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 (1m) 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 a secured group home, as defined in
s. 938.02 (15p), or from committing violations of
s. 940.20 (2m).
939.635 Annotation
This section does not violate a defendant's right of equal protection. State v. Martin,
191 Wis. 2d 647,
530 N.W.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.
939.641(2)
(2) In case of a felony, 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 by not more than 5 years.
939.641 History
History: 1977 c. 173;
1985 a. 104 s.
2.
939.645
939.645
Penalty; crimes committed against certain people or property. 939.645(1)(1) If a person does all of the following, the penalties for the underlying crime are increased as provided in
sub. (2):
939.645(1)(b)
(b) Intentionally selects the person against whom the crime under
par. (a) is committed or selects the property that is damaged or otherwise affected by the crime under
par. (a) in whole or in part because of the actor's belief or perception regarding the race, religion, color, disability, sexual orientation, national origin or ancestry of that person or the owner or occupant of that property, whether or not the actor's belief or perception was correct.
939.645(2)(a)(a) If the crime committed under
sub. (1) is ordinarily a misdemeanor other than a Class A misdemeanor, the revised maximum fine is $10,000 and the revised maximum period of imprisonment is one year in the county jail.
939.645(2)(b)
(b) If the crime committed under
sub. (1) is ordinarily a Class A misdemeanor, the penalty increase under this section changes the status of the crime to a felony and the revised maximum fine is $10,000 and the revised maximum period of imprisonment is 2 years.
939.645(2)(c)
(c) If the crime committed under
sub. (1) is a felony, the maximum fine prescribed by law for the crime may be increased by not more than $5,000 and the maximum period of imprisonment prescribed by law for the crime may be increased by not more than 5 years.
939.645(3)
(3) 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. (1).
939.645(4)
(4) This section does not apply to any crime if proof of race, religion, color, disability, sexual orientation, national origin or ancestry or proof of any person's perception or belief regarding another's race, religion, color, disability, sexual orientation, national origin or ancestry is required for a conviction for that crime.
939.645 History
History: 1987 a. 348;
1991 a. 291.
939.645 Annotation
Hate Crimes: New Limits on the Scope of the 1st Amendment. Resler. 77 MLR 415 (1993).
939.645 Annotation
Talking about Hate Speech: A Rhetorical Analysis of American and Canadian Regulation of Hate Speech. Moran. 1994 WLR 1425.
939.645 Annotation
Hate Crimes. Kassel. Wis. Law. Oct. 1992.
939.646
939.646
Penalty; crimes committed using information obtained from the sex offender registry. If a person commits a crime using information that was disclosed to him or her under
s. 301.46, the penalties may be increased as follows:
939.646(1)
(1) In case of a misdemeanor, the maximum fine prescribed by law for the crime may be increased by not more than $1,000 and the maximum term of imprisonment prescribed by law for the crime may be increased by not more than 6 months. This subsection does not change the status of the crime from a misdemeanor to a felony.
939.646(2)
(2) In case of a felony, the maximum term of imprisonment prescribed by law for the crime may be increased by not more than 5 years.
939.646 History
History: 1995 a. 440.
939.647
939.647
Increased penalty; violent felony committed against elder person. 939.647(1)(a)
(a) "Elder person" means any individual who is 62 years of age or older.
939.647(2)
(2) If a person commits a violent felony and the victim of the violent felony is an elder person, the maximum period of imprisonment is increased by 5 years.
939.647(3)
(3) Subsection (2) applies even if the person mistakenly believed that the victim had not attained the age of 62 years.
939.647(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).
939.647 History
History: 1997 a. 266.
939.648
939.648
Penalty; terrorism. 939.648(1)(1) In this section, "governmental unit" means the United States; the state; any county, city, village or town; or any political subdivision, department, division, board or agency of the United States, the state or any county, city, village or town.
939.648(2)
(2) If a person does all of the following, the penalties for the underlying felony are increased as provided in
sub. (3):
939.648(2)(b)
(b) Commits the felony under any of the following circumstances:
939.648(2)(b)1.
1. The person causes bodily harm, great bodily harm or death to another.
939.648(2)(b)2.
2. The person causes damage to the property of another and the total property damaged is reduced in value by $25,000 or more. For the purposes of this subdivision, property is reduced in value by the amount that it would cost either to repair or replace it, whichever is less.
939.648(2)(b)3.
3. The person uses force or violence or the threat of force or violence.
939.648(2)(c)
(c) Commits the felony with the intent to influence the policy of a governmental unit or to punish a governmental unit for a prior policy decision.
939.648(3)
(3) The maximum fine prescribed by law for the felony may be increased by not more than $50,000 and the maximum period of imprisonment prescribed by law for the felony may be increased by not more than 10 years.
939.648(4)
(4) This section provides for the enhancement of the penalties applicable for the underlying felony. The court shall direct that the trier of fact find a special verdict as to all of the issues specified in
sub. (2).
939.648(5)(a)(a) In this subsection, "labor dispute" includes any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.
939.648(5)(b)
(b) This section does not apply to conduct arising out of or in connection with a labor dispute.
939.648 History
History: 1993 a. 98.
RIGHTS OF THE PROSECUTION.
939.65
939.65
Prosecution under more than one section permitted. Except as provided in
s. 948.025 (3), if an act forms the basis for a crime punishable under more than one statutory provision, prosecution may proceed under any or all such provisions.
939.65 History
History: 1993 a. 227.
