973.01(2)
(2) Structure of bifurcated sentences. The court shall ensure that a bifurcated sentence imposed under
sub. (1) complies with all of the following:
973.01(2)(a)
(a)
Total length of bifurcated sentence. Except as provided in
par. (c), the total length of the bifurcated sentence may not exceed the maximum period of imprisonment for the felony.
973.01(2)(b)
(b)
Imprisonment portion of bifurcated sentence. The portion of the bifurcated sentence that imposes a term of confinement in prison may not be less than one year, subject to any minimum sentence prescribed for the felony, and, except as provided in
par. (c), may not exceed whichever of the following is applicable:
973.01(2)(b)1.
1. For a Class B felony, the term of confinement in prison may not exceed 40 years.
973.01(2)(b)2.
2. For a Class BC felony, the term of confinement in prison may not exceed 20 years.
973.01(2)(b)3.
3. For a Class C felony, the term of confinement in prison may not exceed 10 years.
973.01(2)(b)4.
4. For a Class D felony, the term of confinement in prison may not exceed 5 years.
973.01(2)(b)5.
5. For a Class E felony, the term of confinement in prison may not exceed 2 years.
973.01(2)(b)6.
6. For any felony other than a felony specified in
subds. 1. to
5., the term of confinement in prison may not exceed 75% of the total length of the bifurcated sentence.
973.01(2)(c)
(c)
Penalty enhancement. The maximum term of confinement in prison specified in
par. (b) may be increased by any applicable penalty enhancement. If the maximum term of confinement in prison specified in
par. (b) is increased under this paragraph, the total length of the bifurcated sentence that may be imposed is increased by the same amount.
973.01(2)(d)
(d)
Minimum term of extended supervision. The term of extended supervision that follows the term of confinement in prison may not be less than 25% of the length of the term of confinement in prison imposed under
par. (b).
973.01(3)
(3) Not applicable to life sentences. If a person is being sentenced for a felony that is punishable by life imprisonment, he or she is not subject to this section but shall be sentenced under
s. 973.014 (1g).
973.01(3m)
(3m) Challenge incarceration program eligibility. When imposing a bifurcated sentence under this section on a person convicted of a crime other than a crime specified in
ch. 940 or
s. 948.02,
948.025,
948.03,
948.05,
948.055,
948.06,
948.07,
948.08 or
948.095, the court shall, as part of the exercise of its sentencing discretion, decide whether the person being sentenced is eligible or ineligible for the challenge incarceration program under
s. 302.045 during the term of confinement in prison portion of the bifurcated sentence.
973.01(4)
(4) No good time; extension or reduction of term of imprisonment. A person sentenced to a bifurcated sentence under
sub. (1) shall serve the term of confinement in prison portion of the sentence without reduction for good behavior. The term of confinement in prison portion is subject to extension under
s. 302.113 (3) and, if applicable, to reduction under
s. 302.045 (3m).
973.01(5)
(5) extended supervision conditions. Whenever the court imposes a bifurcated sentence under
sub. (1), the court may impose conditions upon the term of extended supervision.
973.01(6)
(6) No parole. A person serving a bifurcated sentence imposed under
sub. (1) is not eligible for release on parole.
973.01(7)
(7) No discharge. The department of corrections may not discharge a person who is serving a bifurcated sentence from custody, control and supervision until the person has served the entire bifurcated sentence.
973.01(8)(a)(a) When a court imposes a bifurcated sentence under this section, it shall explain, orally and in writing, all of the following to the person being sentenced:
973.01(8)(a)2.
2. The amount of time the person will serve in prison under the term of confinement in prison portion of the sentence.
973.01(8)(a)3.
3. The amount of time the person will spend on extended supervision, assuming that the person does not commit any act that results in the extension of the term of confinement in prison under
s. 302.113 (3).
973.01(8)(a)4.
4. That the amount of time the person must actually serve in prison may be extended as provided under
s. 302.113 (3) and that because of extensions under
s. 302.113 (3) the person could serve the entire bifurcated sentence in prison.
973.01(8)(a)5.
5. That the person will be subject to certain conditions while on release to extended supervision, and that violation of any of those conditions may result in the person being returned to prison, as provided under
s. 302.113 (9).
973.01(8)(am)
(am) If the court provides under
sub. (3m) that the person is eligible for the challenge incarceration program, the court shall also inform the person of the provisions of
s. 302.045 (3m).
973.01(8)(b)
(b) The court's explanation under
par. (a) 3. of a person's potential period of extended supervision does not create a right to a minimum period of extended supervision.
973.01 History
History: 1997 a. 283.
973.013
973.013
Indeterminate sentence; Wisconsin state prisons. 973.013(1)(a)(a) If imprisonment in the Wisconsin state prisons for a term of years is imposed, the court may fix a term less than the prescribed maximum. The form of such sentence shall be substantially as follows: "You are hereby sentenced to the Wisconsin state prisons for an indeterminate term of not more than .... (the maximum as fixed by the court) years."
973.013(1)(b)
(b) Except as provided in
s. 973.01, the sentence shall have the effect of a sentence at hard labor for the maximum term fixed by the court, subject to the power of actual release from confinement by parole by the department or by pardon as provided by law. If a person is sentenced for a definite time for an offense for which the person may be sentenced under this section, the person is in legal effect sentenced as required by this section, said definite time being the maximum period. A defendant convicted of a crime for which the minimum penalty is life shall be sentenced for life.
973.013(2)
(2) Upon the recommendation of the department, the governor may, without the procedure required by
ch. 304, discharge absolutely, or upon such conditions and restrictions and under such limitation as the governor thinks proper, any inmate committed to the Wisconsin state prisons after he or she has served the minimum term of punishment prescribed by law for the offense for which he or she was sentenced, except that if the term was life imprisonment, 5 years must elapse after release on parole or extended supervision before such a recommendation can be made to the governor. The discharge has the effect of an absolute or conditional pardon, respectively.
973.013(3)
(3) Female persons convicted of a felony may be committed to the Taycheedah correctional institution unless they are subject to
sub. (3m).
973.013(3m)
(3m) If a person who has not attained the age of 16 years is sentenced to the Wisconsin state prisons, the department of corrections shall place the person at a secured juvenile correctional facility or a secured child caring institution, unless the department of corrections determines that placement in an institution under
s. 302.01 is appropriate based on the person's prior record of adjustment in a correctional setting, if any; the person's present and potential vocational and educational needs, interests and abilities; the adequacy and suitability of available facilities; the services and procedures available for treatment of the person within the various institutions; the protection of the public; and any other considerations promulgated by the department of corrections by rule. This subsection does not preclude the department of corrections from designating an adult correctional institution as a reception center for the person and subsequently transferring the person to a secured juvenile correctional facility or a secured child caring institution.
Section 302.11 and
ch. 304 apply to all persons placed in a secured juvenile correctional facility or a secured child caring institution under this subsection.
973.013(4)
(4) If information under
s. 972.15 (2m) has been provided in a presentence investigation report, the court shall consider that information when sentencing the defendant.
973.013 Annotation
The supreme court adopts Standard 2.3 (c) of the ABA Standards Relating to Appellate Review of Sentences, thereby requiring the sentencing judge to state for the record in the presence of the defendant the reasons for selecting the particular sentence imposed or, if the sentencing judge deems it in the interest of the defendant not to state his reasons in the presence of the defendant, to prepare a statement for transmission to the reviewing court as part of the record. McCleary v. State, 49 W (2d) 263, 182 NW (2d) 512.
973.013 Annotation
It is not a denial of equal treatment to sentence a defendant to 4 years imprisonment although other persons involved (all minors) received lesser or no punishment. State v. Schilz, 50 W (2d) 395, 184 NW (2d) 134.
973.013 Annotation
An abuse of discretion, as it relates to sentencing procedures, will be found only where there is no rational basis for the imposition of the sentence or these rationale are not articulated in, or inferable from, the record, or where discretion is exercised on the basis of clearly irrelevant or improper factors. Davis v. State, 52 W (2d) 697, 190 NW (2d) 890.
973.013 Annotation
It is not an abuse of discretion to sentence a mature man to 7 years in prison for a sex offense against a 5 year old boy. Bastian v. State, 54 W (2d) 240, 194 NW (2d) 687.
973.013 Annotation
Trial court increase of the defendant's sentence based solely on "reflection", did not constitute a valid basis for modification of a sentence, because this was not a "new factor" justifying a more severe sentence, a prerequisite for sentence reevaluation. Scott v. State, 64 W (2d) 54, 218 NW (2d) 350.
