302.11 History
History: 1977 c. 266,
353;
1979 c. 221;
1981 c. 266;
1983 a. 66,
528;
1985 a. 27;
1985 a. 332 s.
251 (1);
1987 a. 27,
412;
1989 a. 31 ss.
1629,
1630; Stats. s. 302.11;
1989 a. 107;
1991 a. 39;
1993 a. 79,
97,
194,
289,
483;
1995 a. 77,
448;
1997 a. 133,
275,
283,
284,
295,
326;
1999 a. 188;
2001 a. 16,
109;
2005 a. 344.
302.11 Cross-reference
Cross Reference: See also ss.
DOC 302.21 and
302.30, Wis. adm. code.
302.11 Annotation
The department cannot delegate to a review board the authority to forfeit good time; it cannot affirm the decision of such a board. State ex rel. Farrell v. Schubert,
52 Wis. 2d 351,
190 N.W.2d 529 (1971).
302.11 Annotation
A due process hearing is required for a revocation of a prisoner's good time. The inmate must be given: 1) written notice of the charges; 2) a written statement by the factfinder of the evidence relied on as reasons for the disciplinary action; and 3) an opportunity to call witnesses and present evidence. Steele v. Gray,
64 Wis. 2d 422,
219 N.W.2d 312 (1974).
302.11 Annotation
A defendant convicted of a sex crime who was committed to the department of health and social services for a mandatory examination not to exceed 60 days to determine whether he was in need of specialized treatment was not entitled to credit therefor against a maximum sentence thereafter imposed. Mitchell v. State,
69 Wis. 2d 695,
230 N.W.2d 884 (1975).
302.11 Annotation
Subsequent to the revocation of parole, a mandatory release parolee, or a discretionary parolee whose mandatory release has occurred during parole, is entitled at the discretionary determination of how much good time will be forfeited to at least those due process procedures presently available to a discretionary parole violator in the same situation. Putnam v. McCauley,
70 Wis. 2d 256,
234 N.W.2d 75 (1975).
302.11 Annotation
Due process for disciplinary hearings requires a record sufficient for judicial review. A major change in conditions of confinement gives rise to minimum due process requirements under Wolff v. McDonald,
418 U.S. 539. State ex rel. Irby v. Israel,
95 Wis. 2d 697,
291 N.W.2d 643 (Ct. App. 1980).
302.11 Annotation
A person serving consecutive sentences is subject to revocation and reincarceration for the remainder of both sentences if a parole violation is committed prior to discharge of the first sentence. Ashford v. Division of Hearings and Appeals,
177 Wis. 2d 34,
501 N.W.2d 824 (Ct. App. 1993).
302.11 Annotation
The calculation of mandatory release dates for pre-June 1, 1994 crimes is discussed. State ex. rel. Parker v. Sullivan,
184 Wis. 2d 668,
517 N.W.2d 449 (1994).
302.11 Annotation
An inmate has a constitutionally protected liberty interest in not having a mandatory release date extended. Santiago v. Ware,
205 Wis. 2d 295,
556 N.W.2d 356 (Ct. App. 1996),
95-0079.
302.11 Annotation
Time served on parole does not constitute custody for purposes of determining sentence credit under sub. (7) (a) [now (7) (am)]. Section 304.072 addresses the tolling of time served between an alleged violation and revocation and s. 973.155 addresses credit for days incarcerated; neither requires sentence credit under sub. (7) (a) for probation served. State ex rel. Ludtke v. DOC,
215 Wis. 2d 1,
572 N.W.2d 864 (Ct. App. 1997),
96-1745.
302.11 Annotation
Whether or not a residence has been found for an inmate, he or she must be released on his or her mandatory release date. State ex rel. Olson v. Litscher, 2000 WI App 61,
233 Wis. 2d 685,
608 N.W.2d 425,
99-1082.
302.11 Annotation
The presumptive mandatory release scheme under sub. (1g) does not create a protectible liberty interest in parole. The parole commission may deny mandatory release to otherwise eligible prisoners when, in its discretion, the prisoner either poses a risk to the public or refuses to participate in necessary counseling and treatment. Because a prisoner is not entitled to release on the presumptive mandatory release date, he or she is not entitled to any due process protections. State ex rel. Gendrich v. Litscher, 2001 WI App 163,
246 Wis. 2d 814,
632 N.W.2d 878,
00-3527.
