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.
973.10 Annotation
While the U.S. Supreme Court in Scarpelli has explicated that the rights of a defendant to counsel could arise at both the preliminary and final hearing, discretion is specifically lodged in the state authority charged with responsibility for administering. State ex rel. Hawkins v. Gagnon, 64 W (2d) 394, 219 NW (2d) 252.
973.10 Annotation
A defendant convicted of taking indecent liberties with a minor and sexual perversion, placed on probation, allowed to settle in Tennessee, and charged with an attempted sodomy violation of probation there was denied due process where the revocation hearing was held in Wisconsin and the H&SS department refused to allow deposition of his witnesses in Tennessee, because the witnesses' testimony as to defendant's actions on the date of the alleged assault constituted testimony of a direct and unequivocally exculpatory nature rather than merely cumulative, character, or background testimony which might have been adequately presented by deposition or affidavit. State ex rel. Harris v. Schmidt, 69 W (2d) 668, 230 NW (2d) 890.
973.10 Annotation
Department of H&SS probation files and records are public records and admissible as such at probation revocation hearing. State ex rel. Prellwitz v. Schmidt, 73 W (2d) 35, 242 NW (2d) 227.
973.10 Annotation
Time spent in jail awaiting revocation is deducted from maximum sentence despite option available to defendant to spend the time in prison. State ex rel. Solie v. Schmidt, 73 W (2d) 76, 242 NW (2d) 244.
973.10 Annotation
When the department overrules its hearing examiner and revokes probation, it must provide a statement of the evidence relied upon and the reasons for revoking probation. Ramaker v. State, 73 W (2d) 563, 243 NW (2d) 534.
973.10 Annotation
See note to Art. I, sec. 11, citing State v. Tarrell, 74 W (2d) 647, 247 NW (2d) 696.
973.10 Annotation
Trial court had no authority to extend probation of defendant brought before court under (2). State v. Balgie, 76 W (2d) 206, 251 NW (2d) 36.
973.10 Annotation
Court exceeded jurisdiction by releasing defendant on bail pending revocation proceedings. State ex rel. DH&SS v. Second Jud. Cir. Ct. 84 W (2d) 707, 267 NW (2d) 373 (1978).
973.10 Annotation
Equal protection does not require symmetry in probation and parole systems. State v. Aderhold, 91 W (2d) 306, 284 NW (2d) 108 (Ct. App. 1979).
973.10 Annotation
See note to Art. I, sec. 8, citing State ex rel. Alvarez v. Lotter, 91 W (2d) 329, 283 NW (2d) 408 (Ct. App. 1979).
973.10 Annotation
See note to Art. I, sec. 12, citing State v. White, 97 W (2d) 517, 294 NW (2d) 36 (Ct. App. 1979).
973.10 Annotation
See note to Art. I, sec. 11, citing State v. Griffin, 131 W (2d) 41, 388 NW (2d) 535 (1986).
973.10 Annotation
Probation can be revoked for violation of criminal statute even absent a written probation agreement. State ex rel. Rodriguez v. DH&SS, 133 W (2d) 47, 393 NW (2d) 105 (Ct. App. 1986).
973.10 Annotation
See note to 304.06, citing 65 Atty. Gen. 20.
973.10 Annotation
State may require probation officers, among other "peace officers", to be U.S. citizens. Cabel v. Chavez-Solido, 454 US 432 (1982).
973.10 Annotation
See note to Art. I, sec. 8, citing Hahn v. Burke, 430 F (2d) 100.
973.10 Annotation
A probation revocation hearing may be administrative. Retained or appointed counsel must be allowed to participate. Gunsolus v. Gagnon, 454 F (2d) 416.
973.10 Annotation
Probation revocation; right to a hearing and to counsel. 1971 WLR 648.
973.10 Annotation
Probation and parole revocation in Wisconsin. 1977 WLR 503.
973.11
973.11
Placements with volunteers in probation program. 973.11(1)(1)
Placements. 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. 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:
973.11(1)(a)
(a) A directive to a volunteer to provide one or more of the following functions for the defendant:
973.11(2)
(2) Approval of programs. In each judicial administrative district under
s. 757.60, the chief judge of the district may approve volunteers in probation programs established in the district for placements under this section.
