973.15(8)(b)
(b) If a court sentences a person under
s. 973.03 (5) (b), this subsection applies only to the first period of imprisonment.
973.15 Note
Judicial Council Note, 1981: Sub. (2) has been simplified to allow a court, in imposing a criminal sentence, to order that it be concurrent with or consecutive to any other sentence imposed at the same time or previously. The prior statute, although lengthier and more complicated, failed to achieve its apparent purpose of allowing consecutive sentencing in situations involving probation and parole revocations, escapes, etc. See Drinkwater v. State,
69 Wis. 2d 60 (1975); Guyton v. State,
69 Wis. 2d 663 (1975); Bruneau v. State,
77 Wis. 2d 166 (1977); Smith v. State,
85 Wis. 2d 650 (1978); and Donaldson v. State,
93 Wis. 2d 306 (1980).
973.15 Annotation
This revision allows sentences to be made consecutive to any previously or simultaneously imposed sentence, without regard to whether the offender is "then serving" such sentence, is subject to parole revocation proceedings, or has received a new sentence between the time of an escape and a return to a state facility. The revised statute also governs the sentencing of probationers by virtue of the cross-references in ss. 973.09 (1) (a) and 973.10 (2) (a). [Bill 341-A]
973.15 Note
Judicial Council Note, 1981: Sub. (8) has been added to specify the circumstances under which execution of a sentence of imprisonment may be stayed. Par. (a) references the rule of Reinex v. State, 51 Wis. 152 (1881) and Weston v. State,
28 Wis. 2d 136 (1965), whereby execution can be stayed for "legal cause", such as during the pendency of an appeal. Par. (b) cross-references the probation statute. Par. (c) is new. It allows the court to delay the commencement of a sentence for up to 60 days. The Wisconsin supreme court recently held that courts have no authority to stay execution of a sentence of imprisonment in the absence of such a statutory provision or legal cause. State v. Braun,
100 Wis. 2d 77 (1981). [Bill 736-A]
973.15 Annotation
Under s. 973.15 (2) and (3), a court may impose a sentence consecutive to an out-of-state sentence. State v. Toy,
125 Wis. 2d 216,
371 N.W.2d 386 (Ct. App. 1985).
973.15 Annotation
A sentencing court has authority to stay a sentence and order it be served consecutive to a ss. 345.47 and 973.07 commitment for failure to pay fine and penalty assessment. State v. Strohbeen,
147 Wis. 2d 566,
433 N.W.2d 288 (Ct. App. 1988).
973.15 Annotation
An adult sentence cannot run consecutive to a juvenile disposition. State v. Woods,
173 Wis. 2d 129,
496 N.W.2d 144 (Ct. App. 1992).
973.15 Annotation
The sentence of a defendant convicted of committing a crime while committed under a prior not guilty by reason of mental incompetence commitment under s. 971.17 may not be served concurrent with the commitment. State v. Szulczewski,
209 Wis. 2d 1,
561 N.W.2d 781 (Ct. App. 1997).
973.15 Annotation
A court may not order a prison sentence consecutive to an s. 971.17 commitment. A sentence can only be imposed concurrent or consecutive to another sentence. State v. Harr,
211 Wis. 2d 584,
568 N.W.2d 307 (Ct. App. 1997).
973.15 Annotation
The power under sub. (2) to impose consecutive sentences does not grant authority to impose a sentence to be served consecutively to jail time being served as a condition of probation. State v. Moran,
214 Wis. 2d 383,
571 N.W.2d 454 (Ct. App. 1997).
973.15 Annotation
A commitment under s. 971.17 is legal cause under s. 973.15 (8) to stay the sentence of a defendant who commits a crime while serving the commitment. Whether to stay the sentence while the commitment is in effect or to begin the sentence immediately is within the sentencing court's discretion. State v. Szulczewski,
