973.09 Annotation
There is no statutory authority to order, as a condition of probation, payment of restitution obligations in a separate criminal case. State v. Torpen, 2001 WI App 273,
248 Wis. 2d 951,
637 N.W.2d 481,
01-0182.
973.09 Annotation
Probation is permitted under sub. (1) (d) for 4th and subsequent OWI violations as long as the probation requires confinement for at least the mandatory minimum time period under s. 346.65. State v. Eckola, 2001 WI App 295,
249 Wis. 2d 276,
638 N.W.2d 903,
01-1044.
973.09 Annotation
Revocation hearing examiners must specifically find that good cause exists for not allowing confrontation of adverse witnesses, but failure to do so does not require automatic reversal. Good cause should generally be based upon a balancing of the need of the probationer in cross-examining the witness and the interest of the state in denying confrontation, including consideration of the reliability of the evidence and the difficulty, expense, or other barriers to obtaining live testimony. State ex rel. Simpson v. Schwarz, 2002 WI App 7,
250 Wis. 2d 214,
640 N.W.2d 527,
01-0008.
973.09 Annotation
The right against self-incrimination survives conviction and remains active while a direct appeal is pending. A probationer may be compelled to answer self-incriminating questions from a probation or parole agent, or suffer revocation for refusing to do so, only if there is a grant of immunity rendering the testimony inadmissible in a criminal prosecution. State ex rel. Tate v. Schwarz, 2002 WI 127,
257 Wis. 2d 40,
654 N.W.2d 438,
00-1635.
973.09 Annotation
When a statutory definition is available that provides a defendant with sufficient notice as to the expected course of conduct and an ascertainable standard for enforcement, the condition is not unconstitutionally vague. The definition of "dating relationship" in s. 813.12 (1) (ag) 1. provided the appellant an objective standard and adequate notice of when a condition applied that required her to introduce any person she was "dating" to her supervising agent. State v. Koenig, 2003 WI App 12,
259 Wis. 2d 833,
656 N.W.2d 499,
02-1076.
973.09 Annotation
It is not required that a defendant's rejection of probation be clear and unequivocal. A court's focus should be on whether a defendant communicates the intent to refuse probation rather than on the defendant's choice of words. State v. Pote, 2003 WI App 31,
260 Wis. 2d 426,
659 N.W.2d 82,
02-0670.
973.09 Annotation
Section 302.425 allows the sheriff to place persons on home monitoring when they are given jail time as a probation condition. A circuit court may not prohibit the sheriff from ordering home monitoring for a probationer ordered to serve jail time as a probation condition. By precluding the sheriff from releasing the probation on home monitoring, the trial court substantially interfered with the sheriff's power in violation of the separation of powers doctrine. State v. Schell, 2003 WI App 78,
261 Wis. 2d 841,
661 N.W.2d 503.
973.09 Annotation
Sex-offender registration as a condition of bail-jumping probation was not authorized by sub. (1) (a). Bail jumping is not one of the offenses enumerated in the sex-offender registration statutes, ss. 973.048 or 301.45, that permit or require registration, and read-in, but dismissed, sexual assault charges do not bring a case within s. 973.048. State v. Martel, 2003 WI 70,
262 Wis. 2d 483,
664 N.W.2d 69,
02-1599.
973.09 Annotation
A trial court has the discretionary authority to stay a probationer's conditional jail time while he or she is hospitalized. When the trial court chooses to stay confinement time, the probationer is not a prisoner and is not entitled to credit against such confinement time because the probationer could not be charged with escape. State v. Edwards, 2003 WI App 221,
267 Wis. 2d 491,
671 N.W.2d 371,
03-0790.
973.09 Annotation
An agreement that provided that following a plea of no contest, the defendant would have the opportunity prior to sentencing to procure and return stolen items, and if so the state would amend the charge to a lesser offense and the sentencing would proceed accordingly, was not invalid under Hayes. The concerns of the Hayes court regarding the limitations of the probation statute and the trial court's lack of authority to amend a judgment after completion of a sentence were not implicated. State v. Cash, 2004 WI App 63,
271 Wis. 2d 451,
677 N.W.2d 709,
03-1614.
973.09 Annotation
A court cannot avoid the holding in Schell by modifying the conditions of probation to order the probationer to refuse home monitoring. State v. Galecke, 2005 WI App 172,
285 Wis. 2d 691,
702 N.W.2d 392,
04-0779.
