973.09(1)(a)(a) Except as provided in
par. (c) or if probation is prohibited for a particular offense by statute, if a person is convicted of a crime, the court, by order, may withhold sentence or impose sentence under
s. 973.15 and stay its execution, and in either case place the person on probation to the department for a stated period, stating in the order the reasons therefor. The court may impose any conditions which appear to be reasonable and appropriate. The period of probation may be made consecutive to a sentence on a different charge, whether imposed at the same time or previously. If the court imposes an increased term of probation, as authorized under
sub. (2) (a) 2. or
(b) 2., it shall place its reasons for doing so on the record.
973.09(1)(b)
(b) If the court places the person on probation, the court shall order the person to pay restitution under
s. 973.20, unless the court finds there is substantial reason not to order restitution as a condition of probation. If the court does not require restitution to be paid to a victim, the court shall state its reason on the record. If the court does require restitution, it shall notify the department of justice of its decision if the victim may be eligible for compensation under
ch. 949.
973.09(1)(c)
(c) When a person is convicted of any crime which is punishable by life imprisonment, the court shall not place the person on probation.
973.09(1)(d)
(d) If a person is convicted of an offense that provides a mandatory or presumptive minimum period of one year or less of imprisonment, a court may place the person on probation under
par. (a) if the court requires, as a condition of probation, that the person be confined under
sub. (4) for at least that mandatory or presumptive minimum period. The person is eligible to earn good time credit calculated under
s. 302.43 regarding the period of confinement. This paragraph does not apply if the conviction is for any of the following:
973.09(1)(d)2.
2. A violation under
s. 346.63 (2) or
(6) that subjects the person to a mandatory minimum period of imprisonment under
s. 346.65 (3m), if the person has a total of 3 or fewer convictions, suspensions or revocations counted under
s. 343.307 (2).
973.09(1)(d)3.
3. A violation under
s. 346.63 (5) that subjects the person to a mandatory minimum period of imprisonment under
s. 346.65 (2j) (c), if the person has a total of 3 or fewer convictions, suspensions or revocations counted under
s. 343.307 (2).
973.09(1)(e)
(e) The court may impose a sentence under
s. 973.032, stay its execution and place the person on probation. A court may not provide that a condition of any probation involves participation in the intensive sanctions program.
973.09(1g)
(1g) If the court places the person on probation, the court may require, upon consideration of the factors specified in
s. 973.20 (13) (a) 2. to
5., that the probationer reimburse the county or the state, as applicable, for any costs for legal representation to the county or the state for the defense of the case. In order to receive this reimbursement, the county or the state public defender shall provide a statement of its costs of legal representation to the defendant and court within the time period set by the court.
973.09(1x)(a)(a) If the court places a person on probation, the court may require that the probationer make a contribution to an organization or agency specified in
s. 973.06 (1) (f) 1. if the court determines that the probationer has the financial ability to make the contribution.
973.09(1x)(b)
(b) If the court does require a person to make a contribution to an organization or agency specified in
s. 973.06 (1) (f) 1. but does not require the person to pay any fine that may be imposed for the offense or court costs, the court shall state on the record the reasons why it is not requiring the person to pay the fine or court costs. All contributions made under this subsection shall be made to the clerk of circuit court for distribution to the organization or agency specified in
s. 973.06 (1) (f) 1. The court may not require a person to make a contribution under this subsection to an organization or agency specified in
s. 973.06 (1) (f) 1. that has not complied with the provisions of
s. 757.17.
973.09(2)
(2) The original term of probation shall be:
973.09(2)(a)1.1. Except as provided in
subd. 2., for misdemeanors, not less than 6 months nor more than 2 years.
973.09(2)(a)2.
2. If the probationer is convicted of not less than 2 nor more than 4 misdemeanors at the same time, the maximum original term of probation may be increased by one year. If the probationer is convicted of 5 or more misdemeanors at the same time, the maximum original term of probation may be increased by 2 years.
973.09(2)(b)1.1. Except as provided in
subd. 2., for felonies, not less than one year nor more than either the statutory maximum term of imprisonment for the crime or 3 years, whichever is greater.
973.09(2)(b)2.
2. If the probationer is convicted of 2 or more crimes, including at least one felony, at the same time, the maximum original term of probation may be increased by one year for each felony conviction.
973.09(2m)
(2m) If a court imposes a term of probation in excess of the maximum authorized by statute, the excess is void and the term of probation is valid only to the extent of the maximum term authorized by statute. The term is commuted without further proceedings.
