973.075(1)(b)2.
2. No vehicle is subject to forfeiture under
ss. 973.075 to
973.077 by reason of any act or omission established by the owner of the vehicle to have been committed or omitted without his or her knowledge or consent; and
973.075(1)(b)3.
3. If forfeiture of a vehicle encumbered by a bona fide perfected security interest occurs, the holder of the security interest shall be paid from the proceeds of the forfeiture if the security interest was perfected prior to the date of the commission of the crime which forms the basis for the forfeiture and he or she neither had knowledge of nor consented to the act or omission.
973.075(1)(c)
(c) All remote sensing equipment, navigational devices, survey equipment and scuba gear and any other equipment or device used in the commission of a crime relating to a submerged cultural resource in violation of
s. 44.47.
973.075(1)(d)
(d) A tank vessel that violates
s. 144.78 (2) [299.62 (2)] that is owned by a person who, within 5 years before the commission of the current violation, was previously convicted of violating
s. 144.78 (2) [299.62 (2)], but if the tank vessel is encumbered by a bona fide perfected security interest that was perfected before the date of the commission of the current violation and the holder of the security interest neither had knowledge of nor consented to the commission of that violation, the holder of the security interest shall be paid from the proceeds of the forfeiture.
973.075 Note
NOTE: The bracketed language indicates the correct cross-reference. Corrective legislation is pending.
973.075(2)
(2) A law enforcement officer may seize property subject to this section upon process issued by any court of record having jurisdiction over the property. Except for vehicles used in the commission of a crime in violation of
s. 944.30,
944.31,
944.32,
944.33 or
944.34, seizure without process may be made under any of the following circumstances:
973.075(2)(a)
(a) The seizure is incident to an arrest or a search under a search warrant or an inspection under any administrative or special inspection warrant.
973.075(2)(b)
(b) The property subject to seizure has been the subject of a prior judgment in favor of the state.
973.075(2)(c)
(c) The officer has probable cause to believe that the property is directly or indirectly dangerous to health or safety.
973.075(2)(d)
(d) The officer has probable cause to believe that the property was derived from or realized through a crime or that the property is a vehicle which was used to transport any property or weapon used or to be used or received in the commission of any felony, which was used in the commission of a crime relating to a submerged cultural resource in violation of
s. 44.47 or which was used to cause more than $1,000 worth of criminal damage to cemetery property in violation of
s. 943.01 (2) (d) or
943.012.
973.075(3)
(3) If there is a seizure under
sub. (2) or
s. 342.30 (4) (a), proceedings under
s. 973.076 shall be instituted. Property seized under this section or
s. 342.30 (4) (a) is not subject to replevin, but is deemed to be in the custody of the sheriff of the county in which the seizure was made subject only to the orders and decrees of the court having jurisdiction over the forfeiture proceedings. When property is seized under this section or
s. 342.30 (4) (a), the person seizing the property may do any of the following:
973.075(3)(b)
(b) Remove the property to a place designated by it.
973.075(3)(c)
(c) Require the sheriff of the county in which the seizure was made to take custody of the property and remove it to an appropriate location for disposition in accordance with law.
973.075(4)
(4) When property is forfeited under
ss. 973.075 to
973.077, the agency seizing the property may sell the property that is not required by law to be destroyed or transferred to another agency. The agency may retain any vehicle for official use or sell the vehicle. The agency seizing the property may deduct 50% of the amount received for administrative expenses of seizure, maintenance of custody, advertising and court costs and the costs of investigation and prosecution reasonably incurred. The remainder shall be deposited in the school fund as the proceeds of the forfeiture. If the property forfeited under
ss. 973.075 to
973.077 is money, all the money shall be deposited in the school fund.
973.075(5)
(5) All forfeitures under
ss. 973.075 to
973.077 shall be made with due provision for the rights of innocent persons under
sub. (1) (b) 1. to
3. and
(d). Any property seized but not forfeited shall be returned to its rightful owner. Any person claiming the right to possession of property seized may apply for its return to the circuit court for the county in which the property was seized. The court shall order such notice as it deems adequate to be given the district attorney and all persons who have or may have an interest in the property and shall hold a hearing to hear all claims to its true ownership. If the right to possession is proved to the court's satisfaction, it shall order the property returned if:
973.075(5)(a)
(a) The property is not needed as evidence or, if needed, satisfactory arrangements can be made for its return for subsequent use as evidence; or
973.075(5)(b)
(b) All proceedings in which it might be required have been completed.
973.075 Annotation
The critical inquiry under (1) (b) is not whether the vehicle was used in crime, but whether property carried by vehicle was used in crime. State v. One 1971 Oldsmobile Cutlass, 159 W (2d) 718, 464 NW (2d) 851 (Ct. App. 1990).
973.076
973.076
Forfeiture proceedings. 973.076(1)
(1)
Type of action; where brought. In an action brought to cause the forfeiture of any property specified in
s. 342.30 (4) (a) or
s. 973.075 (1), the court may render a judgment in rem or against a party personally, or both. The circuit court for the county in which the property was seized shall have jurisdiction over any proceedings regarding the property when the action is commenced in state court. Any property seized may be the subject of a federal forfeiture action.
973.076(2)(a)(a) The district attorney of the county within which the property was seized or in which the defendant is convicted shall commence the forfeiture action within 30 days after the seizure of the property or the date of conviction, whichever is earlier, except that the defendant may request that the forfeiture proceedings be adjourned until after adjudication of any charge concerning a crime which was the basis for the seizure of the property. The request shall be granted. The forfeiture action shall be commenced by filing a summons, complaint and affidavit of the person who seized the property with the clerk of circuit court, provided service of authenticated copies of those papers is made in accordance with
ch. 801 within 60 days after filing upon the person from whom the property was seized and upon any person known to have a bona fide perfected security interest in the property.
973.076(2)(b)
(b) Upon service of an answer, the action shall be set for hearing within 60 days of the service of the answer but may be continued for cause or upon stipulation of the parties.
973.076(2)(c)
(c) In counties having a population of 500,000 or more, the district attorney or the corporation counsel may proceed under
par. (a).
973.076(2)(d)
(d) If no answer is served or no issue of law or fact has been joined and the time for that service or joining issue has expired, or if any defendant fails to appear at trial after answering or joining issue, the court may render a default judgment as provided in
s. 806.02.
973.076(3)
(3) Burden of proof. The state shall have the burden of satisfying or convincing to a reasonable certainty by the greater weight of the credible evidence that the property is subject to forfeiture under
s. 973.075 to
973.077.
973.076(4)
(4) Action against other property of the person. The court may order the forfeiture of any other property of a defendant up to the value of property found by the court to be subject to forfeiture under
s. 973.075 if the property subject to forfeiture meets any of the following conditions:
973.076(4)(b)
(b) Has been transferred or conveyed to, sold to or deposited with a 3rd party.
973.076(4)(d)
(d) Has been substantially diminished in value while not in the actual physical custody of the law enforcement agency.
973.076(4)(e)
(e) Has been commingled with other property that cannot be divided without difficulty.
973.076 History
History: 1981 c. 267; Sup. Ct. Order, 120 W (2d) xiii (1984);
1985 a. 245;
1989 a. 121;
1993 a. 92,
321,
491.
973.076 Note
Judicial Council Note, 1984: Sub. (2) (a) has been amended by allowing 60 days after the action is commenced for service of the summons, complaint and affidavit on the defendants. The prior statute, requiring service within 30 days after seizure of the property, was an exception to the general rule of s. 801.02 (2), stats. [Re Order effective Jan. 1, 1985]
973.077
973.077
Burden of proof; liabilities. 973.077(1)
(1) It is not necessary for the state to negate any exemption or exception regarding any crime in any complaint, information, indictment or other pleading or in any trial, hearing or other proceeding under
s. 973.076. The burden of proof of any exemption or exception is upon the person claiming it.
973.077(2)
(2) In the absence of proof that a person is the duly authorized holder of an appropriate federal registration or order form, the person is presumed not to be the holder of the registration or form. The burden of proof is upon the person to rebut the presumption.