973.09 Annotation
Convicted at the same time under sub. (2) (a) or (b) is not the same as sentenced at the same time. Because the defendant, although sentenced in separate child support and drug cases at a single hearing, was not convicted at the same time within the meaning of the statute, and therefore not serving a single probationary term, the trial court had the statutory authority to order consecutive periods of conditional jail time exceeding one year in total. State v. Johnson, 2005 WI App 202,
287 Wis. 2d 313,
704 N.W.2d 318,
04-2176.
973.09 Annotation
Sub. (2) plainly and unambiguously provides that the maximum term of probation is dependent upon the maximum term of confinement for the crime committed and not the maximum term of imprisonment. The maximum term of probation for Class B to H felonies equals the maximum initial term of confinement for those crimes. State v. Stewart, 2006 WI App 67, ___ Wis. 2d ___,
713 N.W.2d 165,
05-0979.
973.09 Annotation
Conditions of probation may impinge upon constitutional rights as long as they are not overly broad and are reasonably related to the person's rehabilitation. Geographical limitations, while restricting a defendant's rights to travel and associate, are not per se unconstitutional. Each case must be analyzed on its facts to determine whether the geographic restriction is narrowly drawn. State v. Stewart, 2006 WI App 67, ___ Wis. 2d ___,
713 N.W.2d 165,
05-0979.
973.09 Annotation
A civil settlement agreement can have no effect upon a restitution order while the defendant is on probation unless the circuit court first finds that continued enforcement of the restitution order would result in a double recovery for the victim. After a defendant is released from probation and any unpaid restitution becomes a civil judgment, however, a settlement agreement between the victim and the defendant may preclude the victim from enforcing the judgment. Huml v. Vlazny, 2006 WI 87, ___ Wis. 2d ___,
716 N.W.2d 807,
04-0036.
973.09 Annotation
When a defendant agrees to reimburse the county for the attorney fees of standby counsel or the circuit court informs the defendant of his or her potential liability for the fees and standby counsel functions as traditional defense counsel, ss. 973.06 (1) (e) and 973.09 (1g) give a circuit court the authority to impose the attorney fees of standby counsel as a condition of probation. If a defendant does not agree to reimburse the county or is not informed of the potential obligation to pay the fees of standby counsel, payment of attorney fees may not be a condition of probation, under s. 973.06 (1) (e). When standby counsel acts primarily for the benefit of the court rather than as defense counsel, attorney fees for standby counsel are inappropriate. State v. Campbell, 2006 WI 99, ___ Wis. 2d ___,
718 N.W.2d 649,
04-0803.
973.09 Annotation
Sub. (2) applies to all sentences pronounced at the same time, whether grouped together, because they are related or because of convenience. U.S. v. Stalbaum,
63 F.3d 537 (1995).
973.10
973.10
Control and supervision of probationers. 973.10(1)(1) Imposition of probation shall have the effect of placing the defendant in the custody of the department and shall subject the defendant to the control of the department under conditions set by the court and rules and regulations established by the department for the supervision of probationers, parolees and persons on extended supervision.
973.10(1m)(a)(a) The department may order that a probationer perform community service work for a public agency or a nonprofit charitable organization. An order may apply only if agreed to by the probationer and the organization or agency. The department shall ensure that the probationer is provided a written statement of the terms of the community service order and shall monitor the probationer's compliance with the community service order. Compliance with this subsection does not entitle a probationer to credit under
s. 973.155.
973.10(1m)(b)
(b) Any organization or agency acting in good faith to which a probationer is assigned under an order under this subsection has immunity from any civil liability in excess of $25,000 for acts or omissions by or impacting on the probationer. The department has immunity from any civil liability for acts or omissions by or impacting on the probationer regarding the assignment under this subsection.
973.10(2)
(2) If a probationer violates the conditions of probation, the department of corrections may initiate a proceeding before the division of hearings and appeals in the department of administration. Unless waived by the probationer, a hearing examiner for the division shall conduct an administrative hearing and enter an order either revoking or not revoking probation. Upon request of either party, the administrator of the division shall review the order. If the probationer waives the final administrative hearing, the secretary of corrections shall enter an order either revoking or not revoking probation. If probation is revoked, the department shall:
973.10(2)(a)
(a) If the probationer has not already been sentenced, order the probationer brought before the court for sentence which shall then be imposed without further stay under
s. 973.15; or
973.10(2)(b)
(b) If the probationer has already been sentenced, order the probationer to prison, and the term of the sentence shall begin on the date the probationer enters the prison.
973.10(2g)
(2g) Upon demand prior to a revocation hearing under
sub. (2), the district attorney shall disclose to a defendant the existence of any audiovisual recording of an oral statement of a child under
s. 908.08 which is within the possession, custody or control of the state and shall make reasonable arrangements for the defendant and defense counsel to view the statement. If, after compliance with this subsection, the state obtains possession, custody or control of such a statement, the district attorney shall promptly notify the defendant of that fact and make reasonable arrangements for the defendant and defense counsel to view the statement.
973.10(2m)
(2m) In any administrative hearing under
sub. (2), 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).
973.10(3)
(3) A copy of the order of the department of corrections in the case of a waiver or the division of hearings and appeals in the department of administration in the case of a final administrative hearing is sufficient authority for the officer executing it to take the probationer to court or to prison. The officer shall execute the order as a warrant for arrest but any officer may, without order or warrant, take the probationer into custody whenever necessary in order to prevent escape or enforce discipline or for violation of probation.
973.10(4)
(4) The division of hearings and appeals in the department of administration shall make either an electronic or stenographic record of all testimony at each probation revocation hearing. The division shall prepare a written transcript of the testimony only at the request of a judge who has granted a petition for judicial review of the revocation decision. Each hearing notice shall include notice of the provisions of this subsection and a statement that any person who wants a written transcript may record the hearing at his or her own expense.
973.10 Cross-reference
Cross Reference: See also ss.
DOC 330.02 and
331.01, Wis. adm. code.
973.10 Note
Judicial Council Note, 1981: Sub. (2) (a) has been amended to clarify that, upon revocation of probation of an offender from whom sentence was originally withheld, the court must impose sentence in accordance with s. 973.15. That section now permits the court to order that any sentence be concurrent with or consecutive to any sentence imposed at the same time or previously. [Bill 341-A]
973.10 Annotation
Before probation can be revoked, the department must hold a hearing and make a record so that on judicial review it can be determined whether the department acted arbitrarily or capriciously. The hearing need not be formal. State ex rel. Johnson v. Cady,
50 Wis. 2d 540,
185 N.W.2d 306 (1971).
973.10 Annotation
Revocation of probation is an integral part of the sentencing process; a defendant is entitled to assistance of counsel at parole or probation revocation hearings without regard to whether the hearing occurs in a withheld sentence or a postsentence situation. Oestrich v. State,
55 Wis. 2d 222,
198 N.W.2d 664 (1974).
973.10 Annotation
Since probation revocation hearings are independent from the original conviction and sentencing, a judge disqualified in the original case may preside at the hearing in the absence of a challenge. State v. Fuller,
57 Wis. 2d 408,
204 N.W.2d 452 (1973).
973.10 Annotation
ABA standards relating to probation are adopted and applied. State ex rel. Plotkin v. DHSS,
63 Wis. 2d 535,
217 N.W.2d 641 (1974).
973.10 Annotation
A certiorari proceeding in the committing court to review a revocation of parole or probation is not a criminal proceeding. State ex rel. Hanson v. DHSS,
64 Wis. 2d 367,
219 N.W.2d 267 (1974).
973.10 Annotation
The right to counsel at a preliminary revocation hearing is within the discretion of the department based on the need to meet the applicable due process requirements. State ex rel. Hawkins v. Gagnon,
64 Wis. 2d 394,
219 N.W.2d 252 (1974).
973.10 Annotation
A defendant whose probation was transferred to Tennessee and who was charged with a violation of probation there was denied due process when the revocation hearing was held in Wisconsin and the department refused to allow deposition of witnesses in Tennessee. When the witnesses' testimony is of a direct and unequivocally exculpatory nature rather than cumulative, character, or background testimony that might have been adequately presented by deposition or affidavit, an opportunity to present live testimony with cross-examination of the witnesses is required. State ex rel. Harris v. Schmidt,
69 Wis. 2d 668,
230 N.W.2d 890 (1975).
973.10 Annotation
Department probation files and records are public records and admissible at a probation revocation hearing. State ex rel. Prellwitz v. Schmidt,
73 Wis. 2d 35,
242 N.W.2d 227 (1976).
973.10 Annotation
Time spent in jail awaiting revocation is deducted from a maximum sentence despite the option available to the defendant to spend the time in prison. State ex rel. Solie v. Schmidt,
73 Wis. 2d 76,
242 N.W.2d 244 (1976).
973.10 Annotation
When the department overrules its hearing examiner and revokes probation, it must provide a statement of the evidence relied upon and the reasons for revoking probation. Ramaker v. State,
73 Wis. 2d 563,
243 N.W.2d 534 (1976).
973.10 Annotation
A warrantless search by a probation officer was constitutionally permissible when probable cause existed for the officer's attempt to determine whether the probationer had violated probation. State v. Tarrell,
74 Wis. 2d 647,
247 N.W.2d 696 (1976).
973.10 Annotation
The trial court had no authority to extend the probation of a defendant brought before the court under sub. (2). State v. Balgie,
76 Wis. 2d 206,
251 N.W.2d 36 (1977).
973.10 Annotation
The court exceeded its jurisdiction by releasing the defendant on bail pending revocation proceedings. State ex rel. DHSS v. Second Judicial Circuit Court,
84 Wis. 2d 707,
267 N.W.2d 373 (1978).
973.10 Annotation
Equal protection does not require symmetry in probation and parole systems. State v. Aderhold,
91 Wis. 2d 306,
284 N.W.2d 108 (Ct. App. 1979).
973.10 Annotation
A probationer's due process right to prompt revocation proceedings was not triggered when the probationer was detained as a result of unrelated criminal proceedings. State ex rel. Alvarez v. Lotter,
91 Wis. 2d 329,
283 N.W.2d 408 (Ct. App. 1979).
973.10 Annotation
Probation can be revoked for violation of a criminal statute absent a written probation agreement. State ex rel. Rodriguez v. DH&SS,
133 Wis. 2d 47,
393 N.W.2d 105 (Ct. App. 1986).
973.10 Annotation
A probation officer may conduct a warrantless search. That the underlying conviction is subsequently overturned does not retroactively invalidate a warrantless search by the probation officer. State v. Angiolo,
207 Wis. 2d 561,
558 N.W.2d 701 (Ct. App. 1996),
96-0099.
973.10 Annotation
A probationer has a right to a competency determination when during a revocation proceeding the administrative law judge has reason to doubt the probationer's competence. The determination shall be made by the circuit court in the county of sentencing, which shall adhere to ss. 971.13 and 971.14 to the extent practicable. State ex rel. Vanderbeke v. Endicott,
210 Wis. 2d 502,
563 N.W.2d 883 (1997),
95-0907.
973.10 Annotation
Because an administrative decision may be reviewed upon a timely petition for certiorari, an adequate remedy exists at law to correct defects and relief under habeas corpus will not be granted. State ex rel. Reddin v. Galster,
215 Wis. 2d 179,
572 N.W.2d 505 (Ct. App. 1998),
97-0111.
973.10 Annotation
A certiorari proceeding to review a probation revocation must be heard in the circuit court of conviction, but it need not be by the same branch. Drow v. Schwarz,
225 Wis. 2d 362,
592 N.W.2d 623 (1999),
97-1867.
973.10 Annotation
Sub (2) is constitutional. Probation and probation revocation are within the powers shared by the branches of government. Legislative delegation of revocation to the executive branch does not unduly burden or substantially interfere with the judiciary's constitutional function to impose criminal penalties. State v. Horn,
226 Wis. 2d 637,
594 N.W.2d 772 (1999),
97-2751.
973.10 Annotation
When a probationer or parolee is charged with a crime and may have otherwise violated conditions of release, revocation hearings based on the non-criminal violations should be held without delay. 65 Atty. Gen. 20.
973.10 Annotation
A state may require probation officers, among other "peace officers," to be U.S. citizens. Cabel v. Chavez-Solido,
454 U.S. 432 (1982).
973.10 Annotation
Revocation of probation without a hearing is a denial of due process. Hahn v. Burke,
430 F.2d 100 (1970).
973.10 Annotation
A probation revocation hearing may be administrative. Retained or appointed counsel must be allowed to participate. Gunsolus v. Gagnon,
454 F.2d 416 (1971).
973.10 Annotation
Probation revocation; right to a hearing and to counsel. 1971 WLR 648.
973.10 Annotation
Probation and parole revocation in Wisconsin. 1977 WLR 503.
973.11
973.11
Placements with volunteers in probation program. 973.11(1)(1)
Placements. If a person is convicted of or pleads guilty or no contest to one or more misdemeanors for which either mandatory periods of imprisonment are not required or the person is sentenced under
s. 346.65 (2) (bm) or
(cm),
(2j) (bm) or
(cm), or
(3r), if the chief judge of the judicial administrative district has approved a volunteers in probation program established in the applicable county, and if the court decides that volunteer supervision under the program will likely benefit the person and the community and subject to the limitations under
sub. (3), the court may withhold sentence or judgment of conviction and order that the person be placed with that volunteers in probation program. A person's participation in the program may not be used to conceal, withhold, or mask information regarding the judgment of conviction if the conviction is required to be included in a record kept under
s. 343.23 (2) (a). Except as provided in
sub. (3), the order shall provide any conditions that the court determines are reasonable and appropriate and may include, but need not be limited to, one or more of the following:
973.11(1)(a)
(a) A directive to a volunteer to provide one or more of the following functions for the defendant:
973.11(2)
(2) Approval of programs. In each judicial administrative district under
s. 757.60, the chief judge of the district may approve volunteers in probation programs established in the district for placements under this section.
973.11(3)
(3) Status. A defendant who is placed with a volunteers in probation program under
sub. (1) is subject to the conditions set by the court. The defendant is not on probation under
ss. 973.09 and
973.10 and the department is not responsible for supervising him or her. A court may place a defendant under
sub. (1) prior to conviction only if a deferred prosecution agreement is reached under
s. 971.40. In that case, the person is subject to the conditions set by the court under this section and the conditions provided in the agreement.
973.11(4)
(4) Term. The court shall set the length of the order, which may not exceed 2 years unless extended pursuant to a hearing under
sub. (5). When the defendant has satisfied the conditions of the order, the court shall discharge the defendant and dismiss the charges against the defendant if a judgment of conviction was not previously entered.
973.11(5)(a)(a) If the defendant is alleged to have violated the conditions of an order under
sub. (1), the court may hold a hearing regarding the allegations. The court shall notify the defendant at least 7 days prior to holding any such hearing. At the hearing, the defendant has the right to each of the following:
973.11(5)(b)
(b) The court may extend the period of supervision for up to 45 days to accommodate a hearing under this subsection.
973.11(5)(c)
(c) Failure of the defendant to appear at a hearing under this subsection tolls the running of the period of supervision.
973.11(5)(d)
(d) If the court finds that the violation occurred, it may impose a sentence, revise the conditions of the order or allow the order to continue.
973.11(6)
(6) Other modifications to order. At any time prior to the expiration of the order the court may shorten the length of the order or modify the conditions of the order. The court shall hold a hearing regarding a determination under this subsection if the defendant or district attorney requests a hearing.
973.12
973.12
Sentence of a repeater or persistent repeater. 973.12(1)(1) Whenever a person charged with a crime will be a repeater or a persistent repeater under
s. 939.62 if convicted, any applicable prior convictions may be alleged in the complaint, indictment or information or amendments so alleging at any time before or at arraignment, and before acceptance of any plea. The court may, upon motion of the district attorney, grant a reasonable time to investigate possible prior convictions before accepting a plea. If the prior convictions are admitted by the defendant or proved by the state, he or she shall be subject to sentence under
s. 939.62 unless he or she establishes that he or she was pardoned on grounds of innocence for any crime necessary to constitute him or her a repeater or a persistent repeater. An official report of the F.B.I. or any other governmental agency of the United States or of this or any other state shall be prima facie evidence of any conviction or sentence therein reported. Any sentence so reported shall be deemed prima facie to have been fully served in actual confinement or to have been served for such period of time as is shown or is consistent with the report. The court shall take judicial notice of the statutes of the United States and foreign states in determining whether the prior conviction was for a felony or a misdemeanor.
973.12(2)
(2) In every case of sentence under
s. 939.62, the sentence shall be imposed for the present conviction, but if the court indicates in passing sentence how much thereof is imposed because the defendant is a repeater, it shall not constitute reversible error, but the combined terms shall be construed as a single sentence for the present conviction.
973.12 History
History: 1993 a. 289.