939.65 Annotation
Due process does not require that a person know with certainty which crime, among several, the person is committing, at least until the prosecution exercises its charging discretion. Harris v. State,
78 Wis. 2d 357,
254 N.W.2d 291.
939.66
939.66
Conviction of included crime permitted. Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:
939.66(1)
(1) A crime which does not require proof of any fact in addition to those which must be proved for the crime charged.
939.66(2)
(2) A crime which is a less serious type of criminal homicide than the one charged.
939.66(2m)
(2m) A crime which is a less serious or equally serious type of battery than the one charged.
939.66(2r)
(2r) A crime which is a less serious type of violation under
s. 943.23 than the one charged.
939.66(3)
(3) A crime which is the same as the crime charged except that it requires recklessness or negligence while the crime charged requires a criminal intent.
939.66(4)
(4) An attempt in violation of
s. 939.32 to commit the crime charged.
939.66(4m)
(4m) A crime of failure to timely pay child support under
s. 948.22 (3) when the crime charged is failure to pay child support for more than 120 days under
s. 948.22 (2).
939.66(5)
(5) The crime of attempted battery when the crime charged is sexual assault, sexual assault of a child, robbery, mayhem or aggravated battery or an attempt to commit any of them.
939.66(6c)
(6c) A crime that is a less serious type of violation under
s. 940.285 than the one charged.
939.66(6e)
(6e) A crime that is a less serious type of violation under
s. 940.295 than the one charged.
939.66 Annotation
The controlling principles as to when a lesser included offense charge should be given are discussed. State v. Melvin,
49 Wis. 2d 246,
181 N.W.2d 490.
939.66 Annotation
Attempted battery can only be an included crime as to the specific offenses listed. State v. Melvin,
49 Wis. 2d 246,
181 N.W.2d 490.
939.66 Annotation
A charge of possession of a pistol by a minor is not an included crime in a charge of attempted first degree murder because it includes the element of minority that the greater crime does not. State v. Melvin,
49 Wis. 2d 246,
181 N.W.2d 490.
939.66 Annotation
Disorderly conduct is not a lesser included offense of criminal damage to property. State v. Chacon,
50 Wis. 2d 73,
183 N.W.2d 84.
939.66 Annotation
While attempted aggravated battery is not an included crime of aggravated battery under sub. (1), it is under sub. (4). The reduced charge does not put the defendant in double jeopardy. Dunn v. State,
55 Wis. 2d 192,
197 N.W.2d 749.
939.66 Annotation
Under sub. (1), the emphasis is on the proof, not the pleading, and the "stricken word test" stated in Eastway v. State, 189 W 56, is not incorporated in the statute. Martin v. State,
57 Wis. 2d 499,
204 N.W.2d 499.
939.66 Annotation
Section 947.015, bomb scares, is not an included crime in s. 941.30, recklessly endangering safety. State v. Van Ark,
62 Wis. 2d 155,
215 N.W.2d 41.
939.66 Annotation
Where the evidence overwhelmingly showed that a shooting was intentional, failure to include negligent homicide under ss. 940.06 and 940.08 as lesser included offenses was not error. Hayzes v. State,
64 Wis. 2d 189,
218 N.W.2d 717.
939.66 Annotation
In order to justify the submission of an instruction on a lesser degree of homicide than that with which defendant is charged there must be a reasonable basis in the evidence for acquittal on the greater charge and for conviction on the lesser charge. Harris v. State,
68 Wis. 2d 436,
228 N.W.2d 645.
939.66 Annotation
For one crime to be included in another, it must be utterly impossible to commit the greater crime without committing the lesser. Randolph v. State,
83 Wis. 2d 630,
266 N.W.2d 334 (1978).
939.66 Annotation
The test under sub. (1) concerns legal, statutorily defined elements of the crime, not peculiar facts of case. State v. Verhasselt,
83 Wis. 2d 647,
266 N.W.2d 342 (1978).
939.66 Annotation
The trial court erred in denying the defendant's request for the submission of a verdict of endangering safety by conduct regardless of life as a lesser included offense of attempted murder. Hawthorne v. State,
99 Wis. 2d 673,
299 N.W.2d 866 (1981).
939.66 Annotation
Without clear legislative intent to the contrary, multiple punishment may not be imposed for felony-murder and the underlying felony. State v. Gordon,
111 Wis. 2d 133,
330 N.W.2d 564 (1983).
939.66 Annotation
Where a defendant charged with 2nd degree murder denied firing the fatal shot, a manslaughter instruction was properly denied. State v. Sarabia,
118 Wis. 2d 655,
348 N.W.2d 527 (1984).
939.66 Annotation
Under the "elements only" test, offenses that require proof of nonconsent are not lesser included offenses of offenses where proof of nonconsent is not required. State v. Richards,
123 Wis. 2d 1,
365 N.W.2d 7 (1985).
939.66 Annotation
When police confiscated a large quantity of drugs from an empty home and the next day searched the defendant upon his return home, confiscating a small quantity of the same drugs, the defendant's conviction for a lesser-included offense of possession and a greater offense of possession with intent to deliver did not violate double jeopardy. State v. Stevens,
123 Wis. 2d 303,
367 N.W.2d 788 (1985).
939.66 Annotation
Reckless use of weapons under s. 941.20 (1) (a), 1983 stats., is not lesser included offense of crime of endangering safety by conduct regardless of life while armed under ss. 939.63 (1) (a) 3. and 941.30, 1983 stats. State v. Carrington,
134 Wis. 2d 260,
397 N.W.2d 484 (1986).
