973.017(2)
(2) General requirement. When a court makes a sentencing decision concerning a person convicted of a criminal offense committed on or after February 1, 2003, the court shall consider all of the following:
973.017(2)(a)
(a) If the offense is a felony, the sentencing guidelines adopted by the sentencing commission created under
2001 Wisconsin Act 109, or, if the sentencing commission has not adopted a guideline for the offense, any applicable temporary sentencing guideline adopted by the criminal penalties study committee created under
1997 Wisconsin Act 283.
973.017(2)(b)
(b) Any applicable mitigating factors and any applicable aggravating factors, including the aggravating factors specified in
subs. (3) to
(8).
973.017(3)
(3) Aggravating factors; generally. When making a sentencing decision for any crime, the court shall consider all of the following as aggravating factors:
973.017(3)(a)
(a) The fact that the person committed the crime while his or her usual appearance was concealed, disguised, or altered, with the intent to make it less likely that he or she would be identified with the crime.
973.017(3)(b)
(b) The fact that the person committed the crime using information that was disclosed to him or her under
s. 301.46.
973.017(3)(c)
(c) The fact that the person committed the crime for the benefit of, at the direction of, or in association with any criminal gang, as defined in
s. 939.22 (9), with the specific intent to promote, further, or assist in any criminal conduct by criminal gang members, as defined in
s. 939.22 (9g).
973.017(3)(d)
(d) The fact that the person committed the felony while wearing a vest or other garment designed, redesigned, or adapted to prevent bullets from penetrating the garment.
973.017(3)(e)1.1. Subject to
subd. 2., the fact that the person committed the felony with the intent to influence the policy of a governmental unit or to punish a governmental unit for a prior policy decision, if any of the following circumstances also applies to the felony committed by the person:
973.017(3)(e)1.a.
a. The person caused bodily harm, great bodily harm, or death to another.
973.017(3)(e)1.b.
b. The person caused damage to the property of another and the total property damaged is reduced in value by $25,000 or more. For the purposes of this
subd. 1. b., property is reduced in value by the amount that it would cost either to repair or to replace it, whichever is less.
973.017(3)(e)1.c.
c. The person used force or violence or the threat of force or violence.
973.017(3)(e)2.a.a. In this subdivision, "labor dispute" includes any controversy concerning terms, tenure, or conditions of employment or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.
973.017(3)(e)2.b.
b. Subdivision 1. does not apply to conduct arising out of or in connection with a labor dispute.
973.017(4)
(4) Aggravating factors; serious sex crimes committed while infected with certain diseases. 973.017(4)(a)1.
1. "HIV" means any strain of human immunodeficiency virus, which causes acquired immunodeficiency syndrome.
973.017(4)(a)3.
3. "Sexually transmitted disease" means syphilis, gonorrhea, hepatitis B, hepatitis C, or chlamydia.
973.017(4)(a)4.
4. "Significantly exposed" means sustaining a contact that carries a potential for transmission of a sexually transmitted disease or HIV by one or more of the following:
973.017(4)(a)4.a.
a. Transmission, into a body orifice or onto mucous membrane, of blood; semen; vaginal secretions; cerebrospinal, synovial, pleural, peritoneal, pericardial, or amniotic fluid; or other body fluid that is visibly contaminated with blood.
973.017(4)(a)4.b.
b. Exchange, during the accidental or intentional infliction of a penetrating wound, including a needle puncture, of blood; semen; vaginal secretions; cerebrospinal, synovial, pleural, peritoneal, pericardial, or amniotic fluid; or other body fluid that is visibly contaminated with blood.
973.017(4)(a)4.c.
c. Exchange, into an eye, an open wound, an oozing lesion, or other place where a significant breakdown in the epidermal barrier has occurred, of blood; semen; vaginal secretions; cerebrospinal, synovial, pleural, peritoneal, pericardial, or amniotic fluid; or other body fluid that is visibly contaminated with blood.
973.017(4)(b)
(b) When making a sentencing decision concerning a person convicted of a serious sex crime, the court shall consider as an aggravating factor the fact that the serious sex crime was committed under all of the following circumstances:
973.017(4)(b)1.
