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.
939.632(4)
(4) This section provides for the enhancement of the penalties applicable 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).
939.632 History
History: 1995 a. 22.
939.635
939.635
Penalties; assault or battery in secured juvenile facilities or to aftercare agent. 939.635(1)
(1) Except as provided in
sub. (2), if a person who has been adjudicated delinquent is convicted of violating
s. 940.20 (1) while placed in a secured correctional facility, as defined in
s. 938.02 (15m), a secure detention facility, as defined in
s. 938.02 (16), or a secured child caring institution, as defined in
s. 938.02 (15g), or is convicted of violating
s. 940.20 (2m), the court shall sentence the person to not less than 3 years of imprisonment. Except as provided in
sub. (2), if a person is convicted of violating
s. 946.43 while placed in a secured correctional facility, as defined in
s. 938.02 (15m), a secure detention facility, as defined in
s. 938.02 (16), or a secured child caring institution, as defined in
s. 938.02 (15g), the court shall sentence the person to not less than 5 years of imprisonment.
939.635(2)
(2) Notwithstanding
sub. (1), a court may place a person who is subject to
sub. (1) on probation or impose on that person a sentence that is less than the applicable presumptive minimum sentence specified in
sub. (1) only if the court makes all of the following findings of fact and places on the record its reasons for imposing probation or that lesser sentence:
939.635(2)(a)
(a) That placing the person on probation or imposing a lesser sentence would not depreciate the seriousness of the offense.
939.635(2)(b)
(b) That imposing the applicable presumptive minimum sentence specified in
sub. (1) is not necessary to deter the person or other persons from committing violations of
s. 940.20 (1) or
946.43 or other similar offenses while placed in a secured correctional facility, as defined in
s. 938.02 (15m), a secure detention facility, as defined in
s. 938.02 (16), or a secured child caring institution, as defined in
s. 938.02 (15g), or from committing violations of
s. 940.20 (2m).
939.635 History
History: 1993 a. 98;
1995 a. 77,
216.
939.635 Annotation
This section does not violate a defendant's right to equal protection. State v. Martin, 191 W (2d) 647, 530 NW (2d) 420 (Ct. App. 1995).
939.64
939.64
Penalties; use of bulletproof garment. 939.64(1)
(1) In this section, "bulletproof garment" means a vest or other garment designed, redesigned or adapted to prevent bullets from penetrating through the garment.
939.64(2)
(2) If a person commits a felony while wearing a bulletproof garment, the maximum term of imprisonment prescribed by law for that crime may be increased by 10 years.
939.64 History
History: 1983 a. 478;
1995 a. 340.
939.641
939.641
Penalty; concealing identity. If a person commits a crime while his or her usual appearance has been concealed, disguised or altered, with intent to make it less likely that he or she will be identified with the crime, the penalties may be increased as follows:
939.641(1)
(1) In case of a misdemeanor, the maximum fine prescribed by law for the crime may be increased by not more than $10,000 and the maximum term of imprisonment prescribed by law for the crime may be increased so that the revised maximum term of imprisonment is one year in the county jail.
