973.013 Annotation
Increasing a sentence sentence following the vacation of plea bargained no contest pea did not violate due process. The test for judicial vindictiveness is discussed. State v. Stubbendick,
110 Wis. 2d 693,
329 N.W.2d 399 (1983).
973.013 Annotation
A reduction in the maximum statutory penalty for an offense is not a "new factor" justifying a postconviction motion to modify the sentence. State v. Hegwood,
113 Wis. 2d 544,
335 N.W.2d 399 (1983).
973.013 Annotation
An 80-year sentence for a first-time sexual offender was not an abuse of discretion. State v. Curbello-Rodriguez,
119 Wis. 2d 414,
351 N.W.2d 758 (Ct. App. 1984).
973.013 Annotation
An unambiguous sentence pronounced orally and recorded in the sentencing transcript controls over the written judgment of conviction. State v. Perry,
136 Wis. 2d 92,
401 N.W.2d 748 (1987).
973.013 Annotation
The sentencing court does not abuse its discretion in considering a victim's statements and recommendations. State v. Johnson,
158 Wis. 2d 458,
463 N.W.2d 352 (Ct. App. 1990).
973.013 Annotation
The primary factors to be considered in exercising discretion in sentencing are gravity of offense, rehabilitative needs of defendant and protection of public. State v. Paske,
163 Wis. 2d 52,
471 N.W.2d 55 (1991).
973.013 Annotation
Due process does not require the presence of counsel at a presentence investigation interview of the defendant. State v. Perez,
170 Wis. 2d 130,
487 N.W.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 Wis. 2d 257,
493 N.W.2d 729 (Ct. App. 1992).
973.013 Annotation
The trial court's possible consideration at sentencing of the defendant's culpability in a more serious offense although the jury convicted on a lesser included offense was not error. State v. Marhal,
172 Wis. 2d 491,
493 N.W.2d 758 (Ct. App. 1992). See also State v. Bobbitt,
178 Wis. 2d 11,
503 N.W.2d 11 (Ct. App. 1993).
973.013 Annotation
No specific burden of proof is imposed as to read-in offenses that bear upon sentencing; all sentencing is under the standard for judicial discretion. State v. Hubert,
181 Wis. 2d 333,
510 N.W.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 Wis. 2d 903,
512 N.W.2d 243 (Ct. App. 1994).
973.013 Annotation
If 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 Wis. 2d 358,
521 N.W.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 Wis. 2d 339,
523 N.W.2d 124 (Ct. App. 1994).
973.013 Annotation
A trial court in exercising sentencing discretion is not prohibited from entertaining general predispositions based on experience, but the judge's predispositions may never be so specific as to ignore the particular circumstances of the individual offender. State v. Ogden,
199 Wis. 2d 566,
544 N.W.2d 574 (1996).
973.013 Annotation
A defendant who requests resentencing must show specific information was inaccurate and that the court relied on it. When facts stated in a presentence report are not challenged at sentencing, the sentencing judge may appropriately consider them. State v. Mosley,
201 Wis. 2d 36,
547 N.W.2d 806 (Ct. App. 1996).
973.013 Annotation
A court must consider 3 primary factors in exercising discretion in sentencing: (1) the gravity of the offense; (2) the character of the offender; and (3) the need to protect the public. Remorse is an additional factor that may be considered. State v. Rodgers,
203 Wis. 2d 83,
552 N.W.2d 123 (Ct. App. 1996). For enumeration of other additional factors that may be considered, see, State v. Barnes,
203 Wis. 2d 132,
552 N.W.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 Wis. 2d 259,
558 N.W.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 Wis. 2d 142,
560 N.W.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 Wis. 2d 509,
561 N.W.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 Wis. 2d 1,
563 N.W.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 Wis. 2d 197,
565 N.W.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 consider whether the crime is an isolated act or part of a pattern of conduct. State v. Fisher,
211 Wis. 2d 664,
565 N.W.2d 565 (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 persons convicted of similar offenses must receive similar sentences. State v. Lechner,
217 Wis. 2d 392,
576 N.W.2d 912 (1998).
973.013 Annotation
That a conviction followed an Alford plea did not prevent requiring the defendant, as a condition, to complete a treatment program that required acknowledging responsibility for the crime which resulted in the conviction. The imposition of the condition did not violate the defendant's due process rights. There is nothing inherent in an Alford plea that gives a defendant any rights as to punishment. State ex rel. Warren v. Schwarz,
219 Wis. 2d 616,
579 N.W.2d 698 (1998).
973.013 Annotation
When a victim's criminal record supports a defendant's version of a crime, the gravity of which crime is a sentencing factor, the criminal record should be admitted as evidence at the defendant's sentencing hearing. State v. Spears,
227 Wis. 2d 495,
596 N.W.2d 375 (1999).
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 U.S. 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 (1m),
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(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.
973.014
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 Annotation
The denial of presentence confinement credit when parole was established under sub. (2), 1991stats., [now (1) (b)] was constitutional. State v. Chapman,
175 Wis. 2d 231,
499 N.W.2d 223 (Ct. App. 1993).
973.014 Annotation
Sub. (1) (b) allowed a circuit court to impose a parole eligibility date beyond a defendant's expected lifetime. State v. Setagord,
211 Wis. 2d 397,
565 N.W.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 Wis. 2d 75,
567 N.W.2d 897 (Ct. App. 1997).
973.014 Annotation
Parole eligibility is not a statutorily or constitutionally necessary component of a valid plea colloquy in a case in which a life sentence is imposed. State v. Byrge,
225 Wis. 2d 702,
594 N.W.2d 388 (Ct. App. 1999).
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
An expunged conviction is not admissible to attack a witness's credibility. State v. Anderson,
160 Wis. 2d 435,
466 N.W.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
The legislature is presumed to have been aware of many existing statutes carrying sentences of one year or less with no place of confinement specified when it enacted the predecessor to s. 973.02 as
chapter 154, laws of 1945. State ex rel. McDonald v. Douglas Cty. Cir. Ct.
100 Wis. 2d 569,
302 N.W.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:
973.03(4)(a)(a) In lieu of a sentence of imprisonment to the county jail, a court may impose a sentence of detention at the defendant's place of residence or other place designated by the court. The length of detention may not exceed the maximum possible period of imprisonment. The detention shall be monitored by the use of an electronic device worn continuously on the defendant's person and capable of providing positive identification of the wearer at the detention location at any time. A sentence of detention in lieu of jail confinement may be imposed only if agreed to by the defendant. The court shall ensure that the defendant is provided a written statement of the terms of the sentence of detention, including a description of the detention monitoring procedures and requirements and of any applicable liability issues. The terms of the sentence of detention may include a requirement that the defendant pay a daily fee to cover the costs associated with monitoring him or her. In that case, the terms must specify to whom the payments are made.
