2003 Chapter 973

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 not entitled to credit against a sentence for time spent under home detention. State v. Pettis, 149 Wis. 2d 207, 441 N.W.2d 247 (Ct. App. 1989). See also State v. Swadley, 190 Wis. 2d 139, 526 N.W.2d 778 (Ct. App. 1994).

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, but, 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 Presentence 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 Annotation Detention at the Wisconsin Resource Center while awaiting evaluation and trial on a petition for commitment as a sexually violent person under Chapter 980 satisfies neither the "in custody" nor "in connection with" requirements of this section. The detention does not qualify for sentence credit under this section. Thorson v. Schwarz, 2004 WI 96, ___ Wis. 2d ___, ___ N.W.2d ___, 02-3380.

973.155 Annotation Jail 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.

973.176 973.176  Notice of restrictions.

973.176(1) (1)  Firearm possession. Whenever a court imposes a sentence or places a defendant on probation regarding a felony conviction, the court shall inform the defendant of the requirements and penalties under s. 941.29.

973.176(2) (2) Voting. Whenever a court imposes a sentence or places a defendant on probation for a conviction that disqualifies the defendant from voting under s. 6.03 (1) (b), the court shall inform the defendant that he or she may not vote in any election until his or her civil rights are restored.

973.176(3) (3) Child sex offender working with children. Whenever a court imposes a sentence or places a defendant on probation regarding a conviction under s. 940.22 (2) or 940.225 (2) (c) or (cm), if the victim is under 18 years of age at the time of the offense, or a conviction under s. 948.02 (1) or (2), 948.025 (1), 948.05 (1) or (1m), 948.06, 948.07 (1), (2), (3), or (4), or 948.075, the court shall inform the defendant of the requirements and penalties under s. 948.13.

973.176 History History: 2003 a. 121 ss. 2, 3, 5.

973.176 Annotation Failure to give the warning under this section does not prevent a conviction under s. 941.29. State v. Phillips, 172 Wis. 2d 391, 493 N.W.2d 270 (Ct. App. 1992).

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) (1) 

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(1)(b) (b) A person who has requested transcripts under s. 809.30 (2) may move for modification of a sentence or fine under s. 809.30 (2) (h).

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).

973.19 Annotation There are two alternative means to seek modification of a sentence; proceeding under sub. (1) (a) or (b). Under either, a motion must be first made in the trial court. State v. Norwood, 161 Wis. 2d 676, 468 N.W.2d 741 (Ct. App. 1991).

973.19 Annotation Rehabilitation may not be considered as a "new factor" for purposes of modifying an already imposed sentence. State v. Kluck, 210 Wis. 2d 1, 563 N.W.2d 468 (1997).

973.19 Annotation A "new factor" justifying sentence modification is a fact that is highly relevant but not known by the judge at the time of sentencing because it did not exist or was unknowingly overlooked. The new factor must operate to frustrate the sentencing court's original intent. State v. Johnson, 210 Wis. 2d 197, 565 N.W.2d 191 (Ct. App. 1997).

973.19 Annotation A defendant's sentence may be modified if there is some "new factor." Post-sentencing conduct does not constitute a new factor. State v. Scaccio, 2000 WI App 265, 240 Wis. 2d 95, 622 N.W.2d 449.

973.19 Annotation A defendant subject to a post-probation revocation sentence cannot use s. 809. 30 and sub. (1) (b) to raise issues that go the original judgment, but the defendant may take a direct appeal from a subsequent judgment in order to fully litigate issues initially raised by the resentencing. State v. Scaccio, 2000 WI App 265, 240 Wis. 2d 95, 622 N.W.2d 449.

973.19 Annotation Under the facts of the case, information presented to the court that had a direct bearing on the length of the sentence that proved to be incorrect was a "new factor" warranting sentence modification. State v. Norton, 2001 WI App 245, 248 Wis. 2d 162, 635 N.W.2d 656.

973.19 Annotation A circuit court has the inherent power to modify a previously imposed sentence after the sentence has commenced, but it may not reduce a sentence merely upon reflection or second thoughts. A court may do so on the basis of new factors or when it concludes its original sentence was unduly harsh or unconscionable. A court's altered view of facts known to the court at sentencing, or a reweighing of their significance, does not constitute a new factor for sentencing purposes but is mere reflection or second thoughts. State v. Grindemann, 2002 WI App 106, 255 Wis. 2d 632, 648 N.W.2d 507.

973.19 Annotation A circuit court should proceed in a fashion similar to that outlined in s. 974.06 (3) when it receives a motion requesting sentence modification. State v. Grindemann, 2002 WI App 106, 255 Wis. 2d 632, 648 N.W.2d 507.

973.19 Annotation A defendant can seek sentence modification in two ways: 1) moving for modification as a matter of right under this section, to assert an erroneous exercise of discretion based on excessiveness, undue harshness, or unconscionability, or 2) moving for discretionary review, invoking the inherent power of the circuit court, which applies only if a new factor justifying sentence modification exists, in which case, the timeliness requirements of this section are inapplicable. State v. Noll, 2002 WI App 273, 258 Wis. 2d 573, 653 N.W.2d 895.

