972.13 Annotation
The trial court can on motion or on its own motion modify a criminal sentence if the motion is made within 90 days after sentencing. Prior cases overruled. The first judgment should not be vacated; it should be amended. Hayes v. State, 46 W (2d) 93, 175 NW (2d) 625.
972.13 Annotation
A trial court must inform the defendant of his right to appeal. If it does not, the defendant may pursue a late appeal. Peterson v. State, 54 W (2d) 370, 195 NW (2d) 837.
972.13 Annotation
The court did not abuse its discretion in revoking probation, reinstating the prior sentences and sentencing on 5 subsequent offenses for a total cumulative sentence of 16 years, where the defendant had a long record and interposed a frivolous defense in the later trials. Lange v. State, 54 W (2d) 569, 196 NW (2d) 680.
972.13 Annotation
Hayes v. State was not intended to impose a jurisdictional limit on the power of a court to review a sentence. State ex rel. Warren v. County Court, 54 W (2d) 613, 197 NW (2d) 1.
972.13 Annotation
The requirement that a court inform the defendant of his right to appeal applies only to convictions after April 1, 1972. In re Applications of Maroney and Kunz, 54 W (2d) 638, 196 NW (2d) 712.
972.13 Annotation
Following sentencing the trial court must not only advise defendant of his right to appeal but also advise defendant and his attorney of the obligation of trial counsel to continue representation pending a decision as to appeal and until other counsel is appointed. Whitmore v. State, 56 W (2d) 706, 203 NW (2d) 56.
972.13 Annotation
Factors relevant to the appropriateness of the sentence discussed. Tucker v. State, 56 W (2d) 728, 202 NW (2d) 897.
972.13 Annotation
A trial judge has no power to validly sentence with a mental reservation that he might modify the sentence within 90 days if defendant has profited from imprisonment, and he cannot change an imposed sentence unless new factors are present. State v. Foellmi, 57 W (2d) 572, 205 NW (2d) 144.
972.13 Annotation
Claim the trial court lacked jurisdiction to impose sentence because it failed to enter judgment of conviction on the jury's verdict is not reviewable because it involves no jurisdictional question, and the construction of the statute was not raised by defendant in his motion for postconviction relief nor did defendant go back to the trial court for relief as a basis for an appeal. Sass v. State, 63 W (2d) 92, 216 NW (2d) 22.
972.13 Annotation
Where Whitmore (56 W (2d) 706) instructions are given, defendant must show that failure to move for new trial constituted an unintentional waiver of rights. Thiesen v. State, 86 W (2d) 562, 273 NW (2d) 314 (1979).
972.13 Annotation
See note to 971.31, citing State v. Smith, 113 W (2d) 497, 335 NW (2d) 376 (1983).
972.13 Annotation
Judgment entered by state court during pendency of removal proceedings in federal court was void. State v. Cegielski, 124 W (2d) 13, 368 NW (2d) 628 (1985).
972.13 Annotation
Court's refusal to poll jurors individually was reversible error. State v. Wojtalewicz, 127 W (2d) 344, 379 NW (2d) 338 (Ct. App. 1985).
972.13 Annotation
Written judgment of conviction is not prerequisite to sentencing. State v. Pham, 137 W (2d) 31, 403 NW (2d) 35 (1987).
972.13 Annotation
Where judge allowed voir dire after polling jury on guilty verdict and where one juror's responses seriously undermined previous vote of guilty, jury's verdict was no longer unanimous, requiring new trial. State v. Cartagena, 140 W (2d) 59, 409 NW (2d) 386 (Ct. App. 1987).
972.13 Annotation
There is no error in noting dismissed charges on a judgment of conviction. State v. Theriault, 187 W (2d) 125, 522 NW (2d) 254 (Ct. App. 1994).
972.13 Annotation
As to traffic cases, see note to 345.34, citing 63 Atty. Gen. 328.