973.013 Annotation
The trial court must take into consideration the time the defendant has spent in preconviction custody. Such consideration must be given even though the time spent in custody when added to the sentence would be less than the maximum. State v. Tew, 54 W (2d) 361, modified by making such consideration mandatory rather than permissive. Byrd v. State, 65 W (2d) 415, 222 NW (2d) 696.
973.013 Annotation
Where the preconviction time in jail added to the sentence imposed does not reach the maximum possible under the statute, the rule in Byrd and the credit it gives is inapplicable. State v. Seals, 65 W (2d) 434, 223 NW (2d) 158.
973.013 Annotation
Defendant's contention that he is being punished 3 times for carrying a weapon on the night in question is erroneous. He was convicted and sentenced for 3 acts. Ruff v. State, 65 W (2d) 713, 223 NW (2d) 446.
973.013 Annotation
Sentence of the maximum 5 years in prison is reduced to reflect 89 days of a total 118 days of pretrial incarceration during which time defendant was unable to raise bail because of indigency. Wilkins v. State, 66 W (2d) 628, 225 NW (2d) 492.
973.013 Annotation
A defendant's change in attitude or rehabilitative progress subsequent to sentencing is a factor to be considered by the department of health and social services in determining parole but is not a proper consideration upon which a trial court might base a reduction of sentence. State v. Wuensch, 69 W (2d) 467, 230 NW (2d) 665.
973.013 Annotation
Byrd is not applicable to confinement during nonworking hours imposed subsequent to conviction as a condition of a probation which is later revoked. State v. Wills, 69 W (2d) 489, 230 NW (2d) 827.
973.013 Annotation
The trial court's modification and making concurrent of certain of defendant's sentences for burglary was proper on the basis that subsequent to imposition of sentence the supreme court determined in Edelman v. State, 62 W (2d) 613, that a prison sentence has a minimum parole eligibility of one-year, because at the original sentencing hearing, the state emphasized eligibility for "instant parole" as a reason for the imposition of a substantial sentence on the first count and consecutive sentences on the other counts. Kutchera v. State, 69 W (2d) 534, 230 NW (2d) 750.
973.013 Annotation
A defendant financially unable to make bail who is convicted of multiple offenses and given the statutory maximum for each offense, with sentences imposed to run concurrently, must be credited with his presentence incarceration as having received the maximum allowable sentence, since each sentence is considered separately, and the fact that the trial court chose to impose the sentences concurrently rather than consecutively does not alter the fact that each sentence was the maximum provided by law. Mitchell v. State, 69 W (2d) 695, 230 NW (2d) 884.
973.013 Annotation
Although evidence concerning the incidents of sexual activity abroad was relevant as to defendant's character and thus admissible at the sentencing hearing, the trial court abused its discretion by punishing defendant not only for the crime of which he stood convicted, but for the events which occurred outside Wisconsin, as indicated by the fact that both sentencing hearings were devoted largely to these foreign incidents. Rosado v. State, 70 W (2d) 280, 234 NW (2d) 69.
973.013 Annotation
Trial court exceeded jurisdiction by specifying conditions of incarceration. State v. Gibbons, 71 W (2d) 94, 237 NW (2d) 33.
973.013 Annotation
Plea bargain agreements by law enforcement officials not to reveal relevant and pertinent information to sentencing judge are unenforceable as being against public policy. Grant v. State, 73 W (2d) 441, 243 NW (2d) 186.
973.013 Annotation
Chronic offenses of theft by fraud by promising to marry several persons provide a rational basis for lengthy sentence. Lambert v. State, 73 W (2d) 590, 243 NW (2d) 524.
973.013 Annotation
Sentencing judge does not deny due process by considering pending criminal charges in determining sentence. Scope of judicial inquiry prior to sentencing discussed. Handel v. State, 74 W (2d) 699, 247 NW (2d) 711.
973.013 Annotation
See note to Art I, sec. 8, citing Holmes v. State, 76 W (2d) 259, 251 NW (2d) 56.
973.013 Annotation
See note to Art. I, sec. 8, citing Williams v. State, 79 W (2d) 235, 255 NW (2d) 504.
973.013 Annotation
Where consecutive sentences are imposed, pretrial incarceration due to indigency should be credited as time served on only one sentence. Wilson v. State, 82 W (2d) 657, 264 NW (2d) 234.
973.013 Annotation
Courts may correct formal or clerical errors or an illegal sentence at any time. Krueger v. State, 86 W (2d) 435, 272 NW (2d) 847 (1979).
973.013 Annotation
Trial court did not abuse discretion during resentencing where it refused to give defendant credit for time served on unrelated conviction which was voided. State v. Allison, 99 W (2d) 391, 298 NW (2d) 286 (Ct. App. 1980).
973.013 Annotation
See note to 971.08, citing State v. Johnson, 105 W (2d) 657, 314 NW (2d) 897 (Ct. App. 1981).
973.013 Annotation
Prosecutor is relieved from terms of plea agreement where it is judicially determined that defendant has materially breached its conditions. State v. Rivest, 106 W (2d) 406, 316 NW (2d) 395 (1982).
973.013 Annotation
See note to Art. I, sec. 8, citing State v. Jackson, 110 W (2d) 548, 329 NW (2d) 182 (1983).
973.013 Annotation
Increased sentence following vacated plan agreement and subsequent conviction did not violate Pearce-Denny due process doctrine. Test for judicial vindictiveness discussed. State v. Stubbendick, 110 W (2d) 693, 329 NW (2d) 399 (1983).
973.013 Annotation
Reduction in maximum statutory penalty for offense is not "new factor" justifying postconviction motion to modify sentence. State v. Hegwood, 113 W (2d) 544, 335 NW (2d) 399 (1983).
973.013 Annotation
Eighty-year sentence for first-time sexual offender was not abuse of discretion. State v. Curbello-Rodriguez, 119 W (2d) 414, 351 NW (2d) 758 (Ct. App. 1984).
973.013 Annotation
Unambiguous sentence pronounced orally and recorded in sentencing transcript controls over written judgment of conviction. State v. Perry, 136 W (2d) 92, 401 NW (2d) 748 (1987).
973.013 Annotation
Sentencing court does not abuse discretion in considering victim's statements and recommendations. State v. Johnson, 158 W (2d) 458, 463 NW (2d) 352 (Ct. App. 1990).
973.013 Annotation
Due process does not require the presence of counsel at a presentence investigation interview of the defendant. State v. Perez, 170 W (2d) 130, 487 NW (2d) 630 (Ct. App. 1992).
973.013 Annotation
Whether a particular factor will be considered as a mitigating or aggravating factor will depend on the particular defendant and case. State v. Thompson, 172 W (2d) 257, 493 NW (2d) 729 (Ct. App. 1992).
973.013 Annotation
Trial court's possible consideration at sentencing of defendant's culpability in more serious offense although jury convicted on a lesser included offense was not error. State v. Marhal, 172 W (2d) 491, 493 NW (2d) 758 (Ct. App. 1992). See also State v. Bobbitt, 178 W (2d) 11, 503 NW (2d) 11 (Ct. App. 1993).
973.013 Annotation
No specific burden of proof is imposed as to read-in offenses which bear upon sentencing; all sentencing is under the standard of judicial discretion. State v. Hubert, 181 W (2d) 333, 510 NW (2d) 799 (Ct. App. 1993).
973.013 Annotation
A sentencing court may consider a defendant's religious beliefs and practices only if a reliable nexus exists between the defendant's criminal conduct and those beliefs and practices. State v. Fuerst, 181 W (2d) 903, 512 NW (2d) 243 (Ct. App. 1994).
973.013 Annotation
Where an oral pronouncement is ambiguous, it is proper to look to the written judgment to ascertain a court's intent in sentencing. An omission in the oral pronouncement can create an ambiguity. State v. Lipke, 186 W (2d) 358, 521 NW (2d) 444 (Ct. App. 1994).
973.013 Annotation
Under s. 973.013, 1991 stats., [now sub. (1)], life imprisonment without parole is not an option. State v. Setagord, 187 W (2d) 339, 523 NW (2d) 124 (Ct. App. 1994).
973.013 Annotation
A plea agreement is analogous to a contract and contract law principals are drawn upon to interpret an agreement. The state's enforcement of a penalty provision of the plea agreement did not require an evidentiary hearing to determine a breach where the breach was obvious and material. State v. Toliver, 187 W (2d) 345, 523 NW (2d) 113 (Ct. App. 1994).
973.013 Annotation
An executory plea bargain is without constitutional significance and a defendant has no right to require the performance of the agreement, but upon entry of a plea due process requires the defendant's expectations to be fulfilled. State v. Wills, 187 W (2d) 528, 523 NW (2d) 569 (Ct. App. 1994).
973.013 Annotation
A defendant who requests resentencing must show specific information was inaccurate and that the court relied on it. Where facts stated in a presentence report are not challenged at sentencing, the sentencing judge may appropriately consider them. State v. Mosley, 201 W (2d) 36, 547 NW (2d) 806 (Ct. App. 1996).
973.013 Annotation
A court must consider 3 primary factors in exercising discretion in sentencing: the gravity of the offense, the character of the offender and the need to protect the public. Remorse is an additional factor which may be considered. State v. Rodgers, 203 W (2d) 83, 552 NW (2d) 123 (Ct. App. 1996). For enumeration of other additional factors which may be considered, see, State v. Barnes, 203 W (2d) 132, 552 NW (2d) 857 (Ct. App. 1996).
973.013 Annotation
A defendant is automatically prejudiced when the prosecutor materially and substantially breaches a plea agreement. New sentencing is required. State v. Smith, 207 W (2d) 259, 558 NW (2d) 379 (1997).
973.013 Annotation
When resentencing a defendant, a court should consider all information relevant about a defendant, including information not existing or not known when sentence was first passed. State v. Carter, 208 W (2d) 142, 560 NW (2d) 256 (1997).
973.013 Annotation
A marital relationship between the prosecutor of a case and the presentence repot writer is sufficient to draw the objectivity of the report into question. It was error not to strike such a report. State v. Suchocki, 208 W (2d) 509, 561 NW (2d) 332 (Ct. App. 1997).
973.013 Annotation
Rehabilitation may not be considered as a "new factor" for purposes of modifying an already imposed sentence. State v. Kluck, 210 W (2d) 1, 563 NW (2d) 468 (1997).
973.013 Annotation
A new factor justifying sentence modification is a fact that is highly relevant but not known by the judge at the time of sentencing because it did not exist or was unknowingly overlooked. The new factor must operate to frustrate the sentencing court's original intent. State v. Johnson, 210 W (2d) 197, 565 NW (2d) 191 (Ct. App. 1997).
973.013 Annotation
Evidence of unproven offenses involving the defendant my be considered in sentencing decisions as the court must must consider whether the crime is an isolated act or part of a pattern of conduct. State v. Fisher, 211 W (2d) 664, 565 NW (2d) 565 (Ct. App. 1997).
973.013 Annotation
The unintentional misstatement of a plea agreement, promptly rectified by the efforts of both counsel, did not deny the defendant's due process right to have the full benefit of a relied upon plea bargain. State v. Knox, 213 W (2d) 318, 570 NW (2d) 599 (Ct. App. 1997)
973.013 Annotation
The court's acceptance a guilty plea and order to implement a diversion agreement, the successful completion of which would have resulted in dismissal of criminal charges, constituted "sentencing". The standard to be applied in deciding a motion to withdraw the guilty plea was the "manifest injustice" standard applicable to such motions after sentence has been entered. State v. Barney, 213 W (2d) 344, 570 NW (2d) 731 (Ct. App. 1997).
973.013 Annotation
A defendant's argument that his sentence was excessive in relation to other sentences for similar crimes committed in the same county was without merit. There is no requirement that that persons convicted of similar offenses must receive similar sentences. State v. Lechner, 217 W (2d) 392, 576 NW (2d) 912 (1998).
973.013 Annotation
A conviction following an Alford, does not prevent imposing as a condition of probation that the defendant complete a treatment program that requires acknowledging responsibility for the crime which resulted in the conviction. The imposition of the condition does not violate the defendant's due process rights. There is nothing inherent in the plea that gives the defendant any rights as to punishment. State ex rel. Warren v. Schwarz, 219 W (2d) 616, 579 NW (2d) 698 (1998).
973.013 Annotation
A defendant faced with recommendations of a lengthy sentence, in part, because of evidence of the virtue of the victim, in fairness should have been allowed to recommend a lesser sentence, in part, because of the victim's criminal record. State v. Spears, 220 W (2d) 720, 585 NW (2d) 161 (Ct. App. 1998).
