972.11(3m)
(3m) A court may not exclude evidence in any criminal action or traffic forfeiture action for violation of
s. 346.63 (1) or
(5), or a local ordinance in conformity with
s. 346.63 (1) or
(5), on the ground that the evidence existed or was obtained outside of this state.
972.11(4)
(4) Upon the motion of any party or its own motion, a court may order that any exhibit or evidence be delivered to the party or the owner prior to the final determination of the action or proceeding if all of the following requirements are met:
972.11(4)(a)
(a) There is a written stipulation by all the parties agreeing to the order.
972.11(4)(c)
(c) A complete photographic or other record is made of any exhibits or evidence so released.
972.11(5)(a)(a) In this subsection, "deoxyribonucleic acid profile" means an analysis that uses the restriction fragment length polymorphism analysis of deoxyribonucleic acid resulting in the identification of an individual's patterned chemical structure of genetic information.
972.11(5)(b)
(b) In any criminal action or proceeding, the evidence of a deoxyribonucleic acid profile is admissible to prove or disprove the identity of any person if the party seeking to introduce evidence of the profile complies with all of the following:
972.11(5)(b)1.
1. Notifies the other party in writing by mail at least 45 days before the date set for trial, or at any time if a date has not been set for trial, of the intent to introduce the evidence.
972.11(5)(b)2.
2. If the other party so requests at least 30 days before the date set for trial, or at any time if a date has not been set for trial, provides the other party within 15 days after receiving the request with all of the following:
972.11(5)(b)2.d.
d. A statement describing the methodology of measuring fragment size and match criteria.
972.11(5)(b)2.e.
e. A statement setting forth the allele frequency and genotype data for the appropriate database used.
972.11(5)(c)
(c) Notwithstanding
par. (b), the court may grant a continuance regarding the time limit under
par. (b) 2. to allow a party to provide the required information.
972.11 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R7 (1973); Sup. Ct. Order,
67 Wis. 2d 585, 784 (1975);
1975 c. 184,
422;
1979 c. 89;
1981 c. 147 ss.
1,
2;
1983 a. 165,
449;
1985 a. 275;
1987 a. 332 s.
64;
1993 a. 16,
97,
227,
359;
1995 a. 456;
1997 a. 319;
1999 a. 185.
972.11 Annotation
Writing about sexual desires or activities was not itself prior "sexual conduct". The victim's notes expressing sexual desires and fantasies were, therefore, admissible. State v. Vonesh,
135 Wis. 2d 477,
401 N.W.2d 170 (Ct. App. 1986).
972.11 Annotation
Erroneously admitted and false testimony of a victim that she was virgin at the time of a disputed assault so pervasively affected the trial that the issue of consent wasn't fully tried. State v. Penigar,
139 Wis. 2d 569,
408 N.W.2d 28 (1987).
972.11 Annotation
Sub. (2) (b), the rape shield law, bars, with 2 narrow exceptions, evidence of all sexual activity by a complainant not incident to the alleged assault. State v. Gulrud,
140 Wis. 2d 721,
412 N.W.2d 139 (Ct. App. 1987).
972.11 Annotation
This section does not on its face violate the constitutional right to present evidence, but may, in particular circumstances violate that right. To establish the constitutional right to present otherwise excluded evidence, the defendant must make an offer of proof establishing 5 factors and the court must perform a balancing test. State v. Pulizzano,
155 Wis. 2d 633,
456 N.W.2d 325 (1990).
972.11 Annotation
To admit evidence of prior untruthful allegations of sexual assault under sub. (2) (b) 3. the court must be able to conclude from an offer of proof that a reasonable person could infer that the complainant made a prior untruthful allegation; "allegation" is not restricted to allegations reported to police. State v. DeSantis,
155 Wis. 2d 774,
456 N.W.2d 600 (1990).
972.11 Annotation
Summary judgment does not apply to cases brought under the criminal code. State v. Hyndman,
170 Wis. 2d 198,
488 N.W.2d 111 (Ct. App. 1992).
972.11 Annotation
Section 805.03 authorizing sanctions for failure to comply with court orders is applicable to criminal actions. State v. Heyer,
174 Wis. 2d 164,
496 N.W.2d 779 (Ct. App. 1993).
972.11 Annotation
Sub. (2) requires exclusion of testimony of a victim's possible prior sexual conduct although when the alleged victim is an 8-year old child, physical evidence of sexual contact may create an unjust inference that the sexual contact was by sexual assault. In Interest of Michael R.B.
