800.08(2)(b)
(b) The oath may be administered by the municipal judge or his or her designee substantially in the following form: Do you solemnly swear that the testimony you shall give in this matter shall be the truth, the whole truth and nothing but the truth, so help you God.
800.08(2)(c)
(c) Every person who declares that he or she has conscientious scruples against taking the oath, or swearing in the usual form, shall make a solemn declaration or affirmation, which may be in the following form: Do you solemnly, sincerely and truly declare and affirm that the testimony you shall give in this matter shall be the truth, the whole truth and nothing but the truth; and this you do under the pains and penalties of perjury.
800.08(2)(d)
(d) The assent to the oath or affirmation by the person making it may be manifested by the uplifted hand.
800.08(3)
(3) The standard of proof for conviction of any person charged with violation of any municipal ordinance, bylaw or resolution specified in
s. 800.02 (1) shall be evidence that is clear, satisfactory and convincing.
800.08 History
History: 1977 c. 305;
1979 c. 32 ss.
68,
92 (17); Stats. 1979 s. 800.08;
1997 a. 205.
800.08 Note
Judicial Council Committee's Note, 1977: This section sets out the procedure to be followed at trial before a municipal court in ordinance violation cases.
800.08 Annotation
Sub. (1) states the order of presentation of evidence. After the municipality offers evidence in support of the violation, the defendant may present evidence. After each side has offered evidence upon the violation, only rebuttal testimony is allowed unless the court permits otherwise.
800.08 Annotation
Every witness testifying in a municipal court must be sworn. Subsection (2) sets out the method of swearing a witness.
800.08 Annotation
Sub. (3) states that the standard of proof for conviction in a municipal court shall be evidence that is clear, satisfying and convincing.
800.08 Annotation
Sub. (4) states that the Wisconsin Rules of Evidence, chs. 901 to 911, shall apply in municipal court. [Bill 1240-A]
800.09
800.09
Judgment; failure to appear; plea of guilty. 800.09(1)(1)
Judgment. If a municipal court finds a defendant guilty it may render judgment by ordering restitution under
s. 800.093 and payment of a forfeiture, the penalty assessment imposed by
s. 165.87, the jail assessment imposed by
s. 302.46 (1), the crime laboratories and drug law enforcement assessment imposed by
s. 165.755 and any applicable domestic abuse assessment imposed by
s. 973.055 (1) plus costs of prosecution, including the fee prescribed in
s. 814.65 (1). The court shall apply any payment received on a judgment that includes restitution to first satisfy any payment of restitution ordered, then to pay the forfeiture, assessments and costs. If the judgment is not paid, the court may proceed under
par. (a),
(b) or
(c) or any combination of those paragraphs, as follows:
800.09(1)(a)
(a) The court may defer payment of any judgment or provide for instalment payments. At the time the judgment is rendered, the court shall inform the defendant, orally and in writing, of the date by which restitution and the payment of the forfeiture, the penalty assessment, the jail assessment, the crime laboratories and drug law enforcement assessment and any applicable domestic abuse assessment plus costs must be made, and of the possible consequences of failure to do so in timely fashion, including imprisonment, as provided in
s. 800.095, or suspension of the defendant's motor vehicle operating privilege, as provided in
par. (c), if applicable. If the defendant is not present, the court shall ensure that the information is sent to the defendant by mail. In 1st class cities, all of the written information required by this paragraph shall be printed in English and Spanish and provided to each defendant.
800.09(1)(b)
(b) If the defendant agrees to perform community service work in lieu of making restitution or paying the forfeiture, assessments and costs, or both, the court may order that the defendant perform community service work for a public agency or a nonprofit charitable organization that is designated by the court. Community service work may be in lieu of restitution only if also agreed to by the public agency or nonprofit charitable organization and by the person to whom restitution is owed. The court may utilize any available resources, including any community service work program, in ordering the defendant to perform community service work. The number of hours of community service work required may not exceed the number determined by dividing the amount owed on the forfeiture by the minimum wage established under
ch. 104 for adults in nonagriculture, nontipped employment. The court shall ensure that the defendant is provided a written statement of the terms of the community service order and that the community service order is monitored.
