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).
973.013 Annotation
In fixing sentence within statutory limits, judge may consider defendant's false testimony observed by judge during trial. United States v. Grayson, 438 US 41 (1978).
973.013 Annotation
Appellate sentence review. 1976 WLR 655. (1983).
973.0135
973.0135
Sentence for certain serious felonies; parole eligibility determination. 973.0135(1)(a)
(a) "Prior offender" means a person who meets all of the following conditions:
973.0135(1)(a)1.
1. The person has been convicted of a serious felony on at least one separate occasion at any time preceding the serious felony for which he or she is being sentenced.
973.0135(1)(a)2.
2. The person's conviction under
subd. 1. remains of record and unreversed.
973.0135(1)(a)3.
3. As a result of the conviction under
subd. 1., the person was sentenced to more than one year of imprisonment.
973.0135(1)(b)2.
2. Any felony under
s. 940.01,
940.02,
940.03,
940.05,
940.09 (1),
940.16,
940.19 (5),
940.195 (5),
940.21,
940.225 (1) or
(2),
940.305,
940.31,
941.327 (2) (b) 4.,
943.02,
943.10 (2),
943.23 (1g),
(1m) or
(1r),
943.32 (2),
946.43,
948.02 (1) or
(2),
948.025,
948.03 (2) (a) or
(c),
948.05,
948.06,
948.07,
948.08,
948.30 (2),
948.35 (1) (b) or
(c) or
948.36.
973.0135 Note
NOTE: Subd. 2. is shown as affected by two acts of the 1997 legislature and as merged by the revisor under s. 13.93 (2) (c).
973.0135(1)(b)4.
4. A crime at any time under federal law or the law of any other state or, prior to April 21, 1994, under the law of this state that is comparable to a crime specified in
subd. 1.,
2. or
3.
973.0135(2)
(2) Except as provided in
sub. (3), when a court sentences a prior offender to imprisonment in a state prison for a serious felony committed on or after April 21, 1994, but before December 31, 1999, the court shall make a parole eligibility determination regarding the person and choose one of the following options:
973.0135(2)(b)
(b) The person is eligible for parole on a date set by the court. Under this paragraph, the court may not set a date that occurs before the earliest possible parole eligibility date as calculated under
s. 304.06 (1) and may not set a date that occurs later than two-thirds of the sentence imposed for the felony.
973.0135(3)
(3) A person is not subject to this section if the current serious felony is punishable by life imprisonment.
973.0135(4)
(4) If a prior conviction is being considered as being covered under
sub. (1) (b) 4. as comparable to a felony specified under
sub. (1) (b) 1.,
2. or
3., the conviction may be counted as a prior conviction under
sub. (1) (a) only if the court determines, beyond a reasonable doubt, that the violation relating to that conviction would constitute a felony specified under
sub. (1) (b) 1.,
2. or
3. if committed by an adult in this state.
973.0135 History
History: 1993 a. 194,
483;
1995 a. 448;
1997 a. 219,
283,
295; s. 13.93 (2) (c).
973.014
973.014
Sentence of life imprisonment; parole eligibility determination; extended supervision eligibility determination. 973.014(1)(1) Except as provided in
sub. (2), when a court sentences a person to life imprisonment for a crime committed on or after July 1, 1988, but before December 31, 1999, the court shall make a parole eligibility determination regarding the person and choose one of the following options:
973.014(1)(b)
(b) The person is eligible for parole on a date set by the court. Under this paragraph, the court may set any later date than that provided in
s. 304.06 (1), but may not set a date that occurs before the earliest possible parole eligibility date as calculated under
s. 304.06 (1).
973.014(1)(c)
(c) The person is not eligible for parole. This paragraph applies only if the court sentences a person for a crime committed on or after August 31, 1995, but before December 31, 1999.
973.014(1g)(a)(a) Except as provided in
sub. (2), when a court sentences a person to life imprisonment for a crime committed on or after December 31, 1999, the court shall make an extended supervision eligibility date determination regarding the person and choose one of the following options:
973.014(1g)(a)1.
1. The person is eligible for release to extended supervision after serving 20 years.
973.014(1g)(a)2.
2. The person is eligible for release to extended supervision on a date set by the court. Under this subdivision, the court may set any later date than that provided in
subd. 1., but may not set a date that occurs before the earliest possible date under
subd. 1.
973.014(1g)(a)3.
3. The person is not eligible for release to extended supervision.
973.014(1g)(b)
(b) When sentencing a person to life imprisonment under
par. (a), the court shall inform the person of the provisions of
s. 302.114 (3) and the procedure for petitioning under
s. 302.114 (5) for release to extended supervision.
973.014(1g)(c)
(c) A person sentenced to life imprisonment under
par. (a) is not eligible for release on parole.
973.014(2)
(2) When a court sentences a person to life imprisonment under
s. 939.62 (2m) (c), the court shall provide that the sentence is without the possibility of parole or extended supervision.
