SB388: Bill Text

freezing of assets

This bill creates a procedure for a court to freeze or seize assets from a defendant who has been charged with a financial exploitation crime when the victim is an adult at risk.

Under the bill, if a person is charged with a financial exploitation crime, the crime involves property valued at more than $2,500, and the crime victim is an adult at risk, a prosecuting attorney may file a petition with the court to freeze the funds, assets, or property of the person in an amount up to 100 percent of the alleged value of property involved in the person's pending criminal proceeding for purposes of preserving the property for future payment of restitution to the crime victim.

increased penalties

This bill allows a term of imprisonment that is imposed for a criminal conviction to be increased in length if the crime victim was an adult at risk. Under the bill, a maximum term of imprisonment of one year or less may be increased to not more than two years; a maximum term of imprisonment of more than one year but not more than ten years may be increased by not more than four years; and a maximum term of imprisonment of more than ten years may be increased by not more than six years. Under the bill, the term of imprisonment may be lengthened irrespective of whether the defendant knew that the crime victim was an adult at risk.

restraining orders for an adult at risk

This bill allows an adult at risk who is seeking a domestic violence, individual-at-risk, or harassment restraining order to appear in a court hearing by telephone or live audiovisual means.

Under current law, a person seeking a domestic violence, individual-at-risk, or harassment restraining order must appear in person in the courtroom at a hearing to obtain a restraining order.

Because this bill creates a new crime or revises a penalty for an existing crime, the Joint Review Committee on Criminal Penalties may be requested to prepare a report.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB388,1 Section 1 . 48.57 (3p) (g) 2. of the statutes is amended to read:

SB388,2,6 48.57 (3p) (g) 2. The person has had imposed on him or her a penalty specified in s. 939.64, 1999 stats., or s. 939.641, 1999 stats., or s. 939.6195, 939.62, 939.621, 939.623, 939.63 or 939.645 or has been convicted of a violation of the law of any other state or federal law under circumstances under which the person would be subject to a penalty specified in any of those sections if convicted in this state.

SB388,2 Section 2 . 303.07 (2) of the statutes is amended to read:

SB388,3,4 303.07 (2) When convicted persons are subject to commitment to the county jail, or to the Wisconsin state prisons under s. 939.62 (1) (a) or 939.623 (2) (a) for a term not exceeding 2 years, the court may instead commit them for equivalent terms to a reforestation camp authorized under sub. (1).

SB388,3 Section 3. 813.12 (1) (ac) of the statutes is created to read:

SB388,3,6 813.12 (1) (ac) “Adult at risk” has the meaning given in s. 55.01 (1e).

SB388,4 Section 4. 813.12 (5b) of the statutes is created to read:

SB388,3,10 813.12 (5b) Adult at risk petitioner. If the petitioner is an adult at risk, the court shall permit the petitioner to participate in hearings under this section by telephone or live audiovisual means.

SB388,5 Section 5. 813.123 (6g) of the statutes is created to read:

SB388,3,14 813.123 (6g) Individual at risk petitioner. If the petitioner is an individual at risk, the court shall permit the petitioner to participate in hearings under this section by telephone or live audiovisual means.

SB388,6 Section 6. 813.125 (5b) of the statutes is created to read:

SB388,3,18 813.125 (5b) Adult at risk petitioner. If the petitioner is an adult at risk, as defined in s. 55.01 (1e), the court shall permit the petitioner to participate in hearings under this section by telephone or live audiovisual means.

SB388,7 Section 7. 911.01 (4) (c) of the statutes is amended to read:

SB388,4,5 911.01 (4) (c) Miscellaneous proceedings. Proceedings for extradition or rendition; sentencing, granting or revoking probation, modification of a bifurcated sentence under s. 302.113 (9g), or adjustment of a bifurcated sentence under s. 973.195 (1r) or 973.198; hearings for freezing the assets of a person charged with financial exploitation of an adult at risk under s. 971.109; issuance of subpoenas or warrants under s. 968.375, arrest warrants, criminal summonses, and search warrants; hearings under s. 980.09 (2); proceedings under s. 971.14 (1r) (c); proceedings with respect to pretrial release under ch. 969 except where habeas corpus is utilized with respect to release on bail or as otherwise provided in ch. 969; or proceedings under s. 165.76 (6) to compel provision of a biological specimen for deoxyribonucleic acid analysis.

SB388,8 Section 8 . 939.623 of the statutes is created to read:

SB388,4,8 939.623 Increased penalty for adult at risk victims. (1) In this section, “adult at risk” has the meaning given in s. 55.01 (1e).

SB388,4,11 (2) If the crime victim is an adult at risk, and the present conviction is for any crime for which imprisonment may be imposed, the maximum term of imprisonment prescribed by law for that crime may be increased as follows:

SB388,4,13 (a) A maximum term of imprisonment of one year or less may be increased to not more than 2 years.

SB388,4,15 (b) A maximum term of imprisonment of more than one year but not more than 10 years may be increased by not more than 4 years.

