Effective date note NOTE: Par. (c) is repealed eff. 2-1-03 by 2001 Wis. Act 109.
939.615 History History: 1997 a. 275; 1999 a. 3, 89; 2001 a. 109.
939.62 939.62 Increased penalty for habitual criminality.
939.62(1)(1) If the actor is a repeater, as that term is defined in sub. (2), and the present conviction is for any crime for which imprisonment may be imposed, except for an escape under s. 946.42 or a failure to report under s. 946.425, the maximum term of imprisonment prescribed by law for that crime may be increased as follows:
939.62(1)(a) (a) A maximum term of imprisonment of one year or less may be increased to not more than 2 years.
Effective date note NOTE: Par. (a) is shown as amended eff. 2-1-03 by 2001 Wis. Act 109. Prior to 2-1-03 it reads:
Effective date text (a) A maximum term of one year or less may be increased to not more than 3 years.
939.62(1)(b) (b) A maximum term of imprisonment of more than one year but not more than 10 years may be increased by not more than 2 years if the prior convictions were for misdemeanors and by not more than 4 years if the prior conviction was for a felony.
Effective date note NOTE: Par. (b) is shown as amended eff. 2-1-03 by 2001 Wis. Act 109. Prior to 2-1-03 it reads:
Effective date text (b) A maximum term of more than one year but not more than 10 years may be increased by not more than 2 years if the prior convictions were for misdemeanors and by not more than 6 years if the prior conviction was for a felony.
939.62(1)(c) (c) A maximum term of imprisonment of more than 10 years may be increased by not more than 2 years if the prior convictions were for misdemeanors and by not more than 6 years if the prior conviction was for a felony.
Effective date note NOTE: Par. (c) is shown as amended eff. 2-1-03 by 2001 Wis. Act 109. Prior to 2-1-03 it reads:
Effective date text (c) A maximum term of more than 10 years may be increased by not more than 2 years if the prior convictions were for misdemeanors and by not more than 10 years if the prior conviction was for a felony.
939.62(2) (2) The actor is a repeater if the actor was convicted of a felony during the 5-year period immediately preceding the commission of the crime for which the actor presently is being sentenced, or if the actor was convicted of a misdemeanor on 3 separate occasions during that same period, which convictions remain of record and unreversed. It is immaterial that sentence was stayed, withheld or suspended, or that the actor was pardoned, unless such pardon was granted on the ground of innocence. In computing the preceding 5-year period, time which the actor spent in actual confinement serving a criminal sentence shall be excluded.
939.62(2m) (2m)
939.62(2m)(a)(a) In this subsection:
939.62(2m)(a)1m. 1m. "Serious child sex offense" means any of the following:
939.62(2m)(a)1m.a. a. A violation of s. 948.02, 948.025, 948.05, 948.055, 948.06, 948.07, 948.08 or 948.095 or 948.30 or, if the victim was a minor and the convicted person was not the victim's parent, a violation of s. 940.31.
939.62(2m)(a)1m.b. b. A crime at any time under federal law or the law of any other state or, prior to July 16, 1998, under the law of this state that is comparable to a crime specified in subd. 1m. a.
939.62(2m)(a)2m. 2m. "Serious felony" means any of the following:
939.62(2m)(a)2m.a. a. Any felony under s. 961.41 (1), (1m) or (1x) that is a Class A, B, or C felony or, if the felony was committed before February 1, 2003, that is or was punishable by a maximum prison term of 30 years or more.
Effective date note NOTE: Subdpar. a. is shown as amended eff. 2-1-03 by 2001 Wis. Act 109. Prior to 2-1-03 it reads:
939.62 Note a. Any felony under s. 961.41 (1), (1m) or (1x) if the felony is punishable by a maximum prison term of 30 years or more.
Effective date note NOTE: Subdpar. b. is shown as amended eff. 2-1-03 by 2001 Wis. Act 109. Prior to 2-1-03 it reads:
939.62 Note b. 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, 948.075, 948.08, 948.30 (2), 948.35 (1) (b) or (c), or 948.36.
939.62(2m)(a)2m.c. c. The solicitation, conspiracy or attempt, under s. 939.30, 939.31 or 939.32, to commit a Class A felony.
939.62(2m)(a)2m.d. d. A crime at any time under federal law or the law of any other state or, prior to April 28, 1994, under the law of this state that is comparable to a crime specified in subd. 2m. a., b. or c.
939.62(2m)(b) (b) The actor is a persistent repeater if one of the following applies:
939.62(2m)(b)1. 1. The actor has been convicted of a serious felony on 2 or more separate occasions at any time preceding the serious felony for which he or she presently is being sentenced under ch. 973, which convictions remain of record and unreversed and, of the 2 or more previous convictions, at least one conviction occurred before the date of violation of at least one of the other felonies for which the actor was previously convicted.