302.11 Annotation
Sub. (7) (am) [formerly (a)] does not distinguish between the portion of an original sentence for felony offenses and the portion of an original sentence for misdemeanor offenses. Darby v. Litscher, 2002 WI App 258,
258 Wis. 2d 270,
655 N.W.2d 129,
02-1018.
302.11 Annotation
Incarcerating a person beyond the termination of his or her sentence without penological justification violates the 8th amendment prohibition against cruel and unusual punishment when it is the product of deliberate indifference. To comply with due process, prison officials cannot ignore an inmate's request to recalculate his or her sentence and must place some procedure in place to address such requests. Russell v. Lazar,
300 F. Supp 2d 316 (2004).
302.11 Annotation
The department is not at this time required by law to restore forfeited good time allowances or immediately to release anyone committed under the sex crimes act whose maximum term of commitment including forfeited good time has not expired. 61 Atty. Gen. 77.
302.11 Annotation
A mandatory release parolee has a protectible interest, including a conditional liberty interest, in being free from involuntary use of psychotropic drugs; Wisconsin procedure imposing administration of these drugs as a parole condition is unconstitutional. Felce v. Feidler,
974 F.2d 1484 (1992).
302.11 Annotation
In the absence of a showing of an abuse of discretion by the department, a prisoner released on parole is not entitled to an absolute discharge because it was granted to other prisoners. Hansen v. Schmidt,
329 F. Supp. 141 (1971).
302.11 Annotation
A prisoner is not entitled to counsel at a hearing at which good time is forfeited for a parole violation. Sanchez v. Schmidt,
352 F. Supp. 628 (1973).
302.11 Annotation
A prisoner whose parole was revoked in May, 1970 was entitled to a hearing prior to revocation of good time credits. Sillman v. Schmidt,
394 F. Supp. 1370 (1975).
302.113
302.113
Release to extended supervision for felony offenders not serving life sentences. 302.113(1)
(1) An inmate is subject to this section if he or she is serving a bifurcated sentence imposed under
s. 973.01.
302.113(3)(a)(a) The warden or superintendent shall keep a record of the conduct of each inmate subject to this section, specifying each infraction of the rules. If an inmate subject to this section violates any regulation of the prison or refuses or neglects to perform required or assigned duties, the department may extend the term of confinement in prison portion of the inmate's bifurcated sentence as follows:
302.113(3)(b)
(b) In addition to the sanctions under
par. (a), if an inmate subject to this section is placed in adjustment, program or controlled segregation status, the department may extend his or her term of confinement in prison portion of the bifurcated sentence by a number of days equal to 50% of the number of days spent in segregation status. In administering this paragraph, the department shall use the definition of adjustment, program or controlled segregation status under departmental rules in effect at the time an inmate is placed in that status.
302.113(3)(bm)
(bm) An inmate subject to this section who files an action or special proceeding, including a petition for a common law writ of certiorari, to which
s. 807.15 applies shall have his or her term of confinement extended by the number of days specified in the court order prepared under
s. 807.15 (3). Upon receiving a court order issued under
s. 807.15, the department shall recalculate the date on which the inmate to whom the order applies will be entitled to release to extended supervision and shall inform the inmate of that date.
302.113(3)(c)
(c) No extension of a term of confinement in prison under this subsection may require an inmate to serve more days in prison than the total length of the bifurcated sentence imposed under
s. 973.01.
302.113(3)(d)
(d) If the term of confinement in prison portion of a bifurcated sentence is increased under this subsection, the term of extended supervision is reduced so that the total length of the bifurcated sentence does not change.
302.113(4)
(4) All consecutive sentences imposed for crimes committed on or after December 31, 1999, shall be computed as one continuous sentence. The person shall serve any term of extended supervision after serving all terms of confinement in prison.
302.113(5)
(5) An inmate may waive entitlement to release to extended supervision if the department agrees to the waiver.
302.113(6)
(6) Before a person is released to extended supervision under this section, the department shall notify the municipal police department and the county sheriff for the area where the person will be residing. The notification requirement does not apply if a municipal department or county sheriff submits to the department a written statement waiving the right to be notified. If applicable, the department shall also comply with
s. 304.063.
302.113(7)
(7) Any inmate released to extended supervision under this section is subject to all conditions and rules of extended supervision until the expiration of the term of extended supervision portion of the bifurcated sentence. The department may set conditions of extended supervision in addition to any conditions of extended supervision required under
s. 302.116, if applicable, or set by the court under
sub. (7m) or
s. 973.01 (5) if the conditions set by the department do not conflict with the court's conditions.