800.09(1)(c)
(c) The court may suspend the defendant's operating privilege, as defined in
s. 340.01 (40), until restitution is made and the forfeiture, assessments and costs are paid, if the defendant has not done so within 60 days after the date the restitution or payments or both are to be made under
par. (a) and has not notified the court that he or she is unable to comply with the judgment, as provided under
s. 800.095 (4) (a), except that the suspension period may not exceed 5 years. The court shall take possession of the suspended license and shall forward the license, along with a notice of the suspension clearly stating that the suspension is for failure to comply with a judgment of the court, to the department of transportation.
Effective date note
NOTE: Par. (c) is amended eff. 5-1-2000 or the date stated in the notice published by the secretary of transportation in the Wisconsin Administrative Register under s. 85.515, whichever is earlier, by
1997 Wis. Act 84 to read:
Effective date text
(c) The court may suspend the defendant's operating privilege, as defined in s. 340.01 (40), until restitution is made and the forfeiture, assessments and costs are paid, if the defendant has not done so within 60 days after the date the restitution or payments or both are to be made under par. (a) and has not notified the court that he or she is unable to comply with the judgment, as provided under s. 800.095 (4) (a), except that the suspension period may not exceed 2 years. The court shall take possession of the suspended license and shall forward the license, along with a notice of the suspension clearly stating that the suspension is for failure to comply with a judgment of the court, to the department of transportation.
800.09(2)
(2) Judgment on plea of guilty or no contest or on failure to appear. 800.09(2)(a)(a) If the defendant pleads guilty or no contest, the court shall convict the defendant of the offense charged and render judgment.
800.09(2)(b)
(b) If the person charged fails to appear personally or by an attorney at the time fixed for hearing of the case, the defendant may be deemed to have entered a plea of no contest and the money deposited, if any, or such portion thereof as the court determines to be an adequate penalty, plus the penalty assessment, the jail assessment, the crime laboratories and drug law enforcement assessment and any applicable domestic abuse assessment plus costs, including the fee prescribed in
s. 814.65 (1), may be declared forfeited by the court or may be ordered applied upon the payment of any penalty which may be imposed, together with the penalty assessment, the jail assessment, the crime laboratories and drug law enforcement assessment and any applicable domestic abuse assessment plus costs. If the court finds that the violation meets the conditions in
s. 800.093 (1), the court may summon the alleged violator into court to determine if restitution shall be ordered under
s. 800.093. Any money remaining after payment of any penalties, assessments, costs and restitution shall be refunded to the person who made the deposit.
800.09(2)(c)
(c) This subsection shall not apply to violations of parking ordinances. Bail given for appearance to answer a charge under any such ordinance may be forfeited as determined by the municipality.
800.09 Note
Judicial Council Committee's Note, 1977: Sub. (1) governs the procedure for rendering judgment upon a finding of guilty of a defendant. A court may allow the defendant up to 60 days to pay a judgment. Failure to pay a judgment exposes a person to possible commitment to a jail or house of correction for not more than 90 days. If a defendant is indigent and unable to pay the forfeiture, the defendant cannot be imprisoned for nonpayment. The defendant must demonstrate that his or her inability to pay the fine is a result of indigency and must be afforded a hearing to determine his or her ability to pay the fine. See State ex rel. Pedersen v. Blessinger, (1972)
56 Wis. 2d 286,
201 N.W. 2d 778.
800.09 Annotation
Sub. (2) provides that a municipal judge shall convict a defendant of the violation for which he or she is charged if the defendant pleads either guilty or no contest. If the defendant fails to appear at the time that the offense is to be heard by a municipal judge, the judge may deem the defendant to have entered a plea of no contest and then determine the appropriate penalty. Payment for the forfeiture and penalty assessment may be secured from any deposit made by the defendant. Any money remaining from a deposit after payment of the forfeiture, penalty assessment and costs shall then be refunded to the person making the deposit. [Bill 1240-A]
800.09 Annotation
Section 343.30 (5) does not preclude the suspension of operating privileges under s. 800.09 or 800.095. Suspension of operating privileges for failure to pay non-traffic forfeitures is not an unconstitutional exercise of the police power or an unconstitutional excessive fine. City of Milwaukee v. Kilgore, 193 W (2d) 168, 532 NW (2d) 690 (1995).
