 2785. 978.043 of the statutes is amended to read:

SB44,1046,15 978.043 Assistants for prosecution of sexually violent person commitment cases. The district attorney of the prosecutorial unit that consists of Brown County and the district attorney of the prosecutorial unit that consists of Milwaukee County shall each assign one assistant district attorney in his or her prosecutorial unit to be a sexually violent person commitment prosecutor. An assistant district attorney assigned under this section to be a sexually violent person commitment prosecutor may engage only in the prosecution of sexually violent person commitment proceedings under ch. 980 and, at the request of the district attorney of the prosecutorial unit as permitted or required under rules adopted by the state prosecutors board under s. 978.14 (1) (c), may file and prosecute sexually violent person commitment proceedings under ch. 980 in any prosecutorial unit in this state.

SB44, s. 2786 Section 2786. 978.044 (2) (b) of the statutes is amended to read:

SB44,1046,20 978.044 (2) (b) Provide assistance to the district attorney in other counties relating to the establishment of restorative justice programs, as described in par. (a) as permitted or required under rules adopted by the state prosecutors board under s. 978.14 (1) (c).

SB44, s. 2787 Section 2787. 978.045 (1g) of the statutes is amended to read:

SB44,1047,2 978.045 (1g) A court on its own motion may appoint a special prosecutor under sub. (1r) or a district attorney may request a court to appoint a special prosecutor under that subsection. Before a court appoints a special prosecutor on its own motion or at the request of a district attorney for an appointment that exceeds 6 hours per case, the court or, subject to any applicable rule issued under s. 978.14 (1) (c), the district attorney shall request do all of the following:

SB44,1047,7 1. Request assistance from a district attorney, deputy district attorney, or assistant district attorney from other prosecutorial units or an assistant attorney general. A district attorney requesting the appointment of a special prosecutor, or a court if the court is appointing a special prosecutor on its own motion, shall notify the department of administration

SB44,1047,11 2. Notify the state prosecutors board, on a form provided by the department board, of the district attorney's or the court's inability basis for the proposed appointment and the efforts to obtain assistance from another prosecutorial unit or from an assistant attorney general.

SB44, s. 2788 Section 2788. 978.046 of the statutes is created to read:

SB44,1047,15 978.046 Assignable prosecutors. An assignable prosecutor who has been assigned to a prosecutorial unit may exercise any power of, or perform any duty required by law to be performed by, the district attorney of the prosecutorial unit.

SB44, s. 2789 Section 2789. 978.05 (1) of the statutes is amended to read:

SB44,1047,22 978.05 (1) Criminal actions. Except as otherwise provided by law, prosecute all criminal actions before any court within his or her prosecutorial unit. In determining whether to prosecute a case, the district attorney shall consider the guidelines adopted by the state prosecutors board under s. 978.14 (1) (b). The district attorney, however, is not bound by those guidelines, and there is no right to appeal based on a prosecutor's decision to depart in any way from any guideline.

SB44, s. 2790 Section 2790. 978.05 (8) (b) of the statutes is amended to read:

SB44,1048,10 978.05 (8) (b) Hire, employ, and supervise his or her staff and assignable prosecutors assigned to his or her prosecutorial unit under s. 978.14 (1) (d) and, subject to ss. 978.043 and 978.044, make appropriate assignments of the staff and assignable prosecutors throughout the prosecutorial unit. The district attorney may request the assistance of district attorneys, deputy district attorneys, or assistant district attorneys from other prosecutorial units, subject to any rules promulgated under s. 978.14 (1) (c), or assistant attorneys general, who then may appear and assist in the investigation and prosecution of any matter for which a district attorney is responsible under this chapter in like manner as assistants in the prosecutorial unit and with the same authority as the district attorney in the unit in which the action is brought. Nothing in this paragraph limits the authority of counties to regulate the hiring, employment, and supervision of county employees.

SB44, s. 2791 Section 2791. 978.06 (1) of the statutes is amended to read:

SB44,1048,15 978.06 (1) No district attorney, deputy district attorney or, assistant district attorney, or assignable prosecutor may receive any fee or reward from or on behalf of any prosecutor or any other individual for services in any prosecution or business to which it is the district attorney's official duty to attend.