302.113(7m)(a)(a) Except as provided in
par. (e), a person subject to this section or the department may petition the sentencing court to modify any conditions of extended supervision set by the court.
302.113(7m)(b)
(b) If the department files a petition under this subsection, it shall serve a copy of the petition on the person who is the subject of the petition and, if the person is represented by an attorney, on the person's attorney. If a person who is subject to this section or his or her attorney files a petition under this subsection, the person or his or her attorney shall serve a copy of the petition on the department. The court shall serve a copy of a petition filed under this section on the district attorney. The court may direct the clerk of the court to provide notice of the petition to a victim of a crime committed by the person who is the subject of the petition.
302.113(7m)(c)
(c) The court may conduct a hearing to consider the petition. The court may grant the petition in full or in part if it determines that the modification would meet the needs of the department and the public and would be consistent with the objectives of the person's sentence.
302.113(7m)(d)
(d) A person subject to this section or the department may appeal an order entered by the court under this subsection. The appellate court may reverse the order only if it determines that the sentencing court erroneously exercised its discretion in granting or denying the petition.
302.113(7m)(e)1.1. An inmate may not petition the court to modify the conditions of extended supervision earlier than one year before the date of the inmate's scheduled date of release to extended supervision or more than once before the inmate's release to extended supervision.
302.113(7m)(e)2.
2. A person subject to this section may not petition the court to modify the conditions of extended supervision within one year after the inmate's release to extended supervision. If a person subject to this section files a petition authorized by this subsection after his or her release from confinement, the person may not file another petition until one year after the date of filing the former petition.
302.113(8)
(8) Releases to extended supervision from prison shall be on the Tuesday or Wednesday preceding the date on which he or she completes the term of imprisonment.
302.113(8m)(a)(a) Every person released to extended supervision under this section remains in the legal custody of the department. If the department alleges that any condition or rule of extended supervision has been violated by the person, the department may take physical custody of the person for the investigation of the alleged violation.
302.113(8m)(b)
(b) If a person released to extended supervision under this section signs a statement admitting a violation of a condition or rule of extended supervision, the department may, as a sanction for the violation, confine the person for up to 90 days in a regional detention facility or, with the approval of the sheriff, in a county jail. If the department confines the person in a county jail under this paragraph, the department shall reimburse the county for its actual costs in confining the person from the appropriations under
s. 20.410 (1) (ab) and
(b). Notwithstanding
s. 302.43, the person is not eligible to earn good time credit on any period of confinement imposed under this subsection.
302.113(9)(ag)(ag) In this subsection "reviewing authority" means the division of hearings and appeals in the department of administration, upon proper notice and hearing, or the department of corrections, if the person on extended supervision waives a hearing.
302.113(9)(am)
(am) If a person released to extended supervision under this section violates a condition of extended supervision, the reviewing authority may revoke the extended supervision of the person. If the extended supervision of the person is revoked, the person shall be returned to the circuit court for the county in which the person was convicted of the offense for which he or she was on extended supervision, and the court shall order the person to be returned to prison for any specified period of time that does not exceed the time remaining on the bifurcated sentence. The time remaining on the bifurcated sentence is the total length of the bifurcated sentence, less time served by the person in confinement under the sentence before release to extended supervision under
sub. (2) and less all time served in confinement for previous revocations of extended supervision under the sentence. The court order returning a person to prison under this paragraph shall provide the person whose extended supervision was revoked with credit in accordance with
ss. 304.072 and
973.155.
302.113(9)(at)
(at) When a person is returned to court under
par. (am) after revocation of extended supervision, the reviewing authority shall make a recommendation to the court concerning the period of time for which the person should be returned to prison. The recommended time period may not exceed the time remaining on the bifurcated sentence, as calculated under
par. (am).
302.113(9)(b)
(b) A person who is returned to prison after revocation of extended supervision shall be incarcerated for the entire period of time specified by the court under
par. (am). The period of time specified under
par. (am) may be extended in accordance with
sub. (3). If a person is returned to prison under
par. (am) for a period of time that is less than the time remaining on the bifurcated sentence, the person shall be released to extended supervision after he or she has served the period of time specified by the court under
par. (am) and any periods of extension imposed in accordance with
sub. (3).