800.09 Annotation
An award of costs of prosecution does not include actual attorney fees. Town of Wayne v. Bishop, 210 W (2d) 219, 565 NW (2d) 201 (Ct. App. 1997).
800.09 Annotation
This section does not prevent a municipal court from entering judgment as a sanction against a party who it has ordered to appear personally before it where the party did appear by counsel. City of Sun Prairie v. Davis, 217 W (2d) 268, 579 NW (2d) 753 (Ct. App. 1998).
800.093(1)(1) The municipal court, in addition to ordering any payment authorized by law, may order a defendant to make full or partial restitution to any victim or, if the victim is deceased, to his or her estate if the court finds all of the following:
800.093(1)(a)
(a) The defendant is guilty of violating an ordinance that prohibits conduct that is the same as or similar to conduct prohibited by state statute punishable by fine or imprisonment or both.
800.093(1)(b)
(b) The violation resulted in damage to the property of or physical injury to a person other than the defendant.
800.093(2)
(2) Restitution ordered under this section is enforceable in a civil action by the victim named in the order to receive restitution. A court may not order a defendant to pay more than $4,000 in restitution under this section. This $4,000 limit does not apply to restitution ordered for violation of an ordinance that prohibits conduct that is the same as or similar to the conduct prohibited by
s. 943.24 or
943.50.
800.093(3)
(3) If the violation resulted in damage to or loss or destruction of property, the restitution order may require that the defendant do one of the following:
800.093(3)(a)
(a) Return the property to the owner or owner's designee.
800.093(3)(b)
(b) If return of the property under
par. (a) is impossible, impractical or inadequate, pay the owner or owner's designee, subject to the $4,000 limit in
sub. (2), the reasonable repair or replacement cost or the greater of the following:
800.093(3)(b)1.
1. The value of the property on the date of its damage, loss or destruction.
800.093(3)(b)2.
2. The value of the property on the date judgment is rendered, less the value of any part of the property returned, as of the date of its return. The value of retail merchandise shall be its retail value.
800.093(4)
(4) If the violation resulted in physical injury, the restitution order may require that the defendant do one or more of the following, subject to the $4,000 limit in
sub. (2):
800.093(4)(a)
(a) Pay an amount equal to the cost of necessary medical and related professional services and devices relating to physical, psychiatric or psychological care and treatment.
800.093(4)(b)
(b) Reimburse the injured person for income lost as a result of the violation.
800.093(4)(c)
(c) If the injured person's sole employment at the time of the injury was performing the duties of a homemaker, pay an amount sufficient to reimburse the person for any payments made to another to perform those duties from the date of the injury and to ensure that the duties are continued until the person is able to resume performance of the duties.
800.093(5)
(5) The restitution order may require that the defendant do one or more of the following, subject to the $4,000 limit in
sub. (2):
800.093(5)(a)
(a) Pay all special damages, but not general damages, including, but without limitation because of enumeration, the money equivalent of loss resulting from property taken, destroyed, broken or otherwise harmed and out-of-pocket losses, such as medical expenses, substantiated by evidence in the record, that could be recovered in a civil action against the defendant for his or her conduct in the commission of the violation.
800.093(5)(b)
(b) Pay an amount equal to the income lost, and reasonable out-of-pocket expenses incurred, by the person against whom the violation was committed as a result of the commencement of the action or of cooperating in the investigation and prosecution of the violation.
800.093(5)(c)
(c) If justice so requires, reimburse any insurer, surety or other person who has compensated a victim for a loss otherwise compensable under this section.
