939.62 Cross-reference
Cross-reference: For procedure, see s.
973.12.
939.62 Annotation
See note to Art. I, sec. 6, citing Hanson v. State, 48 W (2d) 203, 179 NW (2d) 909.
939.62 Annotation
A repeater charge must be withheld from jury's knowledge since it is relevant only to sentencing. Mulkovich v. State, 73 W (2d) 464, 243 NW (2d) 198.
939.62 Annotation
Because this section authorizes penalty enhancement only when maximum underlying sentence is imposed, enhancement portion of sub-maximum sentence is vacated as abuse of sentencing discretion. State v. Harris, 119 W (2d) 612, 350 NW (2d) 633 (1984).
939.62 Annotation
In (2), "convicted of a misdemeanor on 3 separate occasions" requires 3 separate misdemeanors, not 3 separate court appearances. State v. Wittrock, 119 W (2d) 664, 350 NW (2d) 647 (1984).
939.62 Annotation
Court's acceptance of guilty plea or verdict is sufficient to trigger operation of this section; completion of sentencing procedure is not prerequisite. State v. Wimmer, 152 W (2d) 654, 449 NW (2d) 621 (Ct. App. 1989).
939.62 Annotation
Felony convictions entered following waiver from juvenile court are proper basis for repeater allegation; offenses were not "handled through" ch. 48. State v. Kastner, 156 W (2d) 371, 457 NW (2d) 331 (Ct. App. 1990).
939.62 Annotation
Sub. (1) is applicable when concurrent maximum sentences are imposed for multiple offenses. Consecutive sentences are not required. State v. Davis, 165 W (2d) 78, 477 NW (2d) 307 (Ct. App. 1991).
939.62 Annotation
See note to 161.48 citing State v. Ray, 166 W (2d) 855, 481 NW (2d) 288 (Ct. App. 1992).
939.62 Annotation
Each conviction for a misdemeanor constitutes a "separate occasion" for purposes of (2). State v. Hopkins, 168 W (2d) 802, 484 NW (2d) 549 (1992).
939.62 Annotation
Enhancement of sentence under this section did not violate double jeopardy. State v. James, 169 W (2d) 490, 485 NW (2d) 436 (Ct. App. 1992).
939.62 Annotation
This section does not grant a trial court authority to increase a punitive sanction for contempt of court. State v. Carpenter, 179 W (2d) 838, 508 NW (2d) 69 (Ct. App. 1993).
939.62 Annotation
The state is charged with proving a prior conviction and that it lies within the 5-year window of sub. (2). State v. Goldstein, 182 W (2d) 251, 513 NW (2d) 631 (Ct. App. 1994).
939.62 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. State v. Zimmermann, 185 W (2d) 549, 518 NW (2d) 303 (Ct. App. 1994).
939.62 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) 264 (Ct. App. 1994).
939.62 Annotation
A commitment under the Sex Crimes Law, ch. 975, is not a sentence under sub. (2). State v. Kruzycki, 192 W (2d) 509, 531 NW (2d) 429 (Ct. App. 1995).
939.62 Annotation
Sub. (2m) (b) is constitutional. It does not violate the guaranty against cruel and unusual punishment, the principal of separation of powers or the guaranty of equal protection. State v. Lindsey, 203 W (2d) 423, 554 NW (2d) 215 (Ct. App. 1996).
939.62 Annotation
A conviction for purposes of sub. (2) occurs when the judgment of conviction under s. 972.13 is entered and not from the date the guilt is found. Mikrut v. State, 212 W (2d) 859, 569 NW (2d) 765 (Ct. App. 1997).
939.62 Annotation
Section 973.13 commands that all sentences in excess of that authorized by law be declared void, including the repeater portion of a sentence. Prior postconviction motions that failed to challenge the validity of the sentence do not bar seeking relief from faulty repeater sentences. State v. Flowers, 221 W (2d) 20, ___ NW (2d) ___ (Ct. App. 1998).
939.621
939.621
Increased penalty for certain domestic abuse offenses. If a person commits an act of domestic abuse, as defined in
s. 968.075 (1) (a) and the act constitutes the commission of a crime, the maximum term of imprisonment for that crime may be increased by not more than 2 years if the crime is committed during the 72 hours immediately following an arrest for a domestic abuse incident, as set forth in
s. 968.075 (5). The 72-hour period applies whether or not there has been a waiver by the victim under
s. 968.075 (5) (c). The victim of the domestic abuse crime does not have to be the same as the victim of the domestic abuse incident that resulted in the arrest. The penalty increase under this section changes the status of a misdemeanor to a felony.
939.621 History
History: 1987 a. 346;
1995 a. 304.
939.622
939.622
Committing a serious sex crime while infected with acquired immuno deficiency syndrome, HIV or a sexually transmitted disease. 939.622(1)(a)
(a) "HIV" means any strain of human immunodeficiency virus, which causes acquired immunodeficiency syndrome.
939.622(1)(c)
(c) "Sexually transmitted disease" means syphilis, gonorrhea, hepatitis B, hepatitis C or chlamydia.
939.622(1)(d)
(d) "Significantly exposed" means sustaining a contact which carries a potential for transmission of a sexually transmitted disease or HIV by one or more of the following:
939.622(1)(d)1.
1. Transmission, into a body orifice or onto mucous membrane, of blood; semen; vaginal secretions; cerebrospinal, synovial, pleural, peritoneal, pericardial or amniotic fluid; or other body fluid that is visibly contaminated with blood.
939.622(1)(d)2.
2. Exchange, during the accidental or intentional infliction of a penetrating wound, including a needle puncture, of blood; semen; vaginal secretions; cerebrospinal, synovial, pleural, peritoneal, pericardial or amniotic fluid; or other body fluid that is visibly contaminated with blood.
939.622(1)(d)3.
3. Exchange, into an eye, an open wound, an oozing lesion, or other place where a significant breakdown in the epidermal barrier has occurred, of blood; semen; vaginal secretions; cerebrospinal, synovial, pleural, peritoneal, pericardial or amniotic fluid; or other body fluid that is visibly contaminated with blood.
939.622(2)
(2) The maximum term of imprisonment for a serious sex crime may be increased by not more than 5 years if all of the following apply:
939.622(2)(a)
(a) At the time that he or she commits the serious sex crime, the person convicted of committing the serious sex crime has a sexually transmitted disease or acquired immunodeficiency syndrome or has had a positive test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV.
939.622(2)(b)
(b) At the time that he or she commits the serious sex crime, the person convicted of committing the serious sex crime knows that he or she has a sexually transmitted disease or acquired immunodeficiency syndrome or that he or she has had a positive test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV.
939.622(2)(c)
(c) The victim of the serious sex crime was significantly exposed to HIV or to the sexually transmitted disease, whichever is applicable, by the acts constituting the serious sex crime.
939.622(3)
(3) This section provides for the enhancement of the maximum term of imprisonment provided for the underlying crime. The court shall direct that the trier of fact find a special verdict as to all of the issues specified in
sub. (2).
939.622 History
History: 1997 a. 276.
939.623
939.623
Increased penalty; repeat serious sex crimes. 939.623(2)
(2) If a person has one or more prior convictions for a serious sex crime and subsequently commits a serious sex crime, the court shall sentence the person to not less than 5 years' imprisonment, but otherwise the penalties for the crime apply, subject to any applicable penalty enhancement. The court shall not place the defendant on probation.
939.623 History
History: 1993 a. 97,
227;
1997 a. 326.
939.624
939.624
Increased penalty; repeat serious violent crimes. 939.624(2)
(2) If a person has one or more prior convictions for a serious violent crime or a crime punishable by life imprisonment and subsequently commits a serious violent crime, the court shall sentence the person to not less than 5 years' imprisonment, but otherwise the penalties for the crime apply, subject to any applicable penalty enhancement. The court shall not place the defendant on probation.
939.624 History
History: 1993 a. 97.
939.625
939.625
Increased penalty for criminal gang crimes. 939.625(1)(a)(a) If a person is convicted of a crime under
chs. 939 to
948 or
961 committed for the benefit of, at the direction of or in association with any criminal gang, with the specific intent to promote, further or assist in any criminal conduct by criminal gang members, the penalties for the underlying crime are increased as provided in
par. (b).
939.625(1)(b)1.
1. The maximum term of imprisonment for a misdemeanor may be increased by not more than 6 months. This subdivision does not change the status of the crime from a misdemeanor to a felony.
939.625(1)(b)2.
2. If the maximum term of imprisonment for a felony is more than 5 years or is a life term, the maximum term of imprisonment for the felony may be increased by not more than 5 years.
939.625(1)(b)3.
3. If the maximum term of imprisonment for a felony is more than 2 years, but not more than 5 years, the maximum term of imprisonment for the felony may be increased by not more than 4 years.
939.625(1)(b)4.
4. The maximum term of imprisonment for a felony not specified in
subd. 2. or
3. may be increased by not more than 3 years.
939.625(2)
(2) The court shall direct that the trier of fact find a special verdict as to whether the underlying crime was committed for the benefit of, at the direction of or in association with any criminal gang, with the specific intent to promote, further or assist in any criminal conduct by criminal gang members.