302.113(9)(c)
(c) A person who is subsequently released to extended supervision after service of the period of time specified by the court under
par. (am) is subject to all conditions and rules under
subs. (7) and, if applicable, (7m) until the expiration of the remaining extended supervision portion of the bifurcated sentence. The remaining extended supervision portion of the bifurcated sentence is the total length of the bifurcated sentence, less the time served by the person in confinement under the bifurcated sentence before release to extended supervision under
sub. (2) and less all time served in confinement for previous revocations of extended supervision under the bifurcated sentence.
302.113(9)(d)
(d) For the purposes of
pars. (am) and
(c), the amount of time a person has served in confinement before release to extended supervision and the amount of time a person has served in confinement for a revocation of extended supervision includes any extensions imposed under
sub. (3).
302.113(9)(e)
(e) If a hearing is to be held under
par. (am) before the division of hearings and appeals in the department of administration, the hearing examiner may order that a deposition be taken by audiovisual means and allow the use of a recorded deposition under
s. 967.04 (7) to
(10).
302.113(9)(f)
(f) A reviewing authority may consolidate proceedings before it under
par. (am) with other proceedings before that reviewing authority under
par. (am) or
s. 302.11 (7) (am) or
302.114 (9) (am) if all of the proceedings relate to the parole or extended supervision of the same person.
302.113(9)(g)
(g) In any case in which there is a hearing before the division of hearings and appeals in the department of administration concerning whether to revoke a person's extended supervision, the person on extended supervision may seek review of a decision to revoke extended supervision and the department of corrections may seek review of a decision to not revoke extended supervision. Review of a decision under this paragraph may be sought only by an action for certiorari.
302.113(9g)(a)1.
1. "Program review committee" means the committee at a correctional institution that reviews the security classifications, institution assignments, and correctional programming assignments of inmates confined in the institution.
302.113(9g)(a)2.
2. "Terminal condition" means an incurable condition afflicting a person, caused by injury, disease, or illness, as a result of which the person has a medical prognosis that his or her life expectancy is 6 months or less, even with available life-sustaining treatment provided in accordance with the prevailing standard of medical care.
302.113(9g)(b)
(b) An inmate who is serving a bifurcated sentence for a crime other than a Class B felony may seek modification of the bifurcated sentence in the manner specified in
par. (f) if he or she meets one of the following criteria:
302.113(9g)(b)1.
1. The inmate is 65 years of age or older and has served at least 5 years of the term of confinement in prison portion of the bifurcated sentence.
302.113(9g)(b)2.
2. The inmate is 60 years of age or older and has served at least 10 years of the term of confinement in prison portion of the bifurcated sentence.
302.113(9g)(c)
(c) An inmate who meets the criteria under
par. (b) may submit a petition to the program review committee at the correctional institution in which the inmate is confined requesting a modification of the inmate's bifurcated sentence in the manner specified in
par. (f). If the inmate alleges in the petition that he or she has a terminal condition, the inmate shall attach to the petition affidavits from 2 physicians setting forth a diagnosis that the inmate has a terminal condition.
302.113(9g)(cm)
(cm) If, after receiving the petition under
par. (c), the program review committee determines that the public interest would be served by a modification of the inmate's bifurcated sentence in the manner provided under
par. (f), the committee shall approve the petition for referral to the sentencing court and notify the department of its approval. The department shall then refer the inmate's petition to the sentencing court and request the court to conduct a hearing on the petition. If the program review committee determines that the public interest would not be served by a modification of the inmate's bifurcated sentence in the manner specified in
par. (f), the committee shall deny the inmate's petition.
302.113(9g)(d)
(d) When a court is notified by the department that it is referring to the court an inmate's petition for modification of the inmate's bifurcated sentence, the court shall set a hearing to determine whether the public interest would be served by a modification of the inmate's bifurcated sentence in the manner specified in
par. (f). The inmate and the district attorney have the right to be present at the hearing, and any victim of the inmate's crime has the right to be present at the hearing and to provide a statement concerning the modification of the inmate's bifurcated sentence. The court shall order such notice of the hearing date as it considers adequate to be given to the department, the inmate, the attorney representing the inmate, if applicable, and the district attorney. Victim notification shall be provided as specified under
par. (g).
302.113(9g)(e)
(e) At a hearing scheduled under
par. (d), the inmate has the burden of proving by the greater weight of the credible evidence that a modification of the bifurcated sentence in the manner specified in
par. (f) would serve the public interest. If the inmate proves that a modification of the bifurcated sentence in the manner specified in
par. (f) would serve the public interest, the court shall modify the inmate's bifurcated sentence in that manner. If the inmate does not prove that a modification of the bifurcated sentence in the manner specified in
par. (f) would serve the public interest, the court shall deny the inmate's petition for modification of the bifurcated sentence.
