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).
973.12 Annotation
Post-plea amendment of repeater allegation in charging document which meaningfully changes the basis on which possible punishment can be assessed is barred. State v. Wilks, 165 W (2d) 102, 477 NW (2d) 632 (Ct. App. 1991).
973.12 Annotation
A guilty plea without a specific admission to repeater allegations is not sufficient to establish the facts necessary to impose the repeater penalty enhancer. Sate v. Zimermann, 185 W (2d) 549, 518 NW (2d) 303 (Ct. App. 1994).
973.12 Annotation
When a defendant does not admit to habitual criminality, the state must prove the alleged repeater status beyond a reasonable doubt. State v. Theriault, 187 W (2d) 125, 522 NW (2d) 254 (Ct. App. 1994).
973.12 Annotation
For a repeater enhancer to apply, the prior conviction must be alleged prior to the entry of a plea, but an error in the information regarding the penalty may be corrected when an amendment will cause no prejudice. State v. Gerard, 189 W (2d) 505, 525 NW (2d) 718 (1995).
973.12 Annotation
Proof of repeater status must be made prior to sentencing. Judicial notice of prior convictions at a postconviction hearing was improper. State v. Koeppen, 195 W (2d) 117, 536 NW (2d) 386 (Ct. App. 1995).
973.12 Annotation
A trial court in exercising sentencing discretion is not prohibited from entertaining general predispositions based on experience, but the judge's predispositions may never be so specific as to ignore the particular circumstances of the individual offender. State v. Ogden, 199 W (2d) 566, 544 NW (2d) 574 (1996).
973.12 Annotation
Gerard is not limited to clerical errors. Where the information correctly alleges a defendant's repeater status, a post-arraignment amendment to the information does not violate this section as long as it does not affect the sufficiency of the notice to the defendant concerning his or her repeater status. State v. Campbell, 201 W (2d) 777, 549 NW (2d) 501 (Ct. App. 1996).
973.13
973.13
Excessive sentence, errors cured. In any case where the court imposes a maximum penalty in excess of that authorized by law, such excess shall be void and the sentence shall be valid only to the extent of the maximum term authorized by statute and shall stand commuted without further proceedings.
973.13 Annotation
This section caps the length of a sentence reduced thereby, but it does not address other aspects or conditions of sentencing. The sentencing court may resentence the defendant if the new sentence is permitted by the law. State v. Holloway, 202 W (2d) 695, 551 NW (2d) 841 (Ct. App. 1996).
973.135
973.135
Courts to report convictions to the department of education. 973.135(2)
(2) If a court determines that a person convicted of a crime specified in
ch. 948, including a crime specified in
s. 948.015, a felony for which the maximum term of imprisonment is at least 5 years, 4th degree sexual assault under
s. 940.225 (3m) or a crime in which the victim was a child, is employed by an educational agency, the clerk of the court in which such conviction occurred shall promptly forward to the department the record of conviction.
973.135(3)
(3) If a conviction under
sub. (2) is reversed, set aside or vacated, the clerk of the court shall promptly forward to the department a certificate stating that the conviction has been reversed, set aside or vacated.
Effective date note
NOTE: This section is shown as affected eff. 1-1-96 by
1995 Wis. Act 27. The treatment by Act 27 was held unconstitutional and declared void by the Supreme Court in Thompson v. Craney, case no.
95-2168-OA. Prior to Act 27 it read:
Effective date text
973.135 Courts to report convictions to the state superintendent of public instruction. (1) In this section:
Effective date text
(a) "Educational agency" has the meaning given in s. 115.31 (1) (b).
Effective date text
(b) "State superintendent" means the state superintendent of public instruction.
Effective date text
(2) If a court determines that a person convicted of a crime specified in ch. 948, including a crime specified in s. 948.015, a felony for which the maximum term of imprisonment is at least 5 years, 4th degree sexual assault under s. 940.225 (3m) or a crime in which the victim was a child, is employed by an educational agency, the clerk of the court in which such conviction occurred shall promptly forward to the state superintendent the record of conviction.
Effective date text
(3) If a conviction under sub. (2) is reversed, set aside or vacated, the clerk of the court shall promptly forward to the state superintendent a certificate stating that the conviction has been reversed, set aside or vacated.
973.135 History
History: 1991 a. 42;
1995 a. 27.
973.14
973.14
Sentence to house of correction. 973.14(1)
(1) In addition to the authority in
ss. 302.18 and
303.18, prisoners sentenced to a county jail may be transferred by the sheriff to a house of correction without court approval.
973.14(2)
(2) Prisoners confined in the house of correction may be transferred by the superintendent of the house of correction to the county jail without court approval.
973.14(3)
(3) A prisoner sentenced to a county jail or the house of correction being held in a county jail awaiting trial on another charge shall be deemed to be serving the county jail or house of correction sentence and shall be given credit on the sentence as provided in
s. 302.43 or
303.19.
973.14 History
History: 1977 c. 126;
1989 a. 31.
973.15
973.15
Sentence, terms, escapes. 973.15(1)
(1) Except as provided in
s. 973.032, all sentences to the Wisconsin state prisons shall be for one year or more. Except as otherwise provided in this section, all sentences commence at noon on the day of sentence, but time which elapses after sentence while the convicted offender is at large on bail shall not be computed as any part of the term of imprisonment.