175 Wis. 2d 713,
499 N.W.2d 641 (1993).
972.11 Annotation
That the complaining witness in a sexual assault case had previously consented to sexual intercourse has virtually no probative value regarding whether she consented to sexual intercourse under the use or threat of violence. State v. Neumann,
179 Wis. 2d 687,
508 N.W.2d 54 (Ct. App. 1993).
972.11 Annotation
When the state questioned an alleged rapist about the victim's motive to lie it did not open the door for admission of evidence of prior acts of consensual sex. State v. Jackson,
216 Wis. 2d 646,
575 N.W.2d 475 (1998).
972.11 Annotation
Evidence regarding prior sexual assault by a 3rd party does not fall within one of the statutory exceptions. The Pulizzano test is applied. State v. Dodson,
219 Wis. 2d 65,
580 N.W.2d 181 (1998).
972.12
972.12
Sequestration of jurors. The court may direct that the jurors sworn be kept together or be permitted to separate. The court may appoint an officer of the court to keep the jurors together and to prevent communication between the jurors and others.
972.12 History
History: 1987 a. 73;
1991 a. 39.
972.12 Annotation
Allowing the jury to separate during its deliberations created a rebuttable presumption of prejudice. State v. Halmo,
125 Wis. 2d 369,
371 N.W.2d 424 (Ct. App. 1985).
972.13(1)(1) A judgment of conviction shall be entered upon a verdict of guilty by the jury, a finding of guilty by the court in cases where a jury is waived, or a plea of guilty or no contest.
972.13(2)
(2) Except in cases where
ch. 975 is applicable, upon a judgment of conviction the court shall proceed under
ch. 973. The court may adjourn the case from time to time for the purpose of pronouncing sentence.
972.13(3)
(3) A judgment of conviction shall set forth the plea, the verdict or finding, the adjudication and sentence, and a finding as to the specific number of days for which sentence credit is to be granted under
s. 973.155. If the defendant is acquitted, judgment shall be entered accordingly.
972.13(4)
(4) Judgments shall be in writing and signed by the judge or clerk.
972.13(5)
(5) A copy of the judgment shall constitute authority for the sheriff to execute the sentence.
972.13(6)
(6) The following forms may be used for judgments:
STATE OF WISCONSIN
.... County
In.... Court
The State of Wisconsin
vs.
....(Name of defendant)
UPON ALL THE FILES, RECORDS AND PROCEEDINGS,
IT IS ADJUDGED That the defendant has been convicted upon the defendant's plea of guilty (not guilty and a verdict of guilty) (not guilty and a finding of guilty) (no contest) on the.... day of...., .... (year), of the crime of.... in violation of s.....; and the court having asked the defendant whether the defendant has anything to state why sentence should not be pronounced, and no sufficient grounds to the contrary being shown or appearing to the court.
*IT IS ADJUDGED That the defendant is guilty as convicted.
*IT IS ADJUDGED That the defendant is hereby committed to the Wisconsin state prisons (county jail of.... county) for an indeterminate term of not more than.....
*IT IS ADJUDGED That the defendant is ordered to serve a bifurcated sentence consisting of .... year(s) of confinement in prison and .... months/years of extended supervision.
*IT IS ADJUDGED That the defendant is placed in the intensive sanctions program subject to the limitations of section 973.032 (3) of the Wisconsin Statutes and the following conditions:....
*IT IS ADJUDGED That the defendant is hereby committed to detention in (the defendant's place of residence or place designated by judge) for a term of not more than....
*IT IS ADJUDGED That the defendant is placed on lifetime supervision by the department of corrections under section 939.615 of the Wisconsin Statutes.
*IT IS ADJUDGED That the defendant is ordered to pay a fine of $.... (and the costs of this action).
*IT IS ADJUDGED That the defendant pay restitution to....
*IT IS ADJUDGED That the defendant is restricted in his or her use of computers as follows:....
*The.... at.... is designated as the Reception Center to which the defendant shall be delivered by the sheriff.
*IT IS ORDERED That the clerk deliver a duplicate original of this judgment to the sheriff who shall forthwith execute the same and deliver it to the warden.
Dated this.... day of...., .... (year)
BY THE COURT....
Date of Offense....,
District Attorney....,
Defense Attorney....
*Strike inapplicable paragraphs.
STATE OF WISCONSIN
.... County
In.... Court
The State of Wisconsin
vs.
....(Name of defendant)
On the.... day of...., .... (year), the district attorney appeared for the state and the defendant appeared in person and by.... the defendant's attorney.
UPON ALL THE FILES, RECORDS AND PROCEEDINGS
IT IS ADJUDGED That the defendant has been found not guilty by the verdict of the jury (by the court) and is therefore ordered discharged forthwith.
Dated this.... day of...., .... (year)
BY THE COURT....
972.13(7)
(7) The department shall prescribe and furnish forms to the clerk of each county for use as judgments in cases where a defendant is placed on probation or committed to the custody of the department pursuant to
chs. 967 to
979.
972.13 Annotation
The trial court can on motion or on its own motion modify a criminal sentence if the motion is made within 90 days after sentencing. The first judgment should not be vacated; it should be amended. Hayes v. State,
46 Wis. 2d 93,
175 N.W.2d 625.
972.13 Annotation
A trial court must inform the defendant of the right to appeal. If it does not, the defendant may pursue a late appeal. Peterson v. State,
54 Wis. 2d 370,
195 N.W.2d 837.
972.13 Annotation
The court did not abuse its discretion in revoking probation, reinstating the prior sentences and sentencing on 5 subsequent offenses for a total cumulative sentence of 16 years when the defendant had a long record and interposed a frivolous defense in the later trials. Lange v. State,
54 Wis. 2d 569,
196 N.W.2d 680.
972.13 Annotation
Hayes does not impose a jurisdictional limit on the power of a court to review a sentence. State ex rel. Warren v. County Court,
54 Wis. 2d 613,
197 N.W.2d 1.
972.13 Annotation
Following sentencing the trial court must not only advise the defendant of the right to appeal but also advise the defendant and defense counsel of the obligation of defense counsel to continue representation pending a decision as to appeal and until other counsel is appointed. Whitmore v. State,
56 Wis. 2d 706,
203 N.W.2d 56.
972.13 Annotation
A trial judge has no power to validly sentence with a mental reservation that he might modify the sentence within 90 days if the defendant has profited from imprisonment, and he cannot change an imposed sentence unless new factors are present. State v. Foellmi,
57 Wis. 2d 572,
205 N.W.2d 144.
972.13 Annotation
A claim that the trial court lacked jurisdiction to impose sentence because it failed to enter a judgment of conviction on the jury's verdict was not reviewable because it involved no jurisdictional question, and the construction of the statute was not raised by defendant in his motion for postconviction relief nor did the defendant go back to the trial court for relief as a basis for an appeal. Sass v. State,
63 Wis. 2d 92,
216 N.W.2d 22.
972.13 Annotation
When Whitmore instructions are given, the defendant must show that the failure to move for new trial constituted an unintentional waiver of rights. Thiesen v. State,
86 Wis. 2d 562,
273 N.W.2d 314 (1979).
972.13 Annotation
Judgment entered by a state court during the pendency of removal proceedings in federal court was void. State v. Cegielski,
124 Wis. 2d 13,
368 N.W.2d 628 (1985).
972.13 Annotation
A court's refusal to poll jurors individually was reversible error. State v. Wojtalewicz,
127 Wis. 2d 344,
379 N.W.2d 338 (Ct. App. 1985).
972.13 Annotation
A written judgment of conviction is not a prerequisite to sentencing. State v. Pham,
137 Wis. 2d 31,
403 N.W.2d 35 (1987).