302.113(9g)(f)
(f) A court may modify an inmate's bifurcated sentence under this section only as follows:
302.113(9g)(f)1.
1. The court shall reduce the term of confinement in prison portion of the inmate's bifurcated sentence in a manner that provides for the release of the inmate to extended supervision within 30 days after the date on which the court issues its order modifying the bifurcated sentence.
302.113(9g)(f)2.
2. The court shall lengthen the term of extended supervision imposed so that the total length of the bifurcated sentence originally imposed does not change.
302.113(9g)(g)2.
2. When a court sets a hearing date under
par. (d), the clerk of the circuit court shall send a notice of hearing to the victim of the crime committed by the inmate, if the victim has submitted a card under
subd. 3. requesting notification. The notice shall inform the victim that he or she may appear at the hearing scheduled under
par. (d) and shall inform the victim of the manner in which he or she may provide a statement concerning the modification of the inmate's bifurcated sentence in the manner provided in
par. (f). The clerk of the circuit court shall make a reasonable attempt to send the notice of hearing to the last-known address of the inmate's victim, postmarked at least 10 days before the date of the hearing.
302.113(9g)(g)3.
3. The director of state courts shall design and prepare cards for a victim to send to the clerk of the circuit court for the county in which the inmate was convicted and sentenced. The cards shall have space for a victim to provide his or her name and address, the name of the applicable inmate, and any other information that the director of state courts determines is necessary. The director of state courts shall provide the cards, without charge, to clerks of circuit court. Clerks of circuit court shall provide the cards, without charge, to victims. Victims may send completed cards to the clerk of the circuit court for the county in which the inmate was convicted and sentenced. All court records or portions of records that relate to mailing addresses of victims are not subject to inspection or copying under
s. 19.35 (1).
302.113(9g)(h)
(h) An inmate may appeal a court's decision to deny the inmate's petition for modification of his or her bifurcated sentence. The state may appeal a court's decision to grant an inmate's petition for a modification of the inmate's bifurcated sentence. In an appeal under this paragraph, the appellate court may reverse a decision granting or denying a petition for modification of a bifurcated sentence only if it determines that the sentencing court erroneously exercised its discretion in granting or denying the petition.
302.113(9g)(i)
(i) If the program review committee denies an inmate's petition under
par. (cm), the inmate may not file another petition within one year after the date of the program review committee's denial. If the program review committee approves an inmate's petition for referral to the sentencing court under
par. (cm) but the sentencing court denies the petition, the inmate may not file another petition under
par. (cm) within one year after the date of the court's decision.
302.113(9g)(j)
(j) An inmate eligible to seek modification of his or her bifurcated sentence under this subsection has a right to be represented by counsel in proceedings under this subsection. An inmate, or the department on the inmate's behalf, may apply to the state public defender for determination of indigency and appointment of counsel under
s. 977.05 (4) (jm) before or after the filing of a petition with the program review committee under
par. (c). If an inmate whose petition has been referred to the court under
par. (cm) is without counsel, the court shall refer the matter to the state public defender for determination of indigency and appointment of counsel under
s. 977.05 (4) (jm).
302.113(10)
(10) The department may promulgate rules establishing guidelines and criteria for the exercise of discretion under this section.
302.113 Annotation
A hearing to determine the length of reconfinement under sub. (9) is a sentencing. All sentences imposed by a circuit court are reviewed by appellate courts to determine whether the court erroneously exercised its discretion. There is a strong public policy against interference with the sentencing discretion of the trial court, and sentences are afforded the presumption that the trial court acted reasonably. State v. Brown, 2006 WI App 44,
05-0584.
302.113 Annotation
While the recommendation of the Department of Corrections may be helpful and should be considered, the trial court owes no due weight deference to the Department's sentencing recommendation submitted to the trial court after the revocation of an offender's extended supervision. State v. Brown, 2006 WI App 44, ___ Wis. 2d ___,
712 N.W.2d 899,
05-0584.
302.114
302.114
Petition for release and release to extended supervision for felony offenders serving life sentences. 302.114(2)
(2) Except as provided in
subs. (3) and
(9), an inmate subject to this section may petition the sentencing court for release to extended supervision after he or she has served 20 years, if the inmate was sentenced under
s. 973.014 (1g) (a) 1., or after he or she has reached the extended supervision eligibility date set by the court, if the inmate was sentenced under
s. 973.014 (1g) (a) 2.