972.14
972.14
Statements before sentencing. 972.14(2)
(2) Before pronouncing sentence, the court shall ask the defendant why sentence should not be pronounced upon him or her and allow the district attorney, defense counsel and defendant an opportunity to make a statement with respect to any matter relevant to the sentence. In addition, if the defendant is under 21 years of age and if the court has not ordered a presentence investigation under
s. 972.15, the court shall ask the defendant if he or she has been adjudged delinquent under
ch. 48 or has had a similar adjudication in any other state in the 3 years immediately preceding the date the criminal complaint relating to the present offense was issued.
972.14(3)(a)(a) Before pronouncing sentence, the court shall also allow a victim or family member of a homicide victim to make a statement or submit a written statement to be read in court. 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 sentence.
972.14(3)(b)
(b) After a conviction, if the district attorney knows of a victim or family member of a homicide or felony murder victim, the district attorney shall attempt to contact that person to inform him or her of the right to make or provide a statement under
par. (a). Any failure to comply with this paragraph is not a ground for an appeal of a judgment of conviction or for any court to reverse or modify a judgment of conviction.
972.14 Annotation
Court's presentencing preparation and formulation of tentative sentence does not deny defendant's right to allocution at sentencing. State v. Varnell, 153 W (2d) 334, 450 NW (2d) 524 (Ct. App. 1989).
972.14 Annotation
The right under sub. (2) of a defendant to make a statement prior to sentencing does not apply to an extension of a placement under the intensive sanctions program. State v. Turner, 200 W (2d) 168, 546 NW (2d) 880 (Ct. App. 1996).
972.15
972.15
Presentence investigation. 972.15(1)
(1) After a conviction the court may order a presentence investigation, except that the court may order an employe of the department to conduct a presentence investigation only after a conviction for a felony.
972.15(2)
(2) When a presentence investigation report has been received the judge shall disclose the contents of the report to the defendant's attorney and to the district attorney prior to sentencing. When the defendant is not represented by an attorney, the contents shall be disclosed to the defendant.
972.15(2m)
(2m) The person preparing the presentence investigation report shall attempt to contact the victim to determine the economic, physical and psychological effect of the crime on the victim. The person preparing the report may ask any appropriate person for information. This subsection does not preclude the person who prepares the report from including any information for the court concerning the impact of a crime on the victim.
972.15(2s)
(2s) If the defendant is under 21 years of age, the person preparing the presentence investigation report shall attempt to determine whether the defendant has been adjudged delinquent under
ch. 48 or has had a similar adjudication in any other state in the 3 years immediately preceding the date the criminal complaint relating to the present offense was issued and, if so, shall include that information in the report.
972.15(3)
(3) The judge may conceal the identity of any person who provided information in the presentence investigation report.
972.15(4)
(4) After sentencing, unless otherwise authorized under
sub. (5) or ordered by the court, the presentence investigation report shall be confidential and shall not be made available to any person except upon specific authorization of the court.
972.15(5)
(5) The department may use the presentence investigation report for correctional programming, parole consideration or care and treatment of any person sentenced to imprisonment or the intensive sanctions program, placed on probation, released on parole or committed to the department under
ch. 51 or
971 or any other person in the custody of the department or for research purposes. The department may make the report available to other agencies or persons to use for purposes related to correctional programming, parole consideration, care and treatment, or research. Any use of the report under this subsection is subject to the following conditions:
972.15(5)(a)
(a) If a report is used or made available to use for research purposes and the research involves personal contact with subjects, the department, agency or person conducting the research may use a subject only with the written consent of the subject or the subject's authorized representative.
972.15(5)(b)
(b) The department or the agency or person to whom the report is made available shall not disclose the name or any other identifying characteristics of the subject, except for disclosure to appropriate staff members or employes of the department, agency or person as necessary for purposes related to correctional programming, parole consideration, care and treatment, or research.
972.15 Annotation
Defendant was not denied due process because the trial judge refused to order a psychiatric examination and have a psychiatric evaluation included in the presentence report. Hanson v. State, 48 W (2d) 203, 179 NW (2d) 909.
972.15 Annotation
It is not error for the court to fail to order a presentence investigation, especially where the record contains much information as to the defendant's background and criminal record. State v. Schilz, 50 W (2d) 395, 184 NW (2d) 134.
972.15 Annotation
Section 48.78 does not prevent a judge from examining records of the department. Restrictive rules of evidence do not apply to sentencing procedures. Hammill v. State, 52 W (2d) 118, 187 NW (2d) 792.
972.15 Annotation
Refusal to accept a recommendation of probation does not amount to an abuse of discretion where the evidence justified a severe sentence. State v. Burgher, 53 W (2d) 452, 192 NW (2d) 869.
972.15 Annotation
If a presentence report is used by the trial court it must be part of the record; its absence is not error where defendant and counsel saw it and had a chance to correct it and where counsel approved the record without moving for its inclusion. Chambers v. State, 54 W (2d) 460, 195 NW (2d) 477.
972.15 Annotation
Failure to order and consider a presentence report is not an abuse of discretion. Byas v. State, 55 W (2d) 125, 197 NW (2d) 757.
972.15 Annotation
It is error for the sentencing court to consider pre-Gault juvenile adjudications where juveniles were denied counsel, even to the extent of showing a pattern of conduct. Stockwell v. State, 59 W (2d) 21, 207 NW (2d) 883.
972.15 Annotation
The presentence report, consisting of information concerning defendant's personality, social circumstances and general pattern of behavior—and a section entitled "Agent's Impressions"—contained neither biased nor incompetent material where such reports are not limited to evidence which is admissible in court, and defendant's report, although recommending imposition of a maximum term, contained material both favorable and unfavorable as to defendant's general pattern of behavior. State v. Jackson, 69 W (2d) 266, 230 NW (2d) 832.
972.15 Annotation
Consideration by the trial court of a presentence report prior to defendant's plea of guilty and hence in violation of (1), constituted at most harmless error, since the evil the statute is designed to prevent—receipt by the judge of prejudicial information while he is still considering the defendant's guilt or innocence or presiding over a jury trial—cannot arise in the context of a guilty plea, especially where, as here, the trial court had already assured itself of the voluntariness of the plea and the factual basis for the crime. Rosado v. State, 70 W (2d) 280, 234 NW (2d) 69.
972.15 Annotation
Sentencing judge does not deny due process by considering pending criminal charges in determining sentence. Scope of judicial inquiry prior to sentencing discussed. Handel v. State, 74 W (2d) 699, 247 NW (2d) 711.
972.15 Annotation
Information gathered in course of presentence investigation may not be revealed at trial following withdrawal of guilty plea. State v. Crowell, 149 W (2d) 859, 440 NW (2d) 348 (1989).
972.15 Annotation
Defendants appearing with or without counsel have due process right to read presentence investigation report prior to sentencing. State v. Skaff, 152 W (2d) 48, 447 NW (2d) 84 (Ct. App. 1989).
972.15 Annotation
See note to 974.06, citing State v. Flores, 158 W (2d) 636, 462 NW (2d) 899 (Ct. App. 1990).
972.15 Annotation
A public defender appointed as post conviction counsel is entitled to the presentence investigation report under s. 967.06; access may not be restricted under sub. (4). Oliver v. Goulee, 179 W (2d) 376, 507 NW (2d) 145 (Ct. App. 1993).
972.15 Annotation
Although sub. (2s) requires a presentence report to include juvenile adjudications that are less than 3 years old it does not prohibit the inclusion and consideration of adjudications which are more than 3 years old. State v. Crowe, 189 W (2d) 72, 525 NW (2d) 291 (Ct. App. 1994).
972.15 Annotation
Sub. (5) does not provide a defendant a means to obtain his or her presentence report. This access is provided by subs. (2) and (4). State ex rel. Hill v. Zimmerman, 196 W (2d) 419, 538 NW (2d) 608 (Ct. App. 1995).
972.15 Annotation
Insuring the accuracy of the presentence investigation report in the Wisconsin correctional system. 1986 WLR 613.