939.625 History
History: 1993 a. 98;
1995 a. 448.
939.63
939.63
Penalties; use of a dangerous weapon. 939.63(1)(a)(a) If a person commits a crime while possessing, using or threatening to use a dangerous weapon, the maximum term of imprisonment prescribed by law for that crime may be increased as follows:
939.63(1)(a)1.
1. The maximum term of imprisonment for a misdemeanor may be increased by not more than 6 months.
939.63(1)(a)2.
2. If the maximum term of imprisonment for a felony is more than 5 years or is a life term, the maximum term of imprisonment for the felony may be increased by not more than 5 years.
939.63(1)(a)3.
3. If the maximum term of imprisonment for a felony is more than 2 years, but not more than 5 years, the maximum term of imprisonment for the felony may be increased by not more than 4 years.
939.63(1)(a)4.
4. The maximum term of imprisonment for a felony not specified in
subd. 2. or
3. may be increased by not more than 3 years.
939.63(1)(b)
(b) The increased penalty provided in this subsection does not apply if possessing, using or threatening to use a dangerous weapon is an essential element of the crime charged.
939.63(2)
(2) Whoever is convicted of committing a felony while possessing, using or threatening to use a dangerous weapon shall be sentenced to a minimum term of years in prison, unless the sentencing court otherwise provides. The minimum term for the first application of this subsection is 3 years. The minimum term for any subsequent application of this subsection is 5 years. If the court places the person on probation or imposes a sentence less than the presumptive minimum sentence, it shall place its reasons for so doing on the record.
939.63 Annotation
Fact that maximum term for misdemeanor may exceed one year under (1) (a) 1 does not upgrade crime to felony status. State v. Denter, 121 W (2d) 118, 357 NW (2d) 555 (1984).
939.63 Annotation
Possession encompasses both actual and constructive possession. To prove a violation of this section, the state must prove that the defendant possessed the weapon to facilitate the predicate offense. State v. Peete, 185 W (2d) 255, 517 NW (2d) 149 (1994). See also State v. Howard, 211 W (2d) 269, 564 NW (2d) 753 (1997).
939.63 Annotation
An automobile may constitute a dangerous weapon under s. 939.22 (10). State v. Bidwell, 200 W (2d) 200, 546 NW (2d) 507 (Ct. App. 1996).
939.632
939.632
Penalties; violent crime in a school zone. 939.632(1)(a)
(a) "School" means a public, parochial or private school that provides an educational program for one or more grades between grades 1 and 12 and that is commonly known as an elementary school, middle school, junior high school, senior high school or high school.
939.632(1)(c)
(c) "School premises" means any school building, grounds, recreation area or athletic field or any other property owned, used or operated for school administration.
939.632(1)(d)3.
3. On a school bus or public transportation transporting students to and from a public or private school.
939.632(1)(d)3m.
3m. At school bus stops where students are waiting for a school bus or are being dropped off by a school bus.
939.632(1)(e)1.
1. Any felony under
s. 940.01,
940.02,
940.03,
940.05,
940.09 (1),
940.19 (2),
(3),
(4) or
(5),
940.21,
940.225 (1),
(2) or
(3),
940.305,
940.31,
941.20,
941.21,
943.02,
943.06,
943.10 (2),
943.23 (1g),
(1m) or
(1r),
943.32 (2),
948.02 (1) or
(2),
948.025,
948.03 (2) (a) or
(c),
948.05,
948.055,
948.07,
948.08,
948.30 (2),
948.35 (1) (b) or
(c) or
948.36.
939.632(2)
(2) If a person commits a violent crime in a school zone, the maximum period of imprisonment is increased as follows:
939.632(2)(a)
(a) If the violent crime is a felony, the maximum period of imprisonment is increased by 5 years.
939.632(2)(b)
(b) If the violent crime is a misdemeanor, the maximum period of imprisonment is increased by 3 months and the place of imprisonment is the county jail.
939.632(3)(a)(a) In addition to any other penalties that may apply to the crime under
sub. (2), the court may require the person to complete 100 hours of community service work for a public agency or a nonprofit charitable organization. The court shall ensure that the defendant is provided a written statement of the terms of the community service order. Any organization or agency acting in good faith to which a defendant is assigned under an order under this paragraph has immunity from any civil liability in excess of $25,000 for acts or omissions by or impacting on the defendant.
939.632(3)(b)
(b) The court shall not impose the requirement under
par. (a) if the court determines that the person would pose a threat to public safety while completing the requirement.