939.62(2m)(b)2. 2. The actor has been convicted of a serious child sex offense on at least one occasion at any time preceding the date of violation of the serious child sex offense for which he or she presently is being sentenced under ch. 973, which conviction remains of record and unreversed.
939.62(2m)(bm) (bm) For purposes of counting a conviction under par. (b), it is immaterial that the sentence for the previous conviction was stayed, withheld or suspended, or that the actor was pardoned, unless the pardon was granted on the ground of innocence.
939.62(2m)(c) (c) If the actor is a persistent repeater, the term of imprisonment for the felony for which the persistent repeater presently is being sentenced under ch. 973 is life imprisonment without the possibility of parole or extended supervision.
939.62(2m)(d) (d) If a prior conviction is being considered as being covered under par. (a) 1m. b. or 2m. d. as comparable to a felony specified under par. (a) 1m. a. or 2m. a., b. or c., the conviction may be counted as a prior conviction under par. (b) only if the court determines, beyond a reasonable doubt, that the violation relating to that conviction would constitute a felony specified under par. (a) 1m. a. or 2m. a., b. or c. if committed by an adult in this state.
939.62(3) (3) In this section "felony" and "misdemeanor" have the following meanings:
939.62(3)(a) (a) In case of crimes committed in this state, the terms do not include motor vehicle offenses under chs. 341 to 349 and offenses handled through proceedings in the court assigned to exercise jurisdiction under chs. 48 and 938, but otherwise have the meanings designated in s. 939.60.
939.62(3)(b) (b) In case of crimes committed in other jurisdictions, the terms do not include those crimes which are equivalent to motor vehicle offenses under chs. 341 to 349 or to offenses handled through proceedings in the court assigned to exercise jurisdiction under chs. 48 and 938.Otherwise, felony means a crime which under the laws of that jurisdiction carries a prescribed maximum penalty of imprisonment in a prison or penitentiary for one year or more. Misdemeanor means a crime which does not carry a prescribed maximum penalty sufficient to constitute it a felony and includes crimes punishable only by a fine.
939.62 Cross-reference Cross-reference: For procedure, see s. 973.12.
939.62 Annotation Imposition of a 3-year sentence as a repeater was not cruel and unusual even though the conviction involved the stealing of 2 boxes of candy, which carried a maximum sentence of 6 months. Hanson v. State, 48 Wis. 2d 203, 179 N.W.2d 909 (1970).
939.62 Annotation A repeater charge must be withheld from the jury's knowledge since it is relevant only to sentencing. Mulkovich v. State, 73 Wis. 2d 464, 243 N.W.2d 198 (1976).
939.62 Annotation This section authorizes penalty enhancement only when the maximum underlying sentence is imposed. The enhancement portion of a sub-maximum sentence is vacated as an abuse of sentencing discretion. State v. Harris, 119 Wis. 2d 612, 350 N.W.2d 633 (1984).
939.62 Annotation In sub. (2), "convicted of a misdemeanor on 3 separate occasions" requires 3 separate misdemeanors, not 3 separate court appearances. State v. Wittrock, 119 Wis. 2d 664, 350 N.W.2d 647 (1984).
939.62 Annotation A court's acceptance of a guilty plea or verdict is sufficient to trigger the operation of this section; completion of sentencing is not a prerequisite. State v. Wimmer, 152 Wis. 2d 654, 449 N.W.2d 621 (Ct. App. 1989).
939.62 Annotation Felony convictions entered following a waiver from juvenile court are a proper basis for a repeater allegation; those offenses were not "handled through" ch. 48. State v. Kastner, 156 Wis. 2d 371, 457 N.W.2d 331 (Ct. App. 1990).
939.62 Annotation Sub. (1) is applicable when concurrent maximum sentences are imposed for multiple offenses. Consecutive sentences are not required. State v. Davis, 165 Wis. 2d 78, 477 N.W.2d 307 (Ct. App. 1991).
939.62 Annotation For offenses under ch. 161 [now 961], the court may apply s. 961.48 or 939.62, but not both. State v. Ray, 166 Wis. 2d 855, 481 N.W.2d 288 (Ct. App. 1992).
939.62 Annotation Each conviction for a misdemeanor constitutes a "separate occasion" for purposes of sub. (2). State v. Hopkins, 168 Wis. 2d 802, 484 N.W.2d 549 (1992).
939.62 Annotation Enhancement of a sentence under this section does not violate double jeopardy. State v. James, 169 Wis. 2d 490, 485 N.W.2d 436 (Ct. App. 1992).
939.62 Annotation This section does not grant a trial court authority to increase a punitive sanction for contempt of court. State v. Carpenter, 179 Wis. 2d 838, 508 N.W.2d 69 (Ct. App. 1993).
939.62 Annotation The state is charged with proving a prior conviction and that it lies within the 5-year window of sub. (2). State v. Goldstein, 182 Wis. 2d 251, 513 N.W.2d 631 (Ct. App. 1994).
939.62 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. State v. Zimmermann, 185 Wis. 2d 549, 518 N.W.2d 303 (Ct. App. 1994).
939.62 Annotation When a defendant does not admit to habitual criminality, the state must prove the alleged repeater status beyond a reasonable doubt. State v. Theriault, 187 Wis. 2d 125, 522 N.W.2d 264 (Ct. App. 1994).
939.62 Annotation A commitment under the Sex Crimes Law, ch. 975, is not a sentence under sub. (2). State v. Kruzycki, 192 Wis. 2d 509, 531 N.W.2d 429 (Ct. App. 1995).
939.62 Annotation Sub. (2m) (b) is constitutional. It does not violate the guaranty against cruel and unusual punishment, the principal of separation of powers, or the guaranty of equal protection. State v. Lindsey, 203 Wis. 2d 423, 554 N.W.2d 215 (Ct. App. 1996).
939.62 Annotation A conviction for purposes of sub. (2) occurs when the judgment of conviction under s. 972.13 is entered, not the date that guilt is found. Mikrut v. State, 212 Wis. 2d 859, 569 N.W.2d 765 (Ct. App. 1997).
939.62 Annotation Section 973.13 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).
939.62 Annotation Sub. (2m) (b) does not violate constitutional equal protection requirements. State v. Block, 222 Wis. 2d 586, 587 N.W.2d 914 (Ct. App. 1998).
939.62 Annotation When the state charged the defendant as a repeater under subs. (1) (c) and (2), then charged the defendant as a repeater under sub. (2m) in the information, it abandoned the earlier charges and could not resurrect them when the latter charge proved to be invalid. State v. Thoms, 228 Wis. 2d 868, 599 N.W.2d 84 (Ct. App. 1999).
939.62 Annotation Confinement time spent on various parole holds qualifies as actual confinement serving a criminal sentence thereby extending the 5-year period under sub. (2). State v. Price, 231 Wis. 2d 229, 231 N.W.2d 229 (Ct. App. 1999).
939.62 Annotation Jail time served as a condition of probation is time spent in confinement under sub. (2) and is excluded from calculating the statute's time period. State v. Crider, 2000 WI App 84, 234 Wis. 2d 195, 610 N.W.2d 198.
939.62 Annotation Because s. 941.29 (2m), the second offense felon in possession of a firearm statute, defines an additional element to the crime in s. 941.29 (2), felon in possession of a firearm, it creates a separate offense, and not a penalty enhancer, and will support the application of this section. State v. Gibson, 2000 WI App 207, 238 Wis. 2d 547, 618 N.W.2d 248.
939.62 Annotation A circuit court may not determine the validity of a prior conviction during an enhanced sentencing proceeding predicated on the prior conviction unless the offender alleges that a violation of the right to a lawyer occurred in the prior conviction. The offender may use whatever means are available to challenge the other conviction in another forum, and if successful, seek to reopen the enhanced sentence. State v. Hahn, 2000 WI 118, 238 Wis. 2d 889, 618 N.W.2d 528.
939.62 Annotation When two penalty enhancers are applicable to the same crime, the length of the second penalty enhancer is based on the maximum term for the base crime as extended by the first penalty enhancer. State v. Quiroz, 2002 WI App 52, 251 Wis. 2d 245, 641 N.W.2d 715.
939.62 Annotation For purposes of applying this section, the definition of "crime" in s. 939.12 as "conduct which is prohibited by state law and punishable by fine or imprisonment or both" is applicable to statutes outside of chs. 939 to 948 and 951. State v. Sveum, 2002 WI App 105, 254 Wis. 2d 868, 648 N.W.2d 496.
939.62 Annotation Sub. (2m) was constitutional as applied to the defendant. State v. Radke, 2002 WI App 146, ___ Wis. 2d ___, 648 N.W.2d 873.
939.62 Annotation An uncertified copy of a prior judgment of conviction may be used to prove a convicted defendant's status as a habitual criminal. The rules of evidence do not apply to documents offered during a circuit court's presentence determination of whether a qualifying prior conviction exists. The state has the burden of proof and must offer proof beyond a reasonable doubt of the conviction. State v. Saunders, 2002 WI 107, ___ Wis. 2d ___, 649 N.W.2d 263.
939.62 Annotation A defendant's admission that an out-of-state crime is a serious felony does not relieve a court of its obligation to make an independent determination on that issue. The trial court's failure to make that finding did not prevent the appellate court from making it. State v. Collins, 2002 WI App 177,___ Wis. 2d ___, 649 N.W.2d 325.
939.621 939.621 Increased penalty for certain domestic abuse offenses. If a person commits an act of domestic abuse, as defined in s. 968.075 (1) (a) and the act constitutes the commission of a crime, the maximum term of imprisonment for that crime may be increased by not more than 2 years if the crime is committed during the 72 hours immediately following an arrest for a domestic abuse incident, as set forth in s. 968.075 (5). The 72-hour period applies whether or not there has been a waiver by the victim under s. 968.075 (5) (c). The victim of the domestic abuse crime does not have to be the same as the victim of the domestic abuse incident that resulted in the arrest. The penalty increase under this section changes the status of a misdemeanor to a felony.
939.621 History History: 1987 a. 346; 1995 a. 304.
939.621 Annotation When two penalty enhancers are applicable to the same crime, the length of the second penalty enhancer is based on the maximum term for the base crime as extended by the first penalty enhancer. State v. Quiroz, 2002 WI App 52, 251 Wis. 2d 245, 641 N.W.2d 715.
939.622 939.622 Committing a serious sex crime while infected with acquired immunodeficiency syndrome, HIV or a sexually transmitted disease.
939.622(1) (1) In this section:
939.622(1)(a) (a) "HIV" means any strain of human immunodeficiency virus, which causes acquired immunodeficiency syndrome.
939.622(1)(b) (b) "Serious sex crime" means a violation of s. 940.225 (1) or (2), 948.02 (1) or (2) or 948.025.
939.622(1)(c) (c) "Sexually transmitted disease" means syphilis, gonorrhea, hepatitis B, hepatitis C or chlamydia.
939.622(1)(d) (d) "Significantly exposed" means sustaining a contact which carries a potential for transmission of a sexually transmitted disease or HIV by one or more of the following:
939.622(1)(d)1. 1. Transmission, into a body orifice or onto mucous membrane, of blood; semen; vaginal secretions; cerebrospinal, synovial, pleural, peritoneal, pericardial or amniotic fluid; or other body fluid that is visibly contaminated with blood.
939.622(1)(d)2. 2. Exchange, during the accidental or intentional infliction of a penetrating wound, including a needle puncture, of blood; semen; vaginal secretions; cerebrospinal, synovial, pleural, peritoneal, pericardial or amniotic fluid; or other body fluid that is visibly contaminated with blood.
939.622(1)(d)3. 3. Exchange, into an eye, an open wound, an oozing lesion, or other place where a significant breakdown in the epidermal barrier has occurred, of blood; semen; vaginal secretions; cerebrospinal, synovial, pleural, peritoneal, pericardial or amniotic fluid; or other body fluid that is visibly contaminated with blood.
939.622(2) (2) The maximum term of imprisonment for a serious sex crime may be increased by not more than 5 years if all of the following apply:
939.622(2)(a) (a) At the time that he or she commits the serious sex crime, the person convicted of committing the serious sex crime has a sexually transmitted disease or acquired immunodeficiency syndrome or has had a positive test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV.
939.622(2)(b) (b) At the time that he or she commits the serious sex crime, the person convicted of committing the serious sex crime knows that he or she has a sexually transmitted disease or acquired immunodeficiency syndrome or that he or she has had a positive test for the presence of HIV, antigen or nonantigenic products of HIV or an antibody to HIV.
939.622(2)(c) (c) The victim of the serious sex crime was significantly exposed to HIV or to the sexually transmitted disease, whichever is applicable, by the acts constituting the serious sex crime.
939.622(3) (3) This section provides for the enhancement of the maximum term of imprisonment provided 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).
Effective date note NOTE: This section is repealed eff. 2-1-03 by 2001 Wis. Act 109.
939.622 History History: 1997 a. 276; 2001 a. 109.
939.622 Annotation When two penalty enhancers are applicable to the same crime, the length of the second penalty enhancer is based on the maximum term for the base crime as extended by the first penalty enhancer. State v. Quiroz, 2002 WI App 52, 251 Wis. 2d 245, 641 N.W.2d 715.
939.623 939.623 Increased penalty; repeat serious sex crimes.
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This is an archival version of the Wis. Stats. database for 2001. See Are the Statutes on this Website Official?