973.19 Annotation A mental health professional who conducted a psychological assessment of a defendant convicted of sexual assault, which was incorporated into the presentence investigation report and admitted into evidence at the sentencing hearing, had a conflict of interest due to the fact that she had treated the victim in the case. The conflict of interest is a new factor justifying the modification of the sentence. State v. Stafford, 2003 WI App 138, 265 Wis. 2d 886, 667 N.W.2d 370, 02-0544.

973.19 Annotation The adoption of Truth-in-Sentencing, s. 973.01, did not affect existing "new factor" jurisprudence. State v. Crochiere, 2004 WI 78, ___ Wis. 2d ___, 681 N.W.2d 524, 02-1809.

973.19 Annotation A change in the classification of a crime under the 2003 revisions to the sentencing laws was not a new factor for sentence modification purposes. State v. Longmire, 2004 WI App 90, ___ Wis. 2d ___, 681 N.W.2d 354, 03-0300.

973.195 973.195  Sentence adjustment.

973.195(1g) (1g)  Definition. In this section, "applicable percentage" means 85% for a Class C to E felony and 75% for a Class F to I felony.

973.195(1r) (1r) Confinement in prison.

973.195(1r)(a) (a) An inmate who is serving a sentence imposed under s. 973.01 for a crime other than a Class B felony may petition the sentencing court to adjust the sentence if the inmate has served at least the applicable percentage of the term of confinement in prison portion of the sentence. If an inmate is subject to more than one sentence imposed under this section, the sentences shall be treated individually for purposes of sentence adjustment under this subsection.

973.195(1r)(b) (b) Any of the following is a ground for a petition under par. (a):

973.195(1r)(b)1. 1. The inmate's conduct, efforts at and progress in rehabilitation, or participation and progress in education, treatment, or other correctional programs since he or she was sentenced.

973.195(1r)(b)3. 3. A change in law or procedure related to sentencing or revocation of extended supervision effective after the inmate was sentenced that would have resulted in a shorter term of confinement in prison or, if the inmate was returned to prison upon revocation of extended supervision, a shorter period of confinement in prison upon revocation, if the change had been applicable when the inmate was sentenced.

973.195(1r)(b)4. 4. The inmate is subject to a sentence of confinement in another state or the inmate is in the United States illegally and may be deported.

973.195(1r)(b)5. 5. Sentence adjustment is otherwise in the interests of justice.

973.195(1r)(c) (c) Upon receipt of a petition filed under par. (a), the sentencing court may deny the petition or hold the petition for further consideration. If the court holds the petition for further consideration, the court shall notify the district attorney of the inmate's petition. If the district attorney objects to adjustment of the inmate's sentence within 45 days of receiving notification under this paragraph, the court shall deny the inmate's petition.

973.195(1r)(d) (d) If the sentence for which the inmate seek's adjustment is for an offense under s. 940.225 (2) or (3), 948.02 (2), or 948.08 and the district attorney does not object to the petition within 10 days of receiving notice under par. (c), the district attorney shall notify the the victim, as defined under s. 950.02 (4), of the inmate's petition. The notice to the victim shall include information on the sentence adjustment petition process under this subsection, including information on how to object to the inmate's petition. If the victim objects to adjustment of the inmate's sentence within 45 days of the date on which the district attorney received notice under par. (c), the court shall deny the inmate's petition.

973.195(1r)(e) (e) Notwithstanding the confidentiality of victim address information obtained under s. 302.113 (9g) (g) 3., a district attorney who is required to send notice to a victim under par. (d) may obtain from the clerk of the circuit court victim address information that the victim provided to the clerk under s. 302.113 (9g) (g) 3.

973.195(1r)(f) (f) If the sentencing court receives no objection to sentence adjustment from the district attorney under par. (c) or the victim under par. (d) and the court determines that sentence adjustment is in the public interest, the court may adjust the inmate's sentence as provided under par. (g). The court shall include in the record written reasons for any sentence adjustment granted under this subsection.

973.195(1r)(g) (g) Except as provided under par. (h), the only sentence adjustments that a court may make under this subsection are as follows:

973.195(1r)(g)1. 1. If the inmate is serving the term of confinement in prison portion of the sentence, a reduction in the term of confinement in prison by the amount of time remaining in the term of confinement in prison portion of the sentence, less up to 30 days, and a corresponding increase in the term of extended supervision.

973.195(1r)(g)2. 2. If the inmate is confined in prison upon revocation of extended supervision, a reduction in the amount of time remaining in the period of confinement in prison imposed upon revocation, less up to 30 days, and a corresponding increase in the term of extended supervision.

973.195(1r)(h) (h)

973.195(1r)(h)1. 1. If the court adjusts a sentence under par. (g) on the basis of a change in law or procedure as provided under par. (b) 3. and the total sentence length of the adjusted sentence is greater than the maximum sentence length that the offender could have received if the change in law or procedure had been applicable when the inmate was originally sentenced, the court may reduce the length of the term of extended supervision so that the total sentence length does not exceed the maximum sentence length that the offender could have received if the change in law or procedure had been applicable when the inmate was originally sentenced.