800.093(6)
(6) If the court orders that restitution be paid to more than one person, the court may direct the sequence in which payments are to be made. The court shall order that all restitution to victims be made before restitution to other persons. If more than one defendant is ordered to make payments to the same person, the court may apportion liability between the defendants or specify joint and several liability. If the court specifies that 2 or more defendants are jointly and severally liable, the court shall distribute any overpayments so that each defendant, as closely as possible, pays the same proportion of the ordered restitution.
800.093(7)
(7) Restitution ordered under this section does not limit or impair the right of a victim to sue and recover damages from the defendant in a civil action. The fact that restitution was required or made is not admissible as evidence in that civil action and has no legal effect on the merits of the civil action. Any restitution made by payment or community service shall be set off against any judgment in favor of the victim in a civil action arising out of the facts or events that were the basis for the restitution. The court trying that civil action shall hold a separate hearing to determine the validity and amount of any setoff asserted by the defendant.
800.093(8)(a)(a) The court, in determining whether to order restitution and the amount thereof, shall consider all of the following:
800.093(8)(a)1.
1. The amount of loss suffered by any victim as a result of the violation.
800.093(8)(a)3.
3. The present and future earning ability of the defendant.
800.093(8)(a)4.
4. The needs and earning ability of the defendant's dependents.
800.093(8)(b)
(b) If the court finds that the conditions in
sub. (1) are met, the court may hold the restitution hearing at the time of any appearance by the defendant before the court or may summon the defendant to appear to determine if restitution shall be ordered. The court shall give the victim an opportunity to present evidence and arguments pertaining to the factor specified in
par. (a) 1. The court shall give the defendant the opportunity to present evidence and arguments on the factors specified in
par. (a). The victim has the burden of demonstrating by the preponderance of the evidence the amount of loss sustained as a result of the violation. The defendant has the burden of demonstrating by the preponderance of the evidence the factors specified in
par. (a) 2. to
5. When hearing evidence as to the factors specified in
par. (a), the court may waive the rules of practice, procedure, pleading and evidence, except provisions relating to privileged communications and personal transactions or communication with a decedent or mentally ill person.
800.093 History
History: 1991 a. 40;
1995 a. 156.
800.095
800.095
Nonpayment of judgment or noncompliance with work order; further proceedings. 800.095(1)
(1)
Nonpayment or noncompliance. If the defendant does not comply with the judgment of the court under
s. 800.09 (1), fails to pay a driver improvement surcharge imposed under
s. 346.655 or fails to comply with the community service work order under
s. 800.09 (1) (b), the court shall issue a warrant to arrest the defendant and bring him or her before the court or a summons ordering the defendant to appear in court, or both. The defendant may be incarcerated prior to the court appearance.
800.095(2)(a)(a) The warrant shall be in the form specified under
s. 800.02 (5). The summons shall be in substantially the following form:
STATE OF WISCONSIN
.... City/Village/Town
State of Wisconsin
vs.
.... Defendant(s)
THE STATE OF WISCONSIN TO THE DEFENDANT
A judgment, a copy of which is attached, has been entered against you for (restitution and) the payment of a civil forfeiture. You were ordered by the court on ...., .... (year) to (make the following payments: ....) (perform the following community service work order: ....) (make the following restitution: ....).
You have failed to comply with that order.
YOU ARE THEREFORE ORDERED to appear before the Honorable .... in .... Courtroom, at the .... Courthouse, in the City/Town/Village of .... at .... a.m./p.m. TO SHOW THAT YOU ARE UNABLE TO (PAY THE FORFEITURE OR MAKE RESTITUTION FOR GOOD CAUSE OR BECAUSE OF YOUR INDIGENCE) (TO COMPLY WITH THE COMMUNITY SERVICE WORK ORDER FOR GOOD CAUSE). If (good cause or your indigence has prevented you from paying the forfeiture or making restitution) (good cause has prevented you from complying with the community service work order), the court will modify the order.
IF YOU FAIL TO APPEAR AT THE TIME AND PLACE DESIGNATED ABOVE, AN ORDER FOR COMMITMENT SHALL BE ISSUED AND YOU WILL BE IMPRISONED IN THE JAIL/HOUSE OF CORRECTIONS. IN ADDITION, AN ORDER MAY BE ISSUED TO SUSPEND YOUR MOTOR VEHICLE OPERATING PRIVILEGE.
Dated: ...., .... (year)
Signature:....
(Municipal Court Judge)
800.095(2)(b)
(b) In 1st class cities, all of the written information required for the summons form under
par. (a) shall be printed in Spanish on a separate sheet attached to the summons.
800.095(3)
(3) Service of summons. The summons authorized under
sub. (1) shall be served in the manner set forth under
s. 800.01 (2).
800.095(4)(a)(a) If the defendant appears before the court pursuant to a warrant or summons issued under
sub. (1) or the defendant otherwise notifies the court that he or she is unable to comply with the judgment or community service work order, the court shall conduct a hearing. If the defendant failed to pay the forfeiture, make restitution or comply with the work order, the court shall determine if the defendant is unable to comply with the judgment for good cause or because of the defendant's indigence or is unable to comply with the work order for good cause.
800.095(4)(b)
(b) If the defendant fails to appear before the court for a hearing conducted under
par. (a) or if the court determines at a hearing under
par. (a) that the failure of the defendant to comply with the judgment is not for good cause or because of the defendant's indigence or that the failure of the defendant to comply with the work order is not for good cause, the court shall order one of the following:
800.095(4)(b)1.
1. That the defendant be imprisoned until the forfeiture, assessments, surcharge and costs are paid, except that the defendant reduces the amount owed at a rate of at least $25 for each day of imprisonment, including imprisonment following an arrest but prior to the findings under this subsection, and the maximum period of imprisonment is 90 days.
800.095(4)(b)2.
2. That the payment schedule or judgment be modified, suspended or permanently stayed.
800.095(4)(b)3.
3. That the defendant perform community service work for a public agency or a nonprofit charitable organization designated by the court, except that the court may not order the defendant to perform community service work unless the defendant agrees to perform community service work and, if the community service work is in lieu of restitution, unless the person to whom the restitution is owed agrees. The court may utilize any available resources, including any community service work program, in ordering the defendant to perform community service work. The number of hours of community service work required may not exceed the number determined by dividing the amount owed on the forfeiture or restitution, or both, by the minimum wage established under
ch. 104 for adults in nonagriculture, nontipped employment. The court shall ensure that the defendant is provided a written statement of the terms of the community service order and that the community service order is monitored.
800.095(4)(b)4.
4. That the defendant's operating privilege, as defined in
s. 340.01 (40), be suspended until the judgment is complied with, except that the suspension period may not exceed 5 years.
Effective date note
NOTE: Subd. 4. is amended eff. 5-1-2000 or the date stated in the notice published by the secretary of transportation in the Wisconsin Administrative Register under s. 85.515, whichever is earlier, by
1997 Wis. Act 84 to read:
Effective date text
4. That the defendant's operating privilege, as defined in s. 340.01 (40), be suspended until the judgment is complied with, except that the suspension period may not exceed 2 years.
800.095(4)(c)
(c) If the court determines that the failure of the defendant to comply with the judgment is for good cause or because of the defendant's indigence or that the failure of the defendant to comply with the work order is for good cause, the court may enter an order under
par. (b) 2. or
3.
800.095(5)
(5) Noncompliance; court order. If the defendant fails to comply with the court order under
sub. (4) (b) 2. or
3., the court may enter an order under
sub. (4) (b) 1.
800.095(6)
(6) Place of imprisonment. If the court orders imprisonment under
sub. (4) (b) 1., the defendant shall be committed to a jail or a house of correction in the county in which the cause of action arose or, if the defendant has been committed to the Wisconsin state prisons, to the prison in which the defendant is an inmate. Except in cases where the defendant has been committed to the Wisconsin state prisons, the municipality shall pay the expense incurred by the county to imprison the defendant. The defendant is eligible for privileges under
s. 303.08.
800.095(7)
(7) Use of ordinary civil remedies. In addition to the procedures under this section, a municipality may enforce the judgment in the same manner as for a judgment in an ordinary civil action.
