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).
973.09 Annotation
Order to pay restitution, in amount to be determined later, authorized collection of funds from defendant. Thieme v. State, 96 W (2d) 98, 291 NW (2d) 474 (1980).
973.09 Annotation
Remand for resentencing was proper procedure where trial court improperly imposed period of probation to run concurrently with period of parole. State v. Givens, 102 W (2d) 476, 307 NW (2d) 178 (1981).
973.09 Annotation
Issuance of warrant during probationary term tolls running of term. State ex rel. Cox v. H&SS Dept. 105 W (2d) 378, 314 NW (2d) 148 (Ct. App. 1981).
973.09 Annotation
Restitution order reversed for failure to consider probationer's resources and future ability to pay. State v. Pope, 107 W (2d) 726, 321 NW (2d) 359 (Ct. App. 1982).
973.09 Annotation
See note to Art. I, sec. 8, citing State ex rel. Thompson v. Riveland, 109 W (2d) 580, 326 NW (2d) 768 (1982).
973.09 Annotation
See note to Art. I, sec. 8, citing State v. Dean, 111 W (2d) 361, 330 NW (2d) 630 (Ct. App. 1983).
973.09 Annotation
Court lacked authority to impose consecutive probationary terms. State v. Gereaux, 114 W (2d) 110, 338 NW (2d) 118 (Ct. App. 1983).
973.09 Annotation
Court erred in imposing consecutive sentences of probation. Increased punishment on resentencing did not violate double jeopardy clause. State v. Pierce, 117 W (2d) 83, 342 NW (2d) 776 (Ct. App. 1983).
973.09 Annotation
See note to Art. I, sec. 8, citing State v. Sepulveda, 120 W (2d) 231, 353 NW (2d) 790 (1984).
973.09 Annotation
Court may not assess costs of special prosecutor's fees as condition of probation. State v. Amato, 126 W (2d) 212, 376 NW (2d) 75 (Ct. App. 1985).
973.09 Annotation
Under facts of case, continuation of probation solely to collect restitution debt was abuse of discretion. State v. Jackson, 128 W (2d) 356, 382 NW (2d) 429 (1986).
973.09 Annotation
Court may order defendant to reimburse police for funds used for drug purchase which resulted in the conviction. State v. Connelly, 143 W (2d) 500, 421 NW (2d) 859 (Ct. App. 1988).
973.09 Annotation
Lack of counsel at probation revocation hearing didn't deny probationer's constitutional rights. State v. Hardwick, 144 W (2d) 54, 422 NW (2d) 922 (Ct. App. 1988.)
973.09 Annotation
Sub. (1) (b) does not restrict court's authority to condition probation on any reasonable and appropriate requirement under (1) (a). State v. Heyn, 155 W (2d) 621, 456 NW (2d) 157 (1990).
973.09 Annotation
Sub. (3) (a) authorizes court to modify all conditions of probation established for a specific probationer, including those imposed by corrections department. State ex rel. Taylor v. Linse, 161 W (2d) 719, 469 NW (2d) 201 (Ct. App. 1991).
973.09 Annotation
Plea agreement to amend judgment of conviction upon successful completion of probation is not authorized by statute. State v. Hayes, 167 W (2d) 423, 481 NW (2d) 699 (Ct. App. 1992).
973.09 Annotation
Due process rights of a probationer at a hearing to modify probation enumerated. State v. Hayes, 173 W (2d) 439, 496 NW (2d) 645 (Ct. App. 1992).
973.09 Annotation
Requiring a convicted defendant to deposit money for possible future counselling costs of victims was impermissible. State v. Handley, 173 W (2d) 838, 496 NW (2d) 725 (Ct. App. 1993).
973.09 Annotation
Requiring defendant convicted of sexual assault to pay victim's costs of tuition to attend another school to avoid harassment which arose after the assault was a reasonable condition of probation. State v. Brown, 174 W (2d) 550, 497 NW (2d) 463 (Ct. App. 1993).
973.09 Annotation
A condition of probation not related to the underlying conviction but related to prior convictions was reasonable and appropriate. State v. Miller, 175 W (2d) 204, NW (2d) (Ct. App. 1993).
973.09 Annotation
The notification provisions of sub. (3) apply only in the case of probation extension proceedings, not revocations. Bartus v. DHSS, 176 W (2d) 1063, 501 NW (2d) 419 (1993).
973.09 Annotation
Sub. (2) (a) applies to probation for misdemeanors and sub. (2) (b) to felonies; sub. (2) (b) 2. does not authorize increasing probation for a misdemeanor if the defendant is convicted of a felony at the same time. State v. Reagles, 177 W (2d) 168, 501 NW (2d) 861 (Ct. App. 1993).
973.09 Annotation
A forced confession as a condition of probation does not violate the right against self-incrimination; the constitution protects against the use of confessions in subsequent criminal prosecutions but does not protect against the use of such statements in a revocation proceeding. State v. Carrizales, 191 W (2d) 85, 528 NW (2d) 29 (Ct. App. 1995).
973.09 Annotation
While periods of time served due to an indigent's inability to post bail prior to trial must be credited as time served on a prison sentence imposed, a court need not credit time served by an indigent offender against probationary confinement. State v. Avila, 192 W (2d) 870, 532 NW (2d) 423 (Ct. App. 1995).