973.11(3)
(3) Status. A defendant who is placed with a volunteers in probation program under
sub. (1) is subject to the conditions set by the court. The defendant is not on probation under
ss. 973.09 and
973.10 and the department is not responsible for supervising him or her. A court may place a defendant under
sub. (1) prior to conviction only if a deferred prosecution agreement is reached under
s. 971.40. In that case, the person is subject to the conditions set by the court under this section and the conditions provided in the agreement.
973.11(4)
(4) Term. The court shall set the length of the order, which may not exceed 2 years unless extended pursuant to a hearing under
sub. (5). When the defendant has satisfied the conditions of the order, the court shall discharge the defendant and dismiss the charges against the defendant if a judgment of conviction was not previously entered.
973.11(5)(a)(a) If the defendant is alleged to have violated the conditions of an order under
sub. (1), the court may hold a hearing regarding the allegations. The court shall notify the defendant at least 7 days prior to holding any such hearing. At the hearing, the defendant has the right to each of the following:
973.11(5)(b)
(b) The court may extend the period of supervision for up to 45 days to accommodate a hearing under this subsection.
973.11(5)(c)
(c) Failure of the defendant to appear at a hearing under this subsection tolls the running of the period of supervision.
973.11(5)(d)
(d) If the court finds that the violation occurred, it may impose a sentence, revise the conditions of the order or allow the order to continue.
973.11(6)
(6) Other modifications to order. At any time prior to the expiration of the order the court may shorten the length of the order or modify the conditions of the order. The court shall hold a hearing regarding a determination under this subsection if the defendant or district attorney requests a hearing.
973.11 History
History: 1991 a. 253;
1993 a. 213.
973.12
973.12
Sentence of a repeater or persistent repeater. 973.12(1)(1) Whenever a person charged with a crime will be a repeater or a persistent repeater under
s. 939.62 if convicted, any applicable prior convictions may be alleged in the complaint, indictment or information or amendments so alleging at any time before or at arraignment, and before acceptance of any plea. The court may, upon motion of the district attorney, grant a reasonable time to investigate possible prior convictions before accepting a plea. If the prior convictions are admitted by the defendant or proved by the state, he or she shall be subject to sentence under
s. 939.62 unless he or she establishes that he or she was pardoned on grounds of innocence for any crime necessary to constitute him or her a repeater or a persistent repeater. An official report of the F.B.I. or any other governmental agency of the United States or of this or any other state shall be prima facie evidence of any conviction or sentence therein reported. Any sentence so reported shall be deemed prima facie to have been fully served in actual confinement or to have been served for such period of time as is shown or is consistent with the report. The court shall take judicial notice of the statutes of the United States and foreign states in determining whether the prior conviction was for a felony or a misdemeanor.
973.12(2)
(2) In every case of sentence under
s. 939.62, the sentence shall be imposed for the present conviction, but if the court indicates in passing sentence how much thereof is imposed because the defendant is a repeater, it shall not constitute reversible error, but the combined terms shall be construed as a single sentence for the present conviction.
973.12 History
History: 1993 a. 289.
973.12 Annotation
This section does not authorize 2 sentences for one crime. State v. Upchurch, 101 W (2d) 329, 305 NW (2d) 57 (1981).
973.12 Annotation
See note to 939.62, citing State v. Harris, 119 W (2d) 612, 350 NW (2d) 633 (1984).
973.12 Annotation
Report under (1) must contain critically relevant facts in order to support penalty enhancement. State v. Farr, 119 W (2d) 651, 350 NW (2d) 640 (1984).
973.12 Annotation
No contest plea constitutes admission of all facts alleged in action, including those referring to prior convictions. State v. Rachwal, 159 W (2d) 494, 465 NW (2d) 490 (1991).
973.12 Annotation
See note to 971.09, citing State v. Rachwal, 159 W (2d) 494, 465 NW (2d) 490 (1991).
973.12 Annotation
No amendment to charging document to add repeater allegation may be made after arraignment and acceptance of any plea. State v. Martin, 162 W (2d) 883, 470 NW (2d) 900 (1991).
