973.10 Annotation
A probation officer may conduct a warrantless search. That the underlying conviction is subsequently overturned does not retroactively invalidate a warrantless search by the probation officer. State v. Angiolo,
207 Wis. 2d 559,
558 N.W.2d 701 (Ct. App. 1996).
973.10 Annotation
A probationer has a right to a competency determination when during a revocation proceeding the administrative law judge has reason to doubt the probationer's competence. The determination shall be made by the circuit court in the county of sentencing, which shall adhere to ss. 971.13 and 971.14 to the extent practicable. State ex rel. Vanderbeke v. Endicott,
210 N.W.2d 503,
563 N.W.2d 883 (1997).
973.10 Annotation
Because an administrative decision may be reviewed upon a timely petition for certiorari, an adequate remedy exists at law to correct defects and relief under habeas corpus will not be granted. State ex rel. Reddin v. Galster,
215 Wis. 2d 178,
572 N.W.2d 505 (Ct. App. 1998).
973.10 Annotation
A certiorari proceeding to review a probation revocation must be heard in the circuit court of conviction, but it need not be by the same branch. Drow v. Schwarz,
225 Wis. 2d 362,
592 N.W.2d 623 (1999).
973.10 Annotation
Sub (2) is constitutional. Probation and probation revocation are within the powers shared by the branches of government. Legislative delegation of revocation to the executive branch does not unduly burden or substantially interfere with the judiciary's constitutional function to impose criminal penalties. State v. Horn,
226 Wis. 2d 637,
594 N.W.2d 772 (1999).
973.10 Annotation
Sub. (2) prohibits judicial revocation of probation by the trial courts. State v. Burchfield,
230 Wis. 2d 348,
602 N.W.2d 154 (Ct. App. 1999).
973.10 Annotation
When probationer or parolee is charged with a crime and may have otherwise violated conditions of release, revocation hearings based on the non-criminal violations should be held without delay. 65 Atty. Gen. 20.
973.10 Annotation
State may require probation officers, among other "peace officers", to be U.S. citizens. Cabel v. Chavez-Solido,
454 U.S. 432 (1982).
973.10 Annotation
Revocation of probation without a hearing is a denial of due process. Hahn v. Burke,
430 F.2d 100.
973.10 Annotation
A probation revocation hearing may be administrative. Retained or appointed counsel must be allowed to participate. Gunsolus v. Gagnon,
454 F.2d 416.
973.10 Annotation
Probation revocation; right to a hearing and to counsel. 1971 WLR 648.
973.10 Annotation
Probation and parole revocation in Wisconsin. 1977 WLR 503.
973.11
973.11
Placements with volunteers in probation program. 973.11(1)(1)
Placements. If a person is convicted of or pleads guilty or no contest to one or more misdemeanors for which mandatory periods of imprisonment are not required, if the chief judge of the judicial administrative district has approved a volunteers in probation program established in the applicable county, and if the court decides that volunteer supervision under the program will likely benefit the person and the community and subject to the limitations under
sub. (3), the court may withhold sentence or judgment of conviction and order that the person be placed with that volunteers in probation program. Except as provided in
sub. (3), the order shall provide any conditions that the court determines are reasonable and appropriate and may include, but need not be limited to, one or more of the following:
973.11(1)(a)
(a) A directive to a volunteer to provide one or more of the following functions for the defendant:
973.11(2)
(2) Approval of programs. In each judicial administrative district under
s. 757.60, the chief judge of the district may approve volunteers in probation programs established in the district for placements under this section.
973.11(3)
(3) Status. A defendant who is placed with a volunteers in probation program under
sub. (1) is subject to the conditions set by the court. The defendant is not on probation under
ss. 973.09 and
973.10 and the department is not responsible for supervising him or her. A court may place a defendant under
sub. (1) prior to conviction only if a deferred prosecution agreement is reached under
s. 971.40. In that case, the person is subject to the conditions set by the court under this section and the conditions provided in the agreement.
973.11(4)
(4) Term. The court shall set the length of the order, which may not exceed 2 years unless extended pursuant to a hearing under
sub. (5). When the defendant has satisfied the conditions of the order, the court shall discharge the defendant and dismiss the charges against the defendant if a judgment of conviction was not previously entered.
973.11(5)(a)(a) If the defendant is alleged to have violated the conditions of an order under
sub. (1), the court may hold a hearing regarding the allegations. The court shall notify the defendant at least 7 days prior to holding any such hearing. At the hearing, the defendant has the right to each of the following:
973.11(5)(b)
(b) The court may extend the period of supervision for up to 45 days to accommodate a hearing under this subsection.
973.11(5)(c)
(c) Failure of the defendant to appear at a hearing under this subsection tolls the running of the period of supervision.
973.11(5)(d)
(d) If the court finds that the violation occurred, it may impose a sentence, revise the conditions of the order or allow the order to continue.
973.11(6)
(6) Other modifications to order. At any time prior to the expiration of the order the court may shorten the length of the order or modify the conditions of the order. The court shall hold a hearing regarding a determination under this subsection if the defendant or district attorney requests a hearing.
973.11 History
History: 1991 a. 253;
1993 a. 213.
973.12
973.12
Sentence of a repeater or persistent repeater. 973.12(1)(1) Whenever a person charged with a crime will be a repeater or a persistent repeater under
s. 939.62 if convicted, any applicable prior convictions may be alleged in the complaint, indictment or information or amendments so alleging at any time before or at arraignment, and before acceptance of any plea. The court may, upon motion of the district attorney, grant a reasonable time to investigate possible prior convictions before accepting a plea. If the prior convictions are admitted by the defendant or proved by the state, he or she shall be subject to sentence under
s. 939.62 unless he or she establishes that he or she was pardoned on grounds of innocence for any crime necessary to constitute him or her a repeater or a persistent repeater. An official report of the F.B.I. or any other governmental agency of the United States or of this or any other state shall be prima facie evidence of any conviction or sentence therein reported. Any sentence so reported shall be deemed prima facie to have been fully served in actual confinement or to have been served for such period of time as is shown or is consistent with the report. The court shall take judicial notice of the statutes of the United States and foreign states in determining whether the prior conviction was for a felony or a misdemeanor.
973.12(2)
(2) In every case of sentence under
s. 939.62, the sentence shall be imposed for the present conviction, but if the court indicates in passing sentence how much thereof is imposed because the defendant is a repeater, it shall not constitute reversible error, but the combined terms shall be construed as a single sentence for the present conviction.
973.12 History
History: 1993 a. 289.
973.12 Annotation
Because s. 939.62 authorizes penalty enhancement only when the maximum underlying sentence is imposed, the enhancement portion of a sub-maximum sentence was an vacated as an abuse of sentencing discretion. State v. Harris,
119 Wis. 2d 612,
350 N.W.2d 633 (1984).
973.12 Annotation
A report under sub. (1) must contain critically relevant facts in order to support penalty enhancement. State v. Farr,
119 Wis. 2d 651,
350 N.W.2d 640 (1984).
973.12 Annotation
No amendment to a charging document to add a repeater allegation may be made after arraignment and acceptance of any plea. State v. Martin,
162 Wis. 2d 883,
470 N.W.2d 900 (1991).
973.12 Annotation
A post-plea amendment of a repeater allegation in a charging document that meaningfully changes the basis on which possible punishment can be assessed is barred. State v. Wilks,
165 Wis. 2d 102,
477 N.W.2d 632 (Ct. App. 1991).
973.12 Annotation
A guilty plea without a specific admission to repeater allegations is not sufficient to establish the facts necessary to impose the repeater penalty enhancer. Sate v. Zimmermann,
185 Wis. 2d 549,
518 N.W.2d 303 (Ct. App. 1994).
973.12 Annotation
When a defendant does not admit to habitual criminality when entering a no contest plea, the state must prove the alleged repeater status beyond a reasonable doubt. State v. Theriault,
187 Wis. 2d 125,
522 N.W.2d 254 (Ct. App. 1994).
973.12 Annotation
For a repeater enhancer to apply, the prior conviction must be alleged prior to the entry of a plea, but an error in the information regarding the penalty may be corrected when an amendment will cause no prejudice. State v. Gerard,
189 Wis. 2d 505,
525 N.W.2d 718 (1995).
973.12 Annotation
Proof of repeater status must be made prior to sentencing. Judicial notice of prior convictions at a postconviction hearing was improper. State v. Koeppen,
195 Wis. 2d 117,
536 N.W.2d 386 (Ct. App. 1995).
973.12 Annotation
Gerard is not limited to clerical errors. Where the information correctly alleges a defendant's repeater status, a post-arraignment amendment to the information does not violate this section as long as it does not affect the sufficiency of the notice to the defendant concerning his or her repeater status. State v. Campbell,
201 Wis. 2d 777,
549 N.W.2d 501 (Ct. App. 1996).
973.12 Annotation
The requirements for establishing prior offenses in s. 973.12 are not applicable to the penalty enhancement provisions under chs. 341-349, including drunk driving offenses under s. 346.65 (2) or operating after revocation offenses under 343.44 (2). State v. Wideman,
206 Wis. 2d 90,
556 N.W.2d 737 (1996) and State v. Spaeth,
206 Wis. 2d 134,
556 N.W.2d 728 (1996).
973.12 Annotation
Sub. (1) does not require that the period of incarceration under s. 939.62 (2) must be alleged in the charging document. State v. Squires,
211 Wis. 2d 873,
565 N.W.2d 309 (Ct. App. 1997).
973.12 Annotation
When the record established that the defendant fully understood the nature of the repeater charge against him, the defendant's no contest plea to the information, which charged the defendant as a repeater on all counts, constituted an admission under s. 973.12. State v. Liebnitz,
231 Wis. 2d 272,
603 N.W.2d 208 (Ct. App. 1999).
973.125
973.125
Notice of lifetime supervision for serious sex offenders. 973.125(1)(1) Whenever a prosecutor decides to seek lifetime supervision under
s. 939.615 of a person charged with a serious sex offense specified in
s. 939.615 (1) (b) 1., the prosecutor shall, at any time before or at arraignment and before acceptance of any plea, state in the complaint, indictment or information or amendments to the complaint, indictment or information that the prosecution will seek to have the person placed on lifetime supervision under
s. 939.615.
973.125(2)
(2) Whenever a prosecutor decides to seek lifetime supervision under
s. 939.615 of a person charged with a serious sex offense specified in
s. 939.615 (1) (b) 2., the prosecutor shall, at any time before or at arraignment and before acceptance of any plea, do all of the following:
973.125(2)(a)
(a) State in the complaint, indictment or information or amendments to the complaint, indictment or information that the prosecution will seek to have the person placed on lifetime supervision under
s. 939.615.
973.125(2)(b)
(b) Allege in the complaint that the violation with which the person is charged is a serious sex offense under
s. 939.615 (1) (b) because one of the purposes for the conduct constituting the violation was for the person's sexual arousal or gratification.
973.125(3)
(3) Before accepting a plea, the court may, upon motion of the district attorney, grant a reasonable time to investigate whether lifetime supervision may be necessary for a defendant or whether one of the purposes for the conduct constituting a violation with which a defendant is charged was for the defendant's sexual arousal or gratification.
973.125 History
History: 1997 a. 275.
973.13
973.13
Excessive sentence, errors cured. In any case where the court imposes a maximum penalty in excess of that authorized by law, such excess shall be void and the sentence shall be valid only to the extent of the maximum term authorized by statute and shall stand commuted without further proceedings.
973.13 Annotation
This section caps the length of a sentence reduced thereby, but it does not address other aspects or conditions of sentencing. The sentencing court may resentence the defendant if the new sentence is permitted by the law. State v. Holloway,
202 Wis. 2d 695,
551 N.W.2d 841 (Ct. App. 1996).
973.13 Annotation
This section commands that all sentences in excess of that authorized by law be declared void, including the repeater portion of a sentence. Prior postconviction motions that failed to challenge the validity of the sentence do not bar seeking relief from faulty repeater sentences. State v. Flowers,
221 Wis. 2d 20,
586 N.W.2d 175 (Ct. App. 1998).
973.135
973.135
Courts to report convictions to the state superintendent of public instruction. 973.135(1)(b)
(b) "State superintendent" means the state superintendent of public instruction.