973.09(3)(a)(a) Prior to the expiration of any probation period, the court, for cause and by order, may extend probation for a stated period or modify the terms and conditions thereof.
973.09(3)(b)
(b) The department shall notify the sentencing court, any person to whom unpaid restitution is owed and the district attorney of the status of the ordered restitution payments unpaid at least 90 days before the probation expiration date. If payment as ordered has not been made, the court shall hold a probation review hearing prior to the expiration date, unless the hearing is voluntarily waived by the probationer with the knowledge that waiver may result in an extension of the probation period or in a revocation of probation. If the court does not extend probation, it shall issue a judgment for the unpaid restitution and direct the clerk of circuit court to file and enter the judgment in the judgment and lien docket, without fee, unless it finds that the victim has already recovered a judgment against the probationer for the damages covered by the restitution order. If the court issues a judgment for the unpaid restitution, the court shall send to the person at his or her last-known address written notification that a civil judgment has been issued for the unpaid restitution. The judgment has the same force and effect as judgments entered under
s. 806.10.
973.09(3)(bm)1.1. At least 90 days before the expiration date of a probationer's period of probation, the department may notify the sentencing court and the district attorney that a probationer owes unpaid fees to the department under
s. 304.073 or
304.074.
973.09(3)(bm)2.
2. Upon receiving notice from the department under
subd. 1., the court shall schedule a probation review hearing to be held before the expiration date of the period of probation unless the probationer either pays the fees before the scheduled hearing date or voluntarily waives the hearing. A waiver of a probation review hearing under this subdivision shall include an acknowledgement by the probationer that waiver may result in an extension of the probation period, a modification of the terms and conditions of probation or a revocation of probation.
973.09(3)(bm)3.
3. At a probation review hearing under
subd. 2., the department has the burden of proving that the probationer owes unpaid fees under
s. 304.073 or
304.074 and the amount of the unpaid fees. If the department proves by a preponderance of the evidence that the probationer owes unpaid fees under
s. 304.073 or
304.074, the court may, by order, extend the period of probation for a stated period or modify the terms and conditions of probation.
973.09(3)(bm)4.
4. If the court does not extend or modify the terms of probation under
subd. 3., it shall issue a judgment for the unpaid fees and direct the clerk of circuit court to file and enter the judgment in the judgment and lien docket, without fee. If the court issues a judgment for the unpaid fees, the court shall send to the department a written notification that a civil judgment has been issued for the unpaid fees. The judgment has the same force and effect as judgments entered under
s. 806.10.
973.09(3)(c)
(c) Any of the following may constitute cause for the extension of probation:
973.09(3)(c)1.
1. The probationer has not made a good faith effort to discharge court-ordered payment obligations or to pay fees owed under
s. 304.073 or
304.074.
973.09(3)(c)2.
2. The probationer is not presently able to make required restitution payments and the probationer and the person to whom restitution is owed consent to the performance of community service work under
sub. (7m) in satisfaction of restitution ordered for that person, for which an extended period of probation is required.
973.09(3)(c)3.
3. The probationer stipulates to the extension of supervision and the court finds that extension would serve the purposes for which probation was imposed.
973.09(4)
(4) The court may also require as a condition of probation that the probationer be confined during such period of the term of probation as the court prescribes, but not to exceed one year. The court may grant the privilege of leaving the county jail, Huber facility, work camp or tribal jail during the hours or periods of employment or other activity under
s. 303.08 (1) (a) to
(e) while confined under this subsection. The court may specify the necessary and reasonable hours or periods during which the probationer may leave the jail, Huber facility, work camp or tribal jail or the court may delegate that authority to the sheriff. In those counties without a Huber facility under
s. 303.09, a work camp under
s. 303.10 or an agreement under
s. 302.445, the probationer shall be confined in the county jail. In those counties with a Huber facility under
s. 303.09, the sheriff shall determine whether confinement under this subsection is to be in that facility or in the county jail. In those counties with a work camp under
s. 303.10, the sheriff shall determine whether confinement is to be in the work camp or the county jail. The sheriff may transfer persons confined under this subsection between a Huber facility or a work camp and the county jail. In those counties with an agreement under
s. 302.445, the sheriff shall determine whether confinement under this subsection is to be in the tribal jail or the county jail, unless otherwise provided under the agreement. In those counties, the sheriff may transfer persons confined under this subsection between a tribal jail and a county jail, unless otherwise provided under the agreement. While subject to this subsection, the probationer is subject to
s. 303.08 (1),
(3) to
(6),
(8) to
(12) and
(14) or to
s. 303.10, whichever is applicable, and to all the rules of the county jail, Huber facility, work camp or tribal jail and the discipline of the sheriff.