1. At the time that he or she committed the serious sex crime, the person convicted of committing the serious sex crime had a sexually transmitted disease or acquired immunodeficiency syndrome or had had a positive test for the presence of HIV, antigen or nonantigenic products of HIV, or an antibody to HIV.
973.017(4)(b)2.
2. At the time that he or she committed the serious sex crime, the person convicted of committing the serious sex crime knew that he or she had a sexually transmitted disease or acquired immunodeficiency syndrome or that he or she had had a positive test for the presence of HIV, antigen or nonantigenic products of HIV, or an antibody to HIV.
973.017(4)(b)3.
3. The victim of the serious sex crime was significantly exposed to HIV or to the sexually transmitted disease, whichever is applicable, by the acts constituting the serious sex crime.
973.017(5)
(5) Aggravating factors; violent felony committed against elder person. 973.017(5)(a)1.
1. "Elder person" means any individual who is 62 years of age or older.
973.017(5)(b)
(b) When making a sentencing decision concerning a person convicted of a violent felony, the court shall consider as an aggravating factor the fact that the victim of the violent felony was an elder person. This paragraph applies even if the person mistakenly believed that the victim had not attained the age of 62 years.
973.017(6)
(6) Aggravating factors; child sexual assault or child abuse by certain persons. 973.017(6)(a)(a) In this subsection, "person responsible for the welfare of the child" includes the child's parent, stepparent, guardian, foster parent, or treatment foster parent; an employee of a public or private residential home, institution, or agency; any other person legally responsible for the child's welfare in a residential setting; or a person employed by one who is legally responsible for the child's welfare to exercise temporary control or care for the child.
973.017(6)(b)
(b) When making a sentencing decision concerning a person convicted of a violation of
s. 948.02 (1) or
(2),
948.025 (1),
948.03 (2) or
(3), or
948.051, the court shall consider as an aggravating factor the fact that the person was a person responsible for the welfare of the child who was the victim of the violation.
973.017(7)
(7) Aggravating factors; homicide or injury by intoxicated use of a vehicle. When making a sentencing decision concerning a person convicted of a violation of
s. 940.09 (1) or
940.25 (1), the court shall consider as an aggravating factor the fact that, at the time of the violation, there was a minor passenger under 16 years of age or an unborn child in the person's motor vehicle.
973.017(8)
(8) Aggravating factors; controlled substances offenses. 973.017(8)(a)1.1. In this paragraph, "precinct" means a place where any activity is conducted by a prison, jail, or house of correction.
973.017(8)(a)2.
2. When making a sentencing decision concerning a person convicted of violating
s. 961.41 (1) or
(1m), the court shall consider as an aggravating factor the fact that the violation involved delivering, distributing, or possessing with intent to deliver or distribute a controlled substance or controlled substance analog to a prisoner within the precincts of any prison, jail, or house of correction.
973.017(8)(a)3.
3. When making a sentencing decision concerning a person convicted of violating
s. 961.65, the court shall consider as an aggravating factor the fact that the person intended to deliver or distribute methamphetamine or a controlled substance analog of methamphetamine to a prisoner within the precincts of any prison, jail, or house of correction.
973.017(8)(b)
(b)
Distribution or delivery on public transit vehicles. When making a sentencing decision concerning a person convicted of violating
s. 961.41 (1) or
(1m), the court shall consider as an aggravating factor the fact that the violation involved delivering, distributing, or possessing with intent to deliver or distribute a controlled substance included in schedule I or II or a controlled substance analog of any controlled substance included in schedule I or II and that the person knowingly used a public transit vehicle during the violation.
973.017(8)(c)
(c) When making a sentencing decision concerning a person convicted of violating
s. 961.65, the court shall consider as an aggravating factor the fact that the person intended to deliver or distribute methamphetamine or a controlled substance analog of methamphetamine and that the person knowingly used a public transit vehicle during the violation.
973.017(9)
(9) Aggravating factors not an element of the crime. The aggravating factors listed in this section are not elements of any crime. A prosecutor is not required to charge any aggravating factor or otherwise allege the existence of an aggravating factor in any pleading for a court to consider the aggravating factor when making a sentencing decision.
973.017(10)
(10) Use of guidelines; no right to or basis for appeal. The requirement under
sub. (2) (a) that a court consider sentencing guidelines adopted by the sentencing commission or the criminal penalties study committee does not require a court to make a sentencing decision that is within any range or consistent with a recommendation specified in the guidelines, and there is no right to appeal a court's sentencing decision based on the court's decision to depart in any way from any guideline.
973.017(10m)
(10m) Statement of reasons for sentencing decision. 973.017(10m)(a)(a) The court shall state the reasons for its sentencing decision and, except as provided in
par. (b), shall do so in open court and on the record.
973.017(10m)(b)
(b) If the court determines that it is not in the interest of the defendant for it to state the reasons for its sentencing decision in the defendant's presence, the court shall state the reasons for its sentencing decision in writing and include the written statement in the record.
973.017 Annotation
Sub. (2) (a) requires the sentencing court to consider the sentencing guidelines in the case of felonies. Consideration of an applicable guideline must be found in the record, but there are no magic words that must appear. Supplementing the record with evidence beyond the sentencing hearing is insufficient. The court satisfies its sub. (2) (a) obligation when the record of the sentencing hearing demonstrates that the court actually considered the sentencing guidelines and so stated on the record. The court must consider an applicable guideline, not explain it. State v. Grady, 2007 WI 81,
302 Wis. 2d 80,
734 N.W.2d 364,
05-2424.
973.017 Annotation
Nothing in sub. (10) suggests that a circuit court's failure to consider an applicable sentencing guideline under sub. (2) (a) is not a valid grounds for appeal, and an appellate court may review whether or not a circuit court satisfied its sub. (2) (a) obligation. State v. Grady, 2007 WI 81,
302 Wis. 2d 80,
734 N.W.2d 364,
05-2424.
973.02
973.02
Place of imprisonment when none expressed. Except as provided in
s. 973.032, if a statute authorizes imprisonment for its violation but does not prescribe the place of imprisonment, a sentence of less than one year shall be to the county jail, a sentence of more than one year shall be to the Wisconsin state prisons and the minimum under the indeterminate sentence law shall be one year, and a sentence of one year may be to either the Wisconsin state prisons or the county jail. In any proper case, sentence and commitment may be to the department or any house of correction or other institution as provided by law or to detention under
s. 973.03 (4).
973.02 Annotation
The legislature is presumed to have been aware of many existing statutes carrying sentences of one year or less with no place of confinement specified when it enacted the predecessor to s. 973.02 as
chapter 154, laws of 1945. State ex rel. McDonald v. Douglas Cty. Cir. Ct.
100 Wis. 2d 569,
302 N.W.2d 462 (1981).
973.02 Annotation
Criminal defendants who receive consecutive sentences that in the aggregate exceed one year, but individually are all less than one year, should be incarcerated in county jails rather than the Wisconsin prison system.
78 Atty. Gen. 44.
973.03(1)(1) If at the time of passing sentence upon a defendant who is to be imprisoned in a county jail there is no jail in the county suitable for the defendant and no cooperative agreement under
s. 302.44, the court may sentence the defendant to any suitable county jail in the state. The expenses of supporting the defendant there shall be borne by the county in which the crime was committed.
973.03(2)
(2) A defendant sentenced to the Wisconsin state prisons and to a county jail or house of correction for separate crimes shall serve all sentences whether concurrent or consecutive in the state prisons.
973.03(3)(a)(a) If a court sentences a defendant to imprisonment in the county jail, the court may provide that the defendant perform community service work under
pars. (b) and
(c). Except as provided in
par. (am), the defendant earns good time at a rate of one day for each 3 days of work performed. A day of work equals 8 hours of work performed. This good time is in addition to good time authorized under
s. 302.43.
973.03(3)(am)
(am) If a court provides that a defendant may perform community service work pursuant