216 Wis. 2d 494,
574 N.W.2d 660 (1998).
973.15 Annotation
Sub. (2) authorizes a trial court to impose a sentence consecutive to a previously imposed sentence upon revocation of parole on that sentence. Prior revocation of parole on the earlier sentence is not required before a consecutive sentence may be issued. State v. Cole, 2000 WI App 52,
233 Wis. 2d 577,
608 N.W.2d 432.
973.15 Annotation
That a sentence begins at noon under sub. (1) was not relevant to a double jeopardy analysis in regard to a sentence pronounced in the morning and then corrected and lengthened the same afternoon before the judgment was entered into the record. State v. Burt, 2000 WI App 126,
237 Wis. 2d 610,
614 N.W.2d 42.
973.15 Annotation
Double jeopardy prevents a court that, under a mistaken view of the law, entered a valid concurrent sentence from 3 months later revising the sentence to be a consecutive sentence. State v. Willett, 2000 WI App 212,
238 Wis. 2d 621,
618 N.W.2d 881.
973.15 AnnotationOvercrowding does not constitute legal cause under sub. (8) (a).
76 Atty. Gen. 165.
973.155(1)(a)(a) A convicted offender shall be given credit toward the service of his or her sentence for all days spent in custody in connection with the course of conduct for which sentence was imposed. As used in this subsection, "actual days spent in custody" includes, without limitation by enumeration, confinement related to an offense for which the offender is ultimately sentenced, or for any other sentence arising out of the same course of conduct, which occurs:
973.155(1)(a)3.
3. While the offender is awaiting imposition of sentence after trial.
973.155(1)(b)
(b) The categories in
par. (a) include custody of the convicted offender which is in whole or in part the result of a probation, extended supervision or parole hold under
s. 302.113 (8m),
302.114 (8m),
304.06 (3), or
973.10 (2) placed upon the person for the same course of conduct as that resulting in the new conviction.
973.155(2)
(2) After the imposition of sentence, the court shall make and enter a specific finding of the number of days for which sentence credit is to be granted, which finding shall be included in the judgment of conviction. In the case of revocation of probation, extended supervision or parole, the department, if the hearing is waived, or the division of hearings and appeals in the department of administration, in the case of a hearing, shall make such a finding, which shall be included in the revocation order.
973.155(3)
(3) The credit provided in
sub. (1) shall be computed as if the convicted offender had served such time in the institution to which he or she has been sentenced.
973.155(4)
(4) The credit provided in
sub. (1) shall include earned good time for those inmates subject to
s. 302.43,
303.07 (3) or
303.19 (3) serving sentences of one year or less and confined in a county jail, house of correction or county reforestation camp.
973.155(5)
(5) If this section has not been applied at sentencing to any person who is in custody or to any person who is on probation, extended supervision or parole, the person may petition the department to be given credit under this section. Upon proper verification of the facts alleged in the petition, this section shall be applied retroactively to the person. If the department is unable to determine whether credit should be given, or otherwise refuses to award retroactive credit, the person may petition the sentencing court for relief. This subsection applies to any person, regardless of the date he or she was sentenced.
973.155(6)
(6) A defendant aggrieved by a determination by a court under this section may appeal in accordance with
s. 809.30.
973.155 Cross-reference
Cross Reference: See also s.
DOC 302.28, Wis. adm. code.
973.155 Annotation
The trial court did not abuse its discretion during resentencing when it refused to give the defendant credit for time served on an unrelated conviction that was voided. State v. Allison,
99 Wis. 2d 391,
298 N.W.2d 286 (Ct. App. 1980).
973.155 Annotation
This section grants credit for each day in custody regardless of the basis for confinement as long as it is connected to the offense for which sentence is imposed. State v. Gilbert,
115 Wis. 2d 371,
340 N.W.2d 511 (1983).
973.155 Annotation
When the intended sentence was valid, but the judge did not follow the procedures under this section, the appropriate remedy was to modify the sentence to conform it to the requirements of this section. State v. Walker,
117 Wis. 2d 579,
345 N.W.2d 413 (1984).
973.155 Annotation
"Custody" must result from the occurrence of a legal event, process, or authority that occasions, or is related to, confinement on a charge for which the accused is ultimately sentenced. State v. Demars,
119 Wis. 2d 19,
349 N.W.2d 708 (Ct. App. 1984).
973.155 Annotation
When an offender committed robbery and 24 hours later fled from an officer, the offender was not entitled to credit toward the robbery sentence for time served under the sentence for fleeing an officer. State v. Gavigan,
122 Wis. 2d 389,
362 N.W.2d 162 (Ct. App. 1984).
973.155 Annotation
When a probationer is arrested for a 2nd crime and consequently begins serving time for the first crime, no credit toward the 2nd sentence is required for time served under the first sentence. State v. Beets,
124 Wis. 2d 372,
369 N.W.2d 382 (1985).
973.155 Annotation
No credit was due for time spent in a drug treatment facility as a condition of probation when the defendant was not in actual "custody" at the facility within the meaning of this section and s. 946.42. State v. Cobb,
135 Wis. 2d 181,
400 N.W.2d 9 (Ct. App. 1986).
973.155 Annotation
Credit under this section is given on a day-to-day basis, which is not to be duplicatively credited to more than one consecutive sentence. State v. Boettcher,
144 Wis. 2d 86,
423 N.W.2d 533 (1988).
973.155 Annotation
A defendant is entitled to credit against a sentence for the period during which he was denied admission to a county jail due to overcrowding; however, the defendant is not entitled to credit for time as of the date he was to have reported to jail to serve the sentence. State v. Riske,
152 Wis. 2d 260,
448 N.W.2d 260 (Ct. App. 1989).
973.155 Annotation
Pre-sentence credit must be applied to each of the concurrent terms to which the defendant is sentenced. State v. Ward,
153 Wis. 2d 743,
452 N.W.2d 158 (Ct. App. 1989).
973.155 Annotation
Out of state presentence confinement while the defendant was on parole from Wisconsin may not be credited against subsequent reconfinement in Wisconsin for a parole violation. State v. Rohl,
160 Wis. 2d 325,
466 N.W.2d 208 (Ct. App. 1991).
973.155 Annotation
When a waiver of juvenile jurisdiction is granted, secure juvenile detention time is eligible for credit consideration under this section as if it were jail time, retroactive to the date of the filing of the juvenile petition. State v. Baker,
179 Wis. 2d 655,
508 N.W.2d 40 (Ct. App. 1993).
973.155 Annotation
The definition of "custody" in s. 946.42 (1) (a) is used to determine whether a person is in custody for sentence credit purposes. State v. Sevelin,
204 Wis. 2d 127,
554 N.W.2d 521 (Ct. App. 1996).
973.155 Annotation
A person confined on a probation revocation or change in intensive sanctions due to an arrest for a subsequent crime is not entitled to credit under sub. (1) against the sentence for the subsequent crime although the confinement was triggered by the subsequent crime. State v. Abbott,
207 Wis. 2d 621,
558 N.W.2d 927 (Ct. App. 1996).
973.155 Annotation
Sub. (1) (a) provides sentence credit only for custody connected to the charges to which the custody resulted from. Time served as the result of a bail jumping charge was not credited against a sentence for sexual assault, although the bail condition violated was in the sexual assault case. State v. Beiersdorf,
208 Wis. 2d 492,
561 N.W.2d 749 (Ct. App. 1997).
973.155 Annotation
When a defendant is unable to satisfy cash-bail requirements on 2 or more unrelated charges, the defendant is entitled to sentence credit on both charges. However if the defendant is committed following a finding of not guilty by reason of mental defect on one charge, there will be no sentence credit from the commitment against a sentence upon conviction on another of the charges as the confinement after the commitment is solely the result of the commitment. State v. Harr,
211 Wis. 2d 584,
568 N.W.2d 307 (Ct. App. 1997).
973.155 Annotation
An 18-year old on juvenile aftercare parole who was returned to juvenile detention because the parole was revoked pending sentencing after pleading guilty to an adult crime was eligible for sentence credit for the time spent in juvenile detention prior to sentencing. State v. Thompson,
225 Wis. 2d 578,
593 N.W.2d 875 (Ct. App. 1999).
973.155 Annotation
When a sentence has been withheld and probation imposed, sub. (2) gives the court exclusive authority to determine sentence credit in imposing a postprobation sentence. A person subject to electronic monitoring, but not locked in the home at night, was not in custody and not entitled to sentence credit. State v. Olson,
226 Wis. 2d 457,
595 N.W.2d 460 (Ct. App. 1999).
973.155 Annotation
"Course of conduct" in sub. (1) (a) means the specific act for which the defendant is sentenced. As such a defendant was not entitled to sentence credit on a later imposed sentence for time already served on sentences arising from the same criminal episode, but different criminal acts. State v. Tuescher,
226 Wis. 2d 465,
595 N.W.2d 443 (Ct. App. 1999).
973.155 Annotation
Pretrial confinement on a dismissed charge that is read in at sentencing relates to an offense for which the offender is ultimately sentenced, entitling the offender to sentence credit. State v. Floyd, 2000 WI 14,
232 Wis. 2d 767,
606 N.W.2d 155.
973.155 Annotation
For sentence credit purposes, an offender's status constitutes custody whenever the offender is subject to an escape charge for leaving that status. State v. Magnuson, 2000 WI 19,
233 Wis. 2d 40,
606 N.W.2d 536.
973.155 Annotation
Boettcher bars a claim for dual credit when the defendant has already received the same credit against a prior sentence that the defendant has already served. State v. Jackson, 2000 WI App 41,
233 Wis. 2d 231,
607 N.W.2d 338.
973.155 Annotation
In a multiple count conviction, when one sentence is imposed and another stayed, applicable sentence credit must be applied to the first imposed sentence, State v. Wolfe, 2001 WI App 66,
242 Wis. 2d 426,
625 N.W.2d 655.
973.155 Annotation
Sentence credit is not to be granted for time spent on electronic monitoring. State ex rel. Simpson v. Schwarz, 2002 WI App 7,
250 Wis. 2d 214,
640 N.W.2d 527.
973.155 Annotation
A person who was unable to serve a sentence upon being informed by the jailer that the jail was overcrowded and that he should return at a later date was absent from the jail through no fault of his own and entitled to sentence credit for the period between when he first reported to the jail and when he later was admitted. State v. Dentici, 2002 WI App 77,
251 Wis. 2d 436,
643 N.W.2d 180.
973.155 AnnotationJail credit may not be granted if it is not provided for by statute.
71 Atty. Gen. 102.
973.155 Annotation
Sentence Credit: More Than Just Math. White. Wis. Law. Oct. 1991.
973.16
973.16
Time out. If an order or judgment releasing a prisoner on habeas corpus is reversed, the time during which the prisoner was at liberty thereunder shall not be counted as part of the prisoner's term.
973.16 History
History: 1993 a. 486.
973.17
973.17
Judgment against a corporation or limited liability company. 973.17(1)(1) If a corporation or limited liability company fails to appear within the time required by the summons, the default of such corporation or limited liability company may be recorded and the charge against it taken as true, and judgment shall be rendered accordingly.
973.17(2)
(2) Upon default of the defendant corporation or limited liability company or upon conviction, judgment for the amount of the fine shall be entered.
973.17(3)
(3) A judgment against a corporation or limited liability company shall be collected in the same manner as in civil actions.
973.17 History
History: 1993 a. 112.
973.18
973.18
Notice of rights to appeal and representation. 973.18(1)(1) In this section, "postconviction relief" and "sentencing" have the meanings ascribed in
s. 809.30 (1).
973.18(2)
(2) The trial judge shall personally inform the defendant at the time of sentencing of the right to seek postconviction relief and, if indigent, the right to the assistance of the state public defender.
973.18(3)
(3) Before adjourning the sentencing proceeding, the judge shall direct the defendant and defendant's trial counsel to sign a form to be entered in the record, indicating that the lawyer has counseled the defendant regarding the decision to seek postconviction relief, and that the defendant understands that a notice of intent to pursue postconviction relief must be filed in the trial court within 20 days after sentencing for that right to be preserved.
973.18(4)
(4) The judge shall direct the defendant's counsel to confer with the defendant before signing the form, during the proceeding or as soon thereafter as practicable, and may make appropriate orders to allow the defendant to confer with counsel before being transferred to the state prison. The defendant shall be given a copy of the form.
973.18(5)
(5) If the defendant desires to pursue postconviction relief, the defendant's trial counsel shall file the notice required by
s. 809.30 (2) (b).
973.18 History
History: Sup. Ct. Order, 123 Wis. 2d xi (1985).
973.18 Note
Judicial Council Note, 1984: Sub. (2) is similar to prior s. 809.30 (1) (b). Subs. (3) and (4) codify State v. Argiz,
101 Wis. 2d 546,
305 N.W.2d 124 (1981). Sub. (5) codifies trial counsel's continuing duty to provide representation until appellate counsel is retained or appointed. Whitmore v. State,
56 Wis. 2d 706, 203 NW 2d 56 (1973). [Re order effective July 1, 1985]
973.19
973.19
Motion to modify sentence. 973.19(1)(a)(a) A person sentenced to imprisonment or the intensive sanctions program or ordered to pay a fine who has not requested the preparation of transcripts under
s. 809.30 (2) may, within 90 days after the sentence or order is entered, move the court to modify the sentence or the amount of the fine.
973.19(2)
(2) Within 90 days after a motion under
sub. (1) (a) is filed, the court shall enter an order either determining the motion or extending the time for doing so by not more than 90 days for cause.
973.19(3)
(3) If an order determining a motion under
sub. (1) (a) is not entered timely under
sub. (2), the motion shall be considered denied and the clerk of the court shall immediately enter an order denying the motion.
973.19(4)
(4) An appeal from an order determining a motion under
sub. (1) (a) is governed by the procedure for civil appeals.
973.19(5)
(5) By filing a motion under
sub. (1) (a) the defendant waives his or her right to file an appeal or postconviction motion under
s. 809.30 (2).
973.19 History
History: Sup. Ct. Order, 123 Wis. 2d xiv (1985);
1991 a. 39.
973.19 Note
Judicial Council Note, 1984: This section is intended as an expeditious alternative to the procedure prescribed in s. 809.30 (2) when the only claim for postconviction relief relates to the severity of the sentence. It is not intended to alter the substantive grounds for such relief and it restores the time limits governing such motions prior to the 1978 revision of the appellate rules.
973.19 Annotation
This section will probably be most frequently used in guilty plea cases, although it is not limited to such cases. However, if the defendant intends to withdraw a guilty plea or file other postconviction motions, s. 809.30 (2) or 974.06 provides the appropriate procedure. Motions under this section should usually be filed by trial counsel without the need for transcripts or for appointment of an appellate public defender. A defendant must elect between the remedies provided by this section and s. 809.30 (2). Filing a motion under this section waives relief under s. 809.30 (2). However, a defendant who has filed a notice of intent to pursue postconviction relief under s. 809.30 (2) (b) may invoke this remedy at any time before transcripts are ordered under s. 809.30 (2). If transcripts are required for prosecution of a motion under sub. (1) (a), they should be sought under
SCR 71.03 (2).
973.19 Annotation
Sub. (4) does not expand the scope of appellate review. [Re Order effective July 1, 1985.]
973.19 Annotation
The trial court's increase of the defendant's sentence based solely on "reflection" did not constitute a valid basis for modification of a sentence. There was no "new factor" justifying a more severe sentence, a prerequisite for sentence reevaluation. Scott v. State,
64 Wis. 2d 54,
218 N.W.2d 350 (1974).
973.19 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).