973.09(5)
(5) When the period of probation for a probationer has expired, the probationer shall be discharged from probation and the department shall do all of the following:
973.09(5)(a)
(a) If the probationer was placed on probation for a felony, issue the probationer one of the following:
973.09(5)(a)1.
1. A certificate of discharge from probation for the felony for which he or she was placed on probation if, at the time of discharge, the probationer is on probation or parole for another felony.
973.09(5)(a)2.
2. A certificate of final discharge if, at the time of discharge, the probationer is not on probation or parole for another felony. A certificate of final discharge under this subdivision shall list the civil rights which have been restored to the probationer and the civil rights which have not been restored to the probationer.
973.09(5)(b)
(b) If the probationer was placed on probation for a misdemeanor, notify the probationer that his or her period of probation has expired.
973.09(5)(c)
(c) In all cases, notify the court that placed the probationer on probation that the period of probation has expired.
973.09(7m)(a)(a) Except as provided in
s. 943.017 (3), the court may require as a condition of probation that the probationer 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 probationer and the organization or agency. The court shall ensure that the probationer is provided a written statement of the terms of the community service order and that the community service order is monitored. If the court requires the conditions provided in this subsection and
sub. (4), the probationer reduces the period of confinement under
sub. (4) at a rate of one day for each 3 days of work performed. A day of work equals 8 hours of work performed.
973.09(7m)(b)
(b) Any organization or agency acting in good faith to which a probationer 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 probationer.
973.09 History
History: 1971 c. 298;
1979 c. 119,
189,
238,
355,
356;
1981 c. 50,
88,
326,
352,
391;
1983 a. 27,
104,
254,
346,
519,
538;
1985 a. 150;
1987 a. 347,
398,
403,
412;
1989 a. 31,
121,
188;
1991 a. 39;
1993 a. 48,
486;
1995 a. 24,
224,
281;
1997 a. 27,
41,
289;
1999 a. 9,
58,
69,
186.
973.09 Note
Judicial Council Note, 1981: A cross-reference to s. 973.15 has been inserted to clarify that the provisions of that statute govern the imposition of sentence even though the court stays execution of the sentence under this statute. [Bill 341-A]
973.09 Note
Judicial Council Note, 1987: Sub. (1g) is amended to require the court to consider the defendant's ability to pay when ordering reimbursement of the costs of legal representation.
973.09 Annotation
Sub. (3) (c) specifies grounds for extending probation. The availability of a civil judgment for unpaid restitution enforceable by the victim under s. 973.20 (1), stats., substantially reduces the necessity of extending probation solely for the purpose of enforcing court-ordered payments, a practice of questionable cost-effectiveness. See legislative audit bureau report No. 85-10, April 15, 1985, at 17-18. Probation may, however, be extended upon stipulation of the defendant, to enforce community service in satisfaction of restitution, or when the probationer has not made a good faith effort to make restitution or other payments. Huggett v. State,
83 Wis. 2d 790, 803 (1978). [87 Act 398]
973.09 Annotation
The terminology of work-release under sub. (4) and Huber law privileges under 56.08, 1985 stats., [now 303.08] cannot be used interchangeably without the danger of an inappropriate sentence. Yingling v. State,
73 Wis. 2d 438,
243 N.W.2d 420.
973.09 Annotation
Claims of credit for pretrial or preconviction incarceration may be made only as to sentences imposed, and not to periods of confinement during nonworking hours imposed as a condition of probation under sub. (4). Full confinement for one year as a condition of probation is not authorized under sub. (4). State v. Gloudemans,
73 Wis. 2d 514,
243 N.W.2d 220.
973.09 Annotation
A probation condition that the probationer not contact her codefendant fiance was a permissible infringement of her constitutional rights because the condition was reasonably related to rehabilitation and was not overly broad. Edwards v. State,
74 Wis. 2d 79,
246 N.W.2d 109.
973.09 Annotation
Failure to make restitution is not cause for extending probation under sub. (3) if the probationer demonstrates good faith effort to pay but lacks capacity to pay during probation. Huggett v. State,
83 Wis. 2d 790,
266 N.W.2d 403 (1978).
973.09 Annotation
An order to pay restitution, in an amount to be determined later, authorized collection of funds from the defendant. Thieme v. State,
96 Wis. 2d 98,
291 N.W.2d 474 (1980).
973.09 Annotation
Remand for resentencing was the proper procedure when the trial court improperly imposed a period of probation to run concurrently with a period of parole. State v. Givens,
102 Wis. 2d 476,
307 N.W.2d 178 (1981).
973.09 Annotation
Issuance of a warrant during a probationary term tolls the running of the term. State ex rel. Cox v. H&SS Dept.
105 Wis. 2d 378,
314 N.W.2d 148 (Ct. App. 1981).
973.09 Annotation
In setting restitution, the court must consider the probationer's resources and future ability to pay. State v. Pope,
107 Wis. 2d 726,
321 N.W.2d 359 (Ct. App. 1982).
973.09 Annotation
There was a denial of due process in revoking probation without notice of the total extent and nature of the alleged violations of probation. State ex rel. Thompson v. Riveland,
109 Wis. 2d 580,
326 N.W.2d 768 (1982).
973.09 Annotation
Reimposition of a sentence after a defendant has been placed on probation, absent violation of a probation condition, violated the double jeopardy clause. State v. Dean,
111 Wis. 2d 361,
330 N.W.2d 630 (Ct. App. 1983).
973.09 Annotation
The court erred in imposing consecutive terms of probation. Increased punishment on resentencing did not violate double jeopardy clause. State v. Pierce,
117 Wis. 2d 83,
342 N.W.2d 776 (Ct. App. 1983). See also State v. Gereaux,
114 Wis. 2d 110,
338 N.W.2d 118 (Ct. App. 1983).
973.09 Annotation
When probation was conditioned on the defendant's voluntary commitment to a mental hospital, but the hospital refused admittance, the court properly modified the original sentence by imposing a new sentence of 3 years imprisonment. Double jeopardy was not violated. State v. Sepulveda,
120 Wis. 2d 231,
353 N.W.2d 790 (1984).
973.09 Annotation
A court may not assess the cost of a special prosecutor as a condition of probation. State v. Amato,
126 Wis. 2d 212,
376 N.W.2d 75 (Ct. App. 1985).
973.09 Annotation
A court may order a defendant to reimburse the police for funds used for drug purchase that resulted in the conviction. State v. Connelly,
143 Wis. 2d 500,
421 N.W.2d 859 (Ct. App. 1988).
973.09 Annotation
A lack of counsel at a probation revocation hearing did not deny the probationer's constitutional rights. State v. Hardwick,
144 Wis. 2d 54,
422 N.W.2d 922 (Ct. App. 1988.)
973.09 Annotation
Sub. (1) (b) does not restrict a court's authority to condition probation on any reasonable and appropriate requirement under sub. (1) (a). State v. Heyn,
155 Wis. 2d 621,
456 N.W.2d 157 (1990).
973.09 Annotation
Sub. (3) (a) authorizes a court to modify all conditions of probation established for a specific probationer, including those imposed by the corrections department. State ex rel. Taylor v. Linse,
161 Wis. 2d 719,
469 N.W.2d 201 (Ct. App. 1991).
973.09 Annotation
A plea agreement to amend a judgment of conviction upon successful completion of probation is not authorized by statute. State v. Hayes,
167 Wis. 2d 423,
481 N.W.2d 699 (Ct. App. 1992).
973.09 Annotation
The due process rights of a probationer at a hearing to modify probation are enumerated. State v. Hayes,
173 Wis. 2d 439,
496 N.W.2d 645 (Ct. App. 1992).
973.09 Annotation
Requiring a convicted defendant to deposit money for possible future counselling costs of victims was impermissible. State v. Handley,
173 Wis. 2d 838,
496 N.W.2d 725 (Ct. App. 1993).
973.09 Annotation
Requiring a defendant convicted of sexual assault to pay a victim's costs of tuition to attend another school to avoid harassment that arose after the assault was a reasonable condition of probation. State v. Brown,
174 Wis. 2d 550,
497 N.W.2d 463 (Ct. App. 1993).
973.09 Annotation
A condition of probation not related to the underlying conviction but related to prior convictions was reasonable and appropriate. State v. Miller,
175 Wis. 2d 204, N.W.2d (Ct. App. 1993).
973.09 Annotation
The notification provisions of sub. (3) apply only in the case of probation extension proceedings, not revocations. Bartus v. DHSS,
176 Wis. 2d 1063,
501 N.W.2d 419 (1993).
973.09 Annotation
Sub. (2) (a) applies to probation for misdemeanors and sub. (2) (b) to felonies; sub. (2) (b) 2. does not authorize increasing probation for a misdemeanor if the defendant is convicted of a felony at the same time. State v. Reagles,
177 Wis. 2d 168,
501 N.W.2d 861 (Ct. App. 1993).
973.09 Annotation
A forced confession as a condition of probation does not violate the right against self-incrimination; the constitution protects against the use of confessions in subsequent criminal prosecutions, but does not protect against the use of such statements in a revocation proceeding. State v. Carrizales,
191 Wis. 2d 85,
528 N.W.2d 29 (Ct. App. 1995).
973.09 Annotation
While periods of time served due to an indigent's inability to post bail prior to trial must be credited as time served on a prison sentence imposed, a court need not credit that time against probationary confinement. State v. Avila,
192 Wis. 2d 870,
532 N.W.2d 423 (Ct. App. 1995).
973.09 Annotation
A jail term probationer eligible for good time credit under sub. (1) (d) may not be denied the possibility of earning good time as a sentence condition. State v. McClinton,
195 Wis. 2d 344,
536 N.W.2d 413 (Ct. App. 1995).
973.09 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).
973.09 Annotation
A court was authorized to order that a defendant pay the cost of DNA testing by a private laboratory as a condition of probation. State v. Beiersdorf,
208 Wis. 2d 492,
561 N.W.2d 749 (Ct. App. 1997).
973.09 Annotation
A condition of probation placed on a sex offender that he not engage in a sexual relationship without first discussing it with his agent and obtaining his agent's approval did not unreasonably restrict the probationer's constitutional rights of privacy. Krebs v. Schwartz,
212 Wis. 2d 127,
568 N.W.2d 26 (Ct. App. 1997).
973.09 Annotation
An unfulfilled condition of probation does not automatically extend the probation period; an extension must be obtained. If the probation has not been stayed and the probation period has been served, the probationer is entitled to discharge even in the face of an unfulfilled condition of probation; at that point the trial court loses jurisdiction. State v. Stefanovic,
215 Wis. 2d 309,
572 N.W.2d 140 (Ct. App. 1997).
973.09 Annotation
A conviction following an Alford plea of no contest under which the defendant does not admit guilt, does not prevent imposing as a condition of probation that the defendant complete a treatment program that requires acknowledging responsibility for the crime that resulted in the conviction. The imposition of the condition does not violate the defendant's due process rights. State ex rel. Warren v. Schwarz,
219 Wis. 2d 616,
579 N.W.2d 698 (1998).
973.09 Annotation
When a court orders probation under sub. (1) (d), it lacks authority to order monitored home detention in lieu of confinement under sub. (4). State v. Eastman,
220 Wis. 2d 330,
582 N.W.2d 749 (Ct. App. 1998).
973.09 Annotation
The 90-day notice requirement in sub. (3) (b) is directory, not mandatory. The extension of probation for the sole purpose of collecting a debt, when the record contained substantial reasons not to extend, was an abuse of discretion. State v. Olson,
222 Wis. 2d 283,
588 N.W.2d 256 (Ct. App. 1998).
973.09 Annotation
Sub. (3) (a) allows circuit courts to modify conditions of probation at any time before the period of probation expires, even before the period of probation begins. State v. Gray,
225 Wis. 2d 39, 590 N.W. 2d918 (1999).
973.09 Annotation
The court has broad discretion to fashion appropriate conditions of probation in each individual case. The validity of conditions of probation are tested by how well they serve the goals of rehabilitation and protection of the public. State v. Simonetto, 2000 WI App 17,
232 Wis. 2d 315,
606 N.W.2d 275.
973.09 Annotation
A probationer has the right to refuse probation not only when it is first granted but at any time while serving it. State v. McCready, 2000 WI App 68,
234 Wis. 2d 110,
608 N.W.2d 762.
973.09 Annotation
Sub. (2) applies to all sentences pronounced at the same time, whether grouped together, because they are related or because of convenience. U.S. v. Stalbaum,
63 F.3d 537 (1995).
973.10
973.10
Control and supervision of probationers. 973.10(1)(1) Imposition of probation shall have the effect of placing the defendant in the custody of the department and shall subject the defendant to the control of the department under conditions set by the court and rules and regulations established by the department for the supervision of probationers, parolees and persons on extended supervision.
973.10(1m)(a)(a) The department may order that a probationer perform community service work for a public agency or a nonprofit charitable organization. An order may apply only if agreed to by the probationer and the organization or agency. The department shall ensure that the probationer is provided a written statement of the terms of the community service order and shall monitor the probationer's compliance with the community service order. Compliance with this subsection does not entitle a probationer to credit under
s. 973.155.
973.10(1m)(b)
(b) Any organization or agency acting in good faith to which a probationer is assigned under 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 probationer. The department has immunity from any civil liability for acts or omissions by or impacting on the probationer regarding the assignment under this subsection.