973.135(2)
(2) If a court determines that a person convicted of a crime specified in
ch. 948, including a crime specified in
s. 948.015, a felony for which the maximum term of imprisonment is at least 5 years, 4th degree sexual assault under
s. 940.225 (3m) or a crime in which the victim was a child, is employed by an educational agency, the clerk of the court in which such conviction occurred shall promptly forward to the state superintendent the record of conviction.
973.135(3)
(3) If a conviction under
sub. (2) is reversed, set aside or vacated, the clerk of the court shall promptly forward to the state superintendent a certificate stating that the conviction has been reversed, set aside or vacated.
973.135 History
History: 1991 a. 42;
1995 a. 27;
1997 a. 27,
35.
973.14
973.14
Sentence to house of correction. 973.14(1)
(1) In addition to the authority in
ss. 302.18 and
303.18, prisoners sentenced to a county jail may be transferred by the sheriff to a house of correction without court approval.
973.14(2)
(2) Prisoners confined in the house of correction may be transferred by the superintendent of the house of correction to the county jail without court approval.
973.14(3)
(3) A prisoner sentenced to a county jail or the house of correction being held in a county jail awaiting trial on another charge shall be deemed to be serving the county jail or house of correction sentence and shall be given credit on the sentence as provided in
s. 302.43 or
303.19.
973.14 History
History: 1977 c. 126;
1989 a. 31.
973.15
973.15
Sentence, terms, escapes. 973.15(1)
(1) Except as provided in
s. 973.032, all sentences to the Wisconsin state prisons shall be for one year or more. Except as otherwise provided in this section, all sentences commence at noon on the day of sentence, but time which elapses after sentence while the convicted offender is at large on bail shall not be computed as any part of the term of imprisonment.
973.15(2)(a)(a) Except as provided in
par. (b), the court may impose as many sentences as there are convictions and may provide that any such sentence be concurrent with or consecutive to any other sentence imposed at the same time or previously.
973.15(2)(b)
(b) The court may not impose a sentence to the intensive sanctions program consecutive to any other sentence. The court may not impose a sentence to the intensive sanctions program concurrent with a sentence imposing imprisonment, except that the court may impose a sentence to the program concurrent with an imposed and stayed imprisonment sentence or with a prison sentence for which the offender has been released on extended supervision or parole. The court may impose concurrent intensive sanctions program sentences. The court may impose an intensive sanctions program sentence concurrent to probation. The court may impose any sentence for an escape from a sentence to the intensive sanctions program concurrent with the sentence to the intensive sanctions program.
973.15(3)
(3) Courts may impose sentences to be served in whole or in part concurrently with a sentence being served or to be served in a federal institution or an institution of another state.
973.15(4)
(4) When a court orders a sentence to the Wisconsin state prisons to be served in whole or in part concurrently with a sentence being served or to be served in a federal institution or an institution of another state:
973.15(4)(a)
(a) The court shall order the department to immediately inform the appropriate authorities in the jurisdiction where the prior sentence is to be served that the convicted offender is presently available to commence or resume serving that sentence; and
973.15(4)(b)
(b) The trial and commitment records required under
s. 973.08 shall be delivered immediately to the warden or superintendent of the Wisconsin institution designated as the reception center to receive the convicted offender when he or she becomes available to Wisconsin authorities.
973.15(5)
(5) A convicted offender who is made available to another jurisdiction under
ch. 976 or in any other lawful manner shall be credited with service of his or her Wisconsin sentence or commitment under the terms of
s. 973.155 for the duration of custody in the other jurisdiction.
973.15(6)
(6) Sections 302.11 and
304.06 are applicable to an inmate serving a sentence to the Wisconsin state prisons for a crime committed before December 31, 1999, but confined in a federal institution or an institution in another state.
973.15(7)
(7) If a convicted offender escapes, the time during which he or she is unlawfully at large after escape shall not be computed as service of the sentence.
973.15(8)(a)(a) The sentencing court may stay execution of a sentence of imprisonment or to the intensive sanctions program only:
