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 a defendant to 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
The trial court exceeded its authority in authorizing a probation agent to decide whether to require the defendant to serve three months in jail that the court ordered as a part of probation and then stayed. State v. Fearing, 2000 WI App 229,
239 Wis. 2d 105,
619 N.W.2d 115.
973.09 Annotation
Generally, neither probation or imprisonment as a condition of probation is considered to be a sentence. As such a person confined as a condition of probation cannot earn good time. State v. Fearing, 2000 WI App 229,
239 Wis. 2d 105,
619 N.W.2d 115.
973.09 Annotation
Corroboration of a confession is not required for the confession to be used as the basis of a revocation of probation. The appropriate test for admission of the confession is that it must carry sufficient indicia of reliability that the fact finder can rely upon to support the conclusion that revocation is appropriate and necessary. State ex rel. Washington v. Schwarz, 2000 WI App 235,
239 Wis. 2d 443,
620 N.W.2d 414.
973.09 Annotation
There is no statutory authority to order, as a condition of probation, payment of restitution obligations in a separate criminal case. State v. Torpen, 2001 WI App 273,
248 Wis. 2d 951,
637 N.W.2d 481.
973.09 Annotation
Probation is permitted under sub. (1) (d) for 4th and subsequent OWI violations as long as the probation requires confinement for at least the mandatory minimum time period under s. 346.65. State v. Eckola, 2001 WI App 295, 249 WI App 276,
638 N.W.2d 903.
973.09 Annotation
Revocation hearing examiners must specifically find that good cause exists for not allowing confrontation of adverse witnesses, but failure to do so does not require automatic reversal. Good cause should generally be based upon a balancing of the need of the probationer in cross-examining the witness and the interest of the state in denying confrontation, including consideration of the reliability of the evidence and the difficulty, expense, or other barriers to obtaining live testimony. State ex rel. Simpson v. Schwarz, 2002 WI App 7,
250 Wis. 2d 214,
640 N.W.2d 527.
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.
973.10(2)
(2) If a probationer violates the conditions of probation, the department of corrections may initiate a proceeding before the division of hearings and appeals in the department of administration. Unless waived by the probationer, a hearing examiner for the division shall conduct an administrative hearing and enter an order either revoking or not revoking probation. Upon request of either party, the administrator of the division shall review the order. If the probationer waives the final administrative hearing, the secretary of corrections shall enter an order either revoking or not revoking probation. If probation is revoked, the department shall:
973.10(2)(a)
(a) If the probationer has not already been sentenced, order the probationer brought before the court for sentence which shall then be imposed without further stay under
s. 973.15; or
973.10(2)(b)
(b) If the probationer has already been sentenced, order the probationer to prison, and the term of the sentence shall begin on the date the probationer enters the prison.
973.10(2g)
(2g) Upon demand prior to a revocation hearing under
sub. (2), the district attorney shall disclose to a defendant the existence of any videotaped oral statement of a child under
s. 908.08 which is within the possession, custody or control of the state and shall make reasonable arrangements for the defendant and defense counsel to view the videotaped statement. If, subsequent to compliance with this subsection, the state obtains possession, custody or control of such a videotaped statement, the district attorney shall promptly notify the defendant of that fact and make reasonable arrangements for the defendant and defense counsel to view the videotaped statement.
973.10(2m)
(2m) In any administrative hearing under
sub. (2), the hearing examiner may order the taking and allow the use of a videotaped deposition under
s. 967.04 (7) to
(10).
973.10(3)
(3) A copy of the order of the department of corrections in the case of a waiver or the division of hearings and appeals in the department of administration in the case of a final administrative hearing is sufficient authority for the officer executing it to take the probationer to court or to prison. The officer shall execute the order as a warrant for arrest but any officer may, without order or warrant, take the probationer into custody whenever necessary in order to prevent escape or enforce discipline or for violation of probation.
973.10(4)
(4) The division of hearings and appeals in the department of administration shall make either an electronic or stenographic record of all testimony at each probation revocation hearing. The division shall prepare a written transcript of the testimony only at the request of a judge who has granted a petition for judicial review of the revocation decision. Each hearing notice shall include notice of the provisions of this subsection and a statement that any person who wants a written transcript may record the hearing at his or her own expense.
973.10 Cross-reference
Cross Reference: See also ss.
DOC 330.02 and
331.01, Wis. adm. code.
973.10 Note
Judicial Council Note, 1981: Sub. (2) (a) has been amended to clarify that, upon revocation of probation of an offender from whom sentence was originally withheld, the court must impose sentence in accordance with s. 973.15. That section now permits the court to order that any sentence be concurrent with or consecutive to any sentence imposed at the same time or previously. [Bill 341-A]
973.10 Annotation
Before probation can be revoked, the department must hold a hearing and make a record so that on judicial review it can be determined whether the department acted arbitrarily or capriciously. The hearing need not be formal. State ex rel. Johnson v. Cady,
50 Wis. 2d 540,
185 N.W.2d 306 (1971).
973.10 Annotation
Revocation of probation is an integral part of the sentencing process; a defendant is entitled to assistance of counsel at parole or probation revocation hearings without regard to whether the hearing occurs in a withheld sentence or a postsentence situation. Oestrich v. State,
55 Wis. 2d 222,
198 N.W.2d 664 (1974).
973.10 Annotation
Since probation revocation hearings are independent from the original conviction and sentencing, a judge disqualified in the original case may preside at the hearing in the absence of a challenge. State v. Fuller,
57 Wis. 2d 408,
204 N.W.2d 452 (1973).
973.10 Annotation
ABA standards relating to probation are adopted and applied. State ex rel. Plotkin v. DHSS,
63 Wis. 2d 535,
217 N.W.2d 641 (1974).
973.10 Annotation
A certiorari proceeding in the committing court to review a revocation of parole or probation is not a criminal proceeding. State ex rel. Hanson v. DHSS,
64 Wis. 2d 367,
219 N.W.2d 267 (1974).
973.10 Annotation
The right to counsel at a preliminary revocation hearing is within the discretion of the department based on the need to meet the applicable due process requirements. State ex rel. Hawkins v. Gagnon,
64 Wis. 2d 394,
219 N.W.2d 252 (1974).
973.10 Annotation
A defendant whose probation was transferred to Tennessee and who was charged with a violation of probation there was denied due process when the revocation hearing was held in Wisconsin and the department refused to allow deposition of witnesses in Tennessee. When the witnesses' testimony is of a direct and unequivocally exculpatory nature rather than cumulative, character, or background testimony that might have been adequately presented by deposition or affidavit, an opportunity to present live testimony with cross-examination of the witnesses is required. State ex rel. Harris v. Schmidt,
69 Wis. 2d 668,
230 N.W.2d 890 (1975).
973.10 Annotation
Department probation files and records are public records and admissible at a probation revocation hearing. State ex rel. Prellwitz v. Schmidt,
73 Wis. 2d 35,
242 N.W.2d 227 (1976).
973.10 Annotation
Time spent in jail awaiting revocation is deducted from a maximum sentence despite the option available to the defendant to spend the time in prison. State ex rel. Solie v. Schmidt,
73 Wis. 2d 76,
242 N.W.2d 244 (1976).
973.10 Annotation
When the department overrules its hearing examiner and revokes probation, it must provide a statement of the evidence relied upon and the reasons for revoking probation. Ramaker v. State,
73 Wis. 2d 563,
243 N.W.2d 534 (1976).
973.10 Annotation
A warrantless search by a probation officer was constitutionally permissible when probable cause existed for the officer's attempt to determine whether the probationer had violated probation. State v. Tarrell,
74 Wis. 2d 647,
247 N.W.2d 696 (1976).
973.10 Annotation
The trial court had no authority to extend the probation of a defendant brought before the court under sub. (2). State v. Balgie,
76 Wis. 2d 206,
251 N.W.2d 36 (1977).
973.10 Annotation
The court exceeded its jurisdiction by releasing the defendant on bail pending revocation proceedings. State ex rel. DHSS v. Second Judicial Circuit Court,
84 Wis. 2d 707,
267 N.W.2d 373 (1978).
973.10 Annotation
Equal protection does not require symmetry in probation and parole systems. State v. Aderhold,
91 Wis. 2d 306,
284 N.W.2d 108 (Ct. App. 1979).
973.10 Annotation
A probationer's due process right to prompt revocation proceedings was not triggered when the probationer was detained as a result of unrelated criminal proceedings. State ex rel. Alvarez v. Lotter,
91 Wis. 2d 329,
283 N.W.2d 408 (Ct. App. 1979).
973.10 Annotation
Probation can be revoked for violation of a criminal statute absent a written probation agreement. State ex rel. Rodriguez v. DH&SS,
133 Wis. 2d 47,
393 N.W.2d 105 (Ct. App. 1986).
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 a 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
A 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 (1970).
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 (1971).
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.