973.09 Annotation
A jail term probationer eligible for good time credit under sub. (1) (d) may not be denied the possibility of earning good time as a sentence condition. State v. McClinton, 195 W (2d) 344, 536 NW (2d) 413 (Ct. App. 1995).
973.09 Annotation
Sub. (2) applies to all sentences pronounced at the same time whether grouped together because they are related or because of convenience. U.S. v. Stalbaum, 63 F (3d) 537 (1995).
973.10
973.10
Control and supervision of probationers. 973.10(1)(1) Imposition of probation shall have the effect of placing the defendant in the custody of the department and shall subject the defendant to the control of the department under conditions set by the court and rules and regulations established by the department for the supervision of probationers and parolees.
973.10(1m)(a)(a) The department may order that a probationer perform community service work for a public agency or a nonprofit charitable organization. An order may apply only if agreed to by the probationer and the organization or agency. The department shall ensure that the probationer is provided a written statement of the terms of the community service order and shall monitor the probationer's compliance with the community service order. Compliance with this subsection does not entitle a probationer to credit under
s. 973.155.
973.10(1m)(b)
(b) Any organization or agency acting in good faith to which a probationer is assigned under 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. The department has immunity from any civil liability for acts or omissions by or impacting on the probationer regarding the assignment under this subsection.
973.10(2)
(2) If a probationer violates the conditions of probation, the department of corrections may initiate a proceeding before the division of hearings and appeals in the department of administration. Unless waived by the probationer, a hearing examiner for the division shall conduct an administrative hearing and enter an order either revoking or not revoking probation. Upon request of either party, the administrator of the division shall review the order. If the probationer waives the final administrative hearing, the secretary of corrections shall enter an order either revoking or not revoking probation. If probation is revoked, the department shall:
973.10(2)(a)
(a) If the probationer has not already been sentenced, order the probationer brought before the court for sentence which shall then be imposed without further stay under
s. 973.15; or
973.10(2)(b)
(b) If the probationer has already been sentenced, order the probationer to prison, and the term of the sentence shall begin on the date the probationer enters the prison.
973.10(2g)
(2g) Upon demand prior to a revocation hearing under
sub. (2), the district attorney shall disclose to a defendant the existence of any videotaped oral statement of a child under
s. 908.08 which is within the possession, custody or control of the state and shall make reasonable arrangements for the defendant and defense counsel to view the videotaped statement. If, subsequent to compliance with this subsection, the state obtains possession, custody or control of such a videotaped statement, the district attorney shall promptly notify the defendant of that fact and make reasonable arrangements for the defendant and defense counsel to view the videotaped statement.
973.10(2m)
(2m) In any administrative hearing under
sub. (2), the hearing examiner may order the taking and allow the use of a videotaped deposition under
s. 967.04 (7) to
(10).
973.10(3)
(3) A copy of the order of the department of corrections in the case of a waiver or the division of hearings and appeals in the department of administration in the case of a final administrative hearing is sufficient authority for the officer executing it to take the probationer to court or to prison. The officer shall execute the order as a warrant for arrest but any officer may, without order or warrant, take the probationer into custody whenever necessary in order to prevent escape or enforce discipline or for violation of probation.
973.10(4)
(4) The division of hearings and appeals in the department of administration shall make either an electronic or stenographic record of all testimony at each probation revocation hearing. The division shall prepare a written transcript of the testimony only at the request of a judge who has granted a petition for judicial review of the revocation decision. Each hearing notice shall include notice of the provisions of this subsection and a statement that any person who wants a written transcript may record the hearing at his or her own expense.
973.10 Note
Judicial Council Note, 1981: Sub. (2) (a) has been amended to clarify that, upon revocation of probation of an offender from whom sentence was originally withheld, the court must impose sentence in accordance with s. 973.15. That section now permits the court to order that any sentence be concurrent with or consecutive to any sentence imposed at the same time or previously. [Bill 341-A]
973.10 Annotation
Before probation can be revoked the department must hold a hearing and make a record so that on judicial review it can be determined whether the department acted arbitrarily or capriciously. The hearing need not be formal. State ex rel. Johnson v. Cady, 50 W (2d) 540, 185 NW (2d) 306.
973.10 Annotation
Revocation of probation is an integral part of the sentencing process; hence a defendant is entitled to assistance of counsel at parole or probation revocation hearings without regard to whether the hearing occurs in a sentence withheld or a postsentence situation. Oestrich v. State, 55 W (2d) 222, 198 NW (2d) 664.
973.10 Annotation
Since probation revocation hearings are independent from the original conviction and sentencing, a judge disqualified in the original case may preside at the hearing in the absence of challenge. State v. Fuller, 57 W (2d) 408, 204 NW (2d) 452.
973.10 Annotation
Witnesses at a probation revocation hearing need not be sworn. State v. Gerard, 57 W (2d) 611, 205 NW (2d) 374.
973.10 Annotation
ABA Standards Relating to Probation adopted and applied. State ex rel. Plotkin v. H&SS Dept. 63 W (2d) 535, 217 NW (2d) 641.
973.10 Annotation
See note to 304.06, citing State ex rel. Hanson v. H&SS Dept. 64 W (2d) 367, 219 NW (2d) 267.