973.077(3)
(3) No liability is imposed by
ss. 973.075 to
973.077 upon any authorized law enforcement officer or employe engaged in the lawful performance of duties.
973.077 History
History: 1981 c. 267.
973.08
973.08
Records accompanying prisoner. 973.08(1)
(1) When any defendant is sentenced to the state prisons, a copy of the judgment of conviction and a copy of any order for restitution under
s. 973.20 shall be delivered by the officer executing the judgment to the warden or superintendent of the institution when the prisoner is delivered.
973.08(2)
(2) The transcript of any portion of the proceedings relating to the prisoner's sentencing shall be filed at the institution within 120 days from the date sentence is imposed.
973.08(3)
(3) The transcript of all other testimony and proceedings upon order of a court shall be delivered to a prisoner within 120 days of his or her request.
973.08(4)
(4) The transcript of all other testimony and proceedings upon order of a court shall be delivered to the department within 120 days of its request.
973.08(5)
(5) The clerk of court shall file or deliver a transcript under
sub. (2),
(3) or
(4).
Effective date note
History: 1971 c. 298 s.
26 (1);
1977 c. 187; Sup. Ct. Order, eff. 1-1-80;
1979 c. 221;
1987 a. 398.
973.08 Annotation
For a court order to be entered under sub. (3), at a minimum a requesting prisoner must show that he or she either never received or was denied access to the requested documents. State v. Wilson, 170 W (2d) 720, 490 NW (2d) 48 (Ct. App. 1992).
973.09(1)(a)(a) Except as provided in
par. (c) or if probation is prohibited for a particular offense by statute, if a person is convicted of a crime, the court, by order, may withhold sentence or impose sentence under
s. 973.15 and stay its execution, and in either case place the person on probation to the department for a stated period, stating in the order the reasons therefor. The court may impose any conditions which appear to be reasonable and appropriate. The period of probation may be made consecutive to a sentence on a different charge, whether imposed at the same time or previously. If the court imposes an increased term of probation, as authorized under
sub. (2) (a) 2. or
(b) 2., it shall place its reasons for doing so on the record.
973.09(1)(b)
(b) If the court places the person on probation, the court shall order the person to pay restitution under
s. 973.20, unless the court finds there is substantial reason not to order restitution as a condition of probation. If the court does not require restitution to be paid to a victim, the court shall state its reason on the record. If the court does require restitution, it shall notify the department of justice of its decision if the victim may be eligible for compensation under
ch. 949.
973.09(1)(c)
(c) When a person is convicted of any crime which is punishable by life imprisonment, the court shall not place the person on probation.
973.09(1)(d)
(d) If a person is convicted of an offense that provides a mandatory or presumptive minimum period of one year or less of imprisonment, a court may place the person on probation under
par. (a) if the court requires, as a condition of probation, that the person be confined under
sub. (4) for at least that mandatory or presumptive minimum period. The person is eligible to earn good time credit calculated under
s. 302.43 regarding the period of confinement. This paragraph does not apply if the conviction is for any violation under
s. 346.63.
973.09(1)(e)
(e) The court may impose a sentence under
s. 973.032, stay its execution and place the person on probation. A court may not provide that a condition of any probation involves participation in the intensive sanctions program.
973.09(1g)
(1g) If the court places the person on probation, the court may require, upon consideration of the factors specified in
s. 973.20 (13) (a) 2. to
5., that the probationer reimburse the county or the state, as applicable, for any costs for legal representation to the county or the state for the defense of the case. In order to receive this reimbursement, the county or the state public defender shall provide a statement of its costs of legal representation to the defendant and court within the time period set by the court.
973.09(1x)
(1x) If the court places a person on probation, the court may require that the probationer make a contribution to a crime prevention organization if the court determines that the probationer has the financial ability to make the contribution.
973.09(2)
(2) The original term of probation shall be:
973.09(2)(a)1.1. Except as provided in
subd. 2., for misdemeanors, not less than 6 months nor more than 2 years.
973.09(2)(a)2.
2. If the probationer is convicted of not less than 2 nor more than 4 misdemeanors at the same time, the maximum original term of probation may be increased by one year. If the probationer is convicted of 5 or more misdemeanors at the same time, the maximum original term of probation may be increased by 2 years.
973.09(2)(b)1.1. Except as provided in
subd. 2., for felonies, not less than one year nor more than either the statutory maximum term of imprisonment for the crime or 3 years, whichever is greater.
973.09(2)(b)2.
2. If the probationer is convicted of 2 or more crimes, including at least one felony, at the same time, the maximum original term of probation may be increased by one year for each felony conviction.
973.09(2m)
(2m) If a court imposes a term of probation in excess of the maximum authorized by statute, the excess is void and the term of probation is valid only to the extent of the maximum term authorized by statute. The term is commuted without further proceedings.
973.09(3)(a)(a) Prior to the expiration of any probation period, the court, for cause and by order, may extend probation for a stated period or modify the terms and conditions thereof.
973.09(3)(b)
(b) The department shall notify the sentencing court, any person to whom unpaid restitution is owed and the district attorney of the status of the ordered payments unpaid at least 90 days before the probation expiration date. If payment as ordered has not been made, the court shall hold a probation review hearing prior to the expiration date, unless the hearing is voluntarily waived by the probationer with the knowledge that waiver may result in an extension of the probation period or in a revocation of probation. If the court does not extend probation, it shall issue a judgment for the unpaid restitution and direct the clerk of circuit court to file and enter the judgment in the judgment and lien docket, without fee, unless it finds that the victim has already recovered a judgment against the probationer for the damages covered by the restitution order. If the court issues a judgment for the unpaid restitution, the court shall send to the person at his or her last-known address written notification that a civil judgment has been issued for the unpaid restitution. The judgment has the same force and effect as judgments entered under
s. 806.10.
973.09(3)(c)
(c) Any of the following may constitute cause for the extension of probation:
973.09(3)(c)1.
1. The probationer has not made a good faith effort to discharge court-ordered payment obligations.
973.09(3)(c)2.
2. The probationer is not presently able to make required payments and the probationer and the person to whom restitution is owed consent to the performance of community service work under
sub. (7m) in satisfaction of restitution ordered for that person, for which an extended period of probation is required.
973.09(3)(c)3.
3. The probationer stipulates to the extension of supervision and the court finds that extension would serve the purposes for which probation was imposed.
973.09(4)
(4) The court may also require as a condition of probation that the probationer be confined during such period of the term of probation as the court prescribes, but not to exceed one year. The court may grant the privilege of leaving the county jail, Huber facility, work camp or tribal jail during the hours or periods of employment or other activity under
s. 303.08 (1) (a) to
(e) while confined under this subsection. The court may specify the necessary and reasonable hours or periods during which the probationer may leave the jail, Huber facility, work camp or tribal jail or the court may delegate that authority to the sheriff. In those counties without a Huber facility under
s. 303.09, a work camp under
s. 303.10 or an agreement under
s. 302.445, the probationer shall be confined in the county jail. In those counties with a Huber facility under
s. 303.09, the sheriff shall determine whether confinement under this subsection is to be in that facility or in the county jail. In those counties with a work camp under
s. 303.10, the sheriff shall determine whether confinement is to be in the work camp or the county jail. The sheriff may transfer persons confined under this subsection between a Huber facility or a work camp and the county jail. In those counties with an agreement under
s. 302.445, the sheriff shall determine whether confinement under this subsection is to be in the tribal jail or the county jail, unless otherwise provided under the agreement. In those counties, the sheriff may transfer persons confined under this subsection between a tribal jail and a county jail, unless otherwise provided under the agreement. While subject to this subsection, the probationer is subject to
s. 303.08 (1),
(3) to
(6),
(8) to
(12) and
(14) or to
s. 303.10, whichever is applicable, and to all the rules of the county jail, Huber facility, work camp or tribal jail and the discipline of the sheriff.
973.09(5)
(5) When the probationer has satisfied the conditions of his or her probation, the probationer shall be discharged and the department shall issue the probationer a certificate of final discharge, a copy of which shall be filed with the clerk.
973.09(7m)(a)(a) Except as provided in
s. 943.017 (3), the court may require as a condition of probation that the probationer perform community service work for a public agency or a nonprofit charitable organization. The number of hours of work required may not exceed what would be reasonable considering the seriousness of the offense and any other offense which is read into the record at the time of conviction. An order may only apply if agreed to by the probationer and the organization or agency. The court shall ensure that the probationer is provided a written statement of the terms of the community service order and that the community service order is monitored. If the court requires the conditions provided in this subsection and
sub. (4), the probationer reduces the period of confinement under
sub. (4) at a rate of one day for each 3 days of work performed. A day of work equals 8 hours of work performed.
973.09(7m)(b)
(b) Any organization or agency acting in good faith to which a probationer is assigned pursuant to an order under this subsection has immunity from any civil liability in excess of $25,000 for acts or omissions by or impacting on the probationer.
973.09 History
History: 1971 c. 298;
1979 c. 119,
189,
238,
355,
356;
1981 c. 50,
88,
326,
352,
391;
1983 a. 27,
104,
254,
346,
519,
538;
1985 a. 150;
1987 a. 347,
398,
403,
412;
1989 a. 31,
121,
188;
1991 a. 39;
1993 a. 48,
486;
1995 a. 24,
224,
281.
973.09 Note
Judicial Council Note, 1981: A cross-reference to s. 973.15 has been inserted to clarify that the provisions of that statute govern the imposition of sentence even though the court stays execution of the sentence under this statute. [Bill 341-A]
973.09 Note
Judicial Council Note, 1987: Sub. (1g) is amended to require the court to consider the defendant's ability to pay when ordering reimbursement of the costs of legal representation.
973.09 Annotation
Sub. (3) (c) specifies grounds for extending probation. The availability of a civil judgment for unpaid restitution enforceable by the victim under s. 973.20 (1), stats., substantially reduces the necessity of extending probation solely for the purpose of enforcing court-ordered payments, a practice of questionable cost-effectiveness. See legislative audit bureau report No. 85-10, April 15, 1985, at 17-18. Probation may, however, be extended upon stipulation of the defendant, to enforce community service in satisfaction of restitution, or when the probationer has not made a good faith effort to make restitution or other payments. Huggett v. State,
83 Wis. 2d 790, 803 (1978). [87 Act 398]
973.09 Annotation
Subsequent to conviction for escape of a defendant previously convicted of burglary and placed on probation with condition of incarceration pursuant to (4), the trial court did not abuse its discretion in granting a new trial in the interest of justice, since defendant's temporary absconding occurred during a release period, and he therefore was not in custody within the meaning of s. 946.42 (5) (b), 1983 stats. [now sub. (1) (a)]. State v. Schaller, 70 W (2d) 107, 233 NW (2d) 416.
973.09 Annotation
Terminology of work-release under (4) and Huber law privileges under 56.08 cannot be used interchangeably without danger of inappropriate sentence. Yingling v. State, 73 W (2d) 438, 243 NW (2d) 420.
973.09 Annotation
Claims of credit for pretrial or preconviction incarceration may be made only as to sentences imposed, and not to periods of confinement during nonworking hours imposed as a condition of probation under (4). Full confinement for one year as a condition of probation is not authorized under (4). State v. Gloudemans, 73 W (2d) 514, 243 NW (2d) 220.
973.09 Annotation
Probation condition that probationer not contact her codefendant fiance was permissible infringement of her constitutional rights because the condition was reasonably related to rehabilitation and was not overly broad. Edwards v. State, 74 W (2d) 79, 246 NW (2d) 109.
973.09 Annotation
Where defendant is sentenced for 3 charges and placed on consecutive probation for the 4th charge, trial court may not impose probation condition that defendant make restitution for all charges. Garski v. State, 75 W (2d) 62, 248 NW (2d) 425.
973.09 Annotation
Failure to make restitution is not cause for extending probation under (3) if probationer demonstrates good faith effort to pay but lacks capacity to pay during probation. Huggett v. State, 83 W (2d) 790, 266 NW (2d) 403 (1978).
