939.615(5)(c)
(c) The department may decide not to charge a fee under
par. (b) to any person placed on lifetime supervision while he or she meets any of the following conditions:
939.615(5)(c)2.
2. Is pursuing a full-time course of instruction approved by the department.
939.615(5)(c)3.
3. Is undergoing treatment approved by the department and is unable to work.
939.615(5)(c)4.
4. Has a statement from a physician certifying to the department that the person should be excused from working for medical reasons.
939.615(6)
(6) Petition for termination of lifetime supervision. 939.615(6)(a)(a) Subject to
par. (b), a person placed on lifetime supervision under this section may file a petition requesting that lifetime supervision be terminated. A person shall file a petition requesting termination of lifetime supervision with the court that ordered the lifetime supervision.
939.615(6)(b)1.1. A person may not file a petition requesting termination of lifetime supervision if he or she has been convicted of a crime that was committed during the period of lifetime supervision.
939.615(6)(b)2.
2. A person may not file a petition requesting termination of lifetime supervision earlier than 15 years after the date on which the period of lifetime supervision began. If a person files a petition requesting termination of lifetime supervision at any time earlier than 15 years after the date on which the period of lifetime supervision began, the court shall deny the petition without a hearing.
939.615(6)(c)
(c) Upon receiving a petition requesting termination of lifetime supervision, the court shall send a copy of the petition to the district attorney responsible for prosecuting the serious sex offense that was the basis for the order of lifetime supervision. Upon receiving a copy of a petition sent to him or her under this paragraph, a district attorney shall conduct a criminal history record search to determine whether the person has been convicted of a criminal offense that was committed during the period of lifetime supervision. No later than 30 days after the date on which he or she receives the copy of the petition, the district attorney shall report the results of the criminal history record search to the court and may provide a written response to the petition.
939.615(6)(d)
(d) After reviewing the report of the district attorney submitted under
par. (c) concerning the results of a criminal history record search, the court shall do whichever of the following is applicable:
939.615(6)(d)1.
1. If the report of the district attorney indicates that the person filing the petition has been convicted of a criminal offense that was committed during the period of lifetime supervision, the court shall deny the person's petition without a hearing.
939.615(6)(d)2.
2. If the report of the district attorney indicates that the person filing the petition has not been convicted of a criminal offense that was committed during the period of lifetime supervision, the court shall order the person to be examined under
par. (e), shall notify the department that it may submit a report under
par. (em) and shall schedule a hearing on the petition to be conducted as provided under
par. (f).
939.615(6)(e)
(e) A person filing a petition requesting termination of lifetime supervision who is entitled to a hearing under
par. (d) 2. shall be examined by a person who is either a physician or a psychologist licensed under
ch. 455 and who is approved by the court. The physician or psychologist who conducts an examination under this paragraph shall prepare a report of his or her examination that includes his or her opinion of whether the person petitioning for termination of lifetime supervision is a danger to public. The physician or psychologist shall file the report of his or her examination with the court within 60 days after completing the examination, and the court shall provide copies of the report to the person filing the petition and the district attorney who received a copy of the person's petition under
par. (c). The contents of the report shall be confidential until the physician or psychologist testifies at a hearing under
par. (f). The person petitioning for termination of lifetime supervision shall pay the cost of an examination required under this paragraph.
939.615(6)(em)
(em) After it receives notification from the court under
par. (d) 2., the department may prepare and submit to the court a report concerning a person who has filed a petition requesting termination of lifetime supervision. If the department prepares and submits a report under this paragraph, the report shall include information concerning the person's conduct while on lifetime supervision and an opinion as to whether lifetime supervision of the person is still necessary to protect the public. When a report prepared under this paragraph has been received by the court, the court shall, before the hearing under
par. (f), disclose the contents of the report to the attorney for the person who filed the petition and to the district attorney. When the person who filed the petition is not represented by an attorney, the contents shall be disclosed to the person.
939.615(6)(f)
(f) A hearing on a petition requesting termination of lifetime supervision may not be conducted until the person filing the petition has been examined and a report of the examination has been filed as provided under
par. (e). At the hearing, the court shall take evidence it considers relevant to determining whether lifetime supervision should be continued because the person who filed the petition is a danger to the public. The person who filed the petition and the district attorney who received the petition under
par. (c) may offer evidence relevant to the issue of the person's dangerousness and the continued need for lifetime supervision.
939.615(6)(g)
(g) The court may grant a petition requesting termination of lifetime supervision if it determines after a hearing under
par. (f) that lifetime supervision is no longer necessary to protect the public.
939.615(6)(h)
(h) If a petition requesting termination of lifetime supervision is denied after a hearing under
par. (f), the person may not file a subsequent petition requesting termination of lifetime supervision until at least 3 years have elapsed since the most recent petition was denied.
939.615(6)(i)
(i) If the court grants a petition requesting termination of lifetime supervision and the person is registered with the department under
s. 301.45, the court may also order that the person is no longer required to comply with the reporting requirements under
s. 301.45. This paragraph does not apply to a person who must continue to comply with the reporting requirements for life under
s. 301.45 (5) (b) or for as long as he or she is in this state under
s. 301.45 (5m) (b).
939.615(7)
(7) Penalty for violation of a condition of lifetime supervision. 939.615(7)(a)(a) No person placed on lifetime supervision under this section may knowingly violate a condition or regulation of lifetime supervision established by the court or by the department.
939.615(7)(b)1.1. Except as provided in
subd. 2., whoever violates
par. (a) is guilty of a Class A misdemeanor.
939.615(7)(b)2.
2. Whoever violates
par. (a) is guilty of a Class I felony if the same conduct that violates
par. (a) also constitutes a crime that is a felony.
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.
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.
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.
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)(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.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.
939.62(2m)(a)2m.b.
b. Any felony under s.
940.09 (1), 1999 stats., s.
943.23 (1m) or
(1r), 1999 stats., s.
948.35 (1) (b) or
(c), 1999 stats., or s.
948.36, 1999 stats., or
s. 940.01,
940.02,
940.03,
940.05,
940.09 (1c),
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),
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, or
948.30 (2).
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. 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 ch. 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
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,
255 Wis. 2d 589,
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,
256 Wis. 2d 697,
649 N.W.2d 325.
939.62 Annotation
A defendant convicted of a second or subsequent OWI is subject to the penalty enhancements provided for in both ss. 346.65 (2) and 939.62, if the application of each enhancer is based on a separate and distinct prior conviction or convictions. State v. Delaney, 2003 WI 9,
259 Wis. 2d 77,
658 N.W.2d 416,
01-1051.
939.62 Annotation
A defendant convicted of a second or subsequent controlled substance offense is subject to the penalty enhancements provided for in both ss. 939.62 and 961.48 (2) if the application of each enhancer is based on a separate and distinct prior conviction or convictions. State v. Maxey, 2003 WI App 94,
264 Wis. 2d 878,
663 N.W.2d 811,
02-1171.
939.62 Annotation
In determining whether a prior offense was a serious child sex offense under sub. (2m) a court may apply an elements only test but may also conduct a comparable analysis by considering whether the defendant's conduct under the statute governing the prior conviction would constitute a felony under the current statute. State v. Wield, 2003 WI App 179,
266 Wis. 2d 872,
668 N.W.2d 823,
02-2242.
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.
939.623
939.623
Increased penalty; repeat serious sex crimes.