SB388,4,17 (c) A maximum term of imprisonment of more than 10 years may be increased by not more than 6 years.

SB388,4,21 (3) This section applies irrespective of whether the defendant had actual knowledge that the crime victim was an adult at risk at the time the crime was committed. A mistake regarding the crime victim's status as an adult at risk is not a defense to an increased penalty under this section.

SB388,9 Section 9. 940.225 (1) (d) of the statutes is created to read:

SB388,5,2 940.225 (1) (d) Commits a violation under sub. (2) against an adult at risk, as defined in s. 55.01 (1e). This paragraph applies irrespective of whether the defendant had actual knowledge of the crime victim's status as an adult at risk. A mistake regarding the victim's status as an adult at risk is not a defense to a prosecution under this paragraph.

SB388,10 Section 10. 968.20 (title) of the statutes is amended to read:

SB388,5,4 968.20 (title) Return of property frozen or seized.

SB388,11 Section 11. 968.20 (1) of the statutes is amended to read:

SB388,5,14 968.20 (1) Any person claiming the right to possession of property frozen or seized under s. 971.109 or seized pursuant to a search warrant or seized without a search warrant, except for an animal taken into custody under s. 173.13 (1) or withheld from its owner under s. 173.21 (1) (a), may apply for its return to the circuit court for the county in which the property was frozen or seized or where the search warrant was returned, except that a court may commence a hearing, on its own initiative, to return property seized under s. 968.26. If an initial appearance under s. 970.01 is scheduled, the application for the return of the property shall be filed within 120 days of the initial appearance.

SB388,12 Section 12. 968.20 (1h) of the statutes is amended to read:

SB388,5,23 968.20 (1h) If a court orders property returned under sub. (1g), the court shall order the person not to sell, transfer, assign, or otherwise encumber the property until the court orders the property either returned under s. 961.55 (3) or 973.075 (5) or, forfeited under s. 961.555 or 973.076, or subject to restitution under s. 973.20. If the person is subsequently convicted of or found to have committed the offense, the court shall order the person to surrender the returned property for proceedings under s. 961.555 or 973.076, whichever is appropriate, or for restitution under s. 973.20.

SB388,13 Section 13. 971.109 of the statutes is created to read:

SB388,6,2 971.109 Freezing assets of a person charged with financial exploitation of an adult at risk. (1) Definitions. In this section:

SB388,6,3 (a) “Adult at risk” has the meaning given in s. 55.01 (1e).

SB388,6,4 (c) “Financial exploitation” has the meaning given in s. 46.90 (1) (ed).

SB388,6,13 (2) Seizure of assets. (a) If a defendant is charged with a crime that is financial exploitation, the crime involves the taking or loss of property valued at more than $2,500, and the crime victim is an adult at risk, a prosecuting attorney may file a petition with the court in which the defendant has been charged to freeze the funds, assets, or property of the defendant in an amount up to 100 percent of the alleged value of funds, assets, or property in the defendant's pending criminal proceeding for purposes of restitution to the crime victim. The hearing on the petition may be held ex parte. The rules of evidence do not apply in a hearing under this paragraph.

SB388,6,19 (b) In the hearing under par. (a), if there is a showing of probable cause that the defendant used, was using, is about to use, or intends to use any funds, assets, or property in a way that constitutes or would constitute financial exploitation, the court shall issue an order to freeze or seize the funds, assets, or property of the defendant in the amount calculated under par. (a). A copy of the order shall be served upon the defendant whose funds, assets, or property has been frozen or seized.

SB388,6,24 (c) The court's order shall prohibit the sale, gifting, transfer, or wasting of the funds, assets, or real or personal property of the adult at risk that are owned by or vested in the defendant without the express permission of the court. The court's order shall be binding upon a financial institution, as defined in s. 943.80 (2), and any 3rd party that is in possession of the funds, assets, or property

SB388,7,5 (3) Release of funds. At any time within 30 days after service of the order under sub. (2) (b), the defendant or any person claiming an interest in the funds, assets, or property may file a petition to release the funds, assets, or property. The court shall hold a hearing on the motion within 10 days from the date the motion is filed. The procedure under s. 968.20 applies to a petition under this subsection.

SB388,7,8 (4) Dismissal or acquittal. If the prosecution of a charge of financial exploitation is dismissed or if a judgment of acquittal is entered, the court shall vacate the order issued under sub. (2) (b).

SB388,7,12 (5) Conviction. If the prosecution of a charge of financial exploitation results in a conviction, the court may order that the funds, assets, or property that were frozen or seized under sub. (2) (b) be released only for the purpose of paying restitution ordered under s. 973.20 (2).

SB388,14 Section 14 . 973.01 (2) (c) 2. a. of the statutes is amended to read:

SB388,7,15 973.01 (2) (c) 2. a. Sections 939.621, 939.623, 939.632, 939.635, 939.645, 946.42 (4), 961.442, 961.46, and 961.49.

SB388,7,16 (End)