973.014 Note
NOTE: Sub. (2) is shown as affected by two acts of the 1997 legislature and as merged by the revisor under s. 13.93 (2) (c).
973.014 Annotation
Constitutionality of 973.014 upheld. State v. Borrell, 167 W (2d) 749, 482 NW (2d) 883 (1992).
973.014 Annotation
Denial of presentence confinement credit under sub. (2) was constitutional. State v. Chapman, 175 W (2d) 231, 499 NW (2d) 223 (Ct. App. 1993).
973.014 Annotation
Sub. (1) (b) allows a circuit court to impose a parole eligibility date beyond a defendant's expected lifetime. State v. Setagord, 211 W (2d) 397, 565 NW (2d) 506 (1997).
973.014 Annotation
A trial court sentencing a defendant under sub. (1) (b), exercising its discretion, may or may not give credit for presentence incarceration. State v. Seeley, 212 W (2d) 75, 567 NW (2d) 897 (Ct. App. 1997).
973.015
973.015
Misdemeanors, special disposition. 973.015(1)
(1) When a person is under the age of 21 at the time of the commission of an offense for which the person has been found guilty in a court for violation of a law for which the maximum penalty is imprisonment for one year or less in the county jail, the court may order at the time of sentencing that the record be expunged upon successful completion of the sentence if the court determines the person will benefit and society will not be harmed by this disposition.
973.015(2)
(2) A person has successfully completed the sentence if the person has not been convicted of a subsequent offense and, if on probation, the probation has not been revoked and the probationer has satisfied the conditions of probation. Upon successful completion of the sentence the detaining or probationary authority shall issue a certificate of discharge which shall be forwarded to the court of record and which shall have the effect of expunging the record.
973.015 Annotation
Forfeitures may not be expunged under (1). State v. Michaels, 142 W (2d) 172, 417 NW (2d) 415 (Ct. App. 1987).
973.015 Annotation
Expunged conviction is not admissible to attack witness credibility. State v. Anderson, 160 W (2d) 435, 466 NW (2d) 681 (Ct. App. 1991).
973.015 Annotation
"Expunge" under this section means to strike or obliterate from the record all references to defendant's name and identity. 67 Atty. Gen. 301.
973.015 Annotation
Circuit courts do not possess inherent powers to expunge or destroy conviction records. 70 Atty. Gen. 115.
973.02
973.02
Place of imprisonment when none expressed. Except as provided in
s. 973.032, if a statute authorizes imprisonment for its violation but does not prescribe the place of imprisonment, a sentence of less than one year shall be to the county jail, a sentence of more than one year shall be to the Wisconsin state prisons and the minimum under the indeterminate sentence law shall be one year, and a sentence of one year may be to either the Wisconsin state prisons or the county jail. In any proper case, sentence and commitment may be to the department or any house of correction or other institution as provided by law or to detention under
s. 973.03 (4).
973.02 Annotation
See note to 939.60, citing State ex rel. McDonald v. Douglas Cty. Cir. Ct. 100 W (2d) 569, 302 NW (2d) 462 (1981).
973.02 Annotation
Criminal defendant who receives consecutive sentences that in aggregate exceed one year, but individually are all less than one year, should be incarcerated in county jail rather than Wisconsin prison system.
78 Atty. Gen. 44.
973.03(1)(1) If at the time of passing sentence upon a defendant who is to be imprisoned in a county jail there is no jail in the county suitable for the defendant and no cooperative agreement under
s. 302.44, the court may sentence the defendant to any suitable county jail in the state. The expenses of supporting the defendant there shall be borne by the county in which the crime was committed.
973.03(2)
(2) A defendant sentenced to the Wisconsin state prisons and to a county jail or house of correction for separate crimes shall serve all sentences whether concurrent or consecutive in the state prisons.
973.03(3)(a)(a) If a court sentences a defendant to imprisonment in the county jail, the court may provide that the defendant perform community service work under
pars. (b) and
(c). The defendant earns good time at a rate of one day for each 3 days of work performed. A day of work equals 8 hours of work performed. This good time is in addition to good time authorized under
s. 302.43.
973.03(3)(b)
(b) The court may require that the defendant perform community service work for a public agency or a nonprofit charitable organization. The number of hours of work required may not exceed what would be reasonable considering the seriousness of the offense and any other offense which is read into the record at the time of conviction. An order may only apply if agreed to by the defendant and the organization or agency. 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.
973.03(3)(c)
(c) Any organization or agency acting in good faith to which a defendant is assigned pursuant to an order under this subsection has immunity from any civil liability in excess of $25,000 for acts or omissions by or impacting on the defendant.
973.03(3)(d)
(d) This subsection applies to persons who are sentenced to a county jail but are transferred to a Huber facility under
s. 303.09, to a county work camp under
s. 303.10 or to a tribal jail under
s. 302.445.
973.03(3)(e)
(e) A court may not provide that a defendant perform community service work under this subsection if the defendant is being sentenced regarding any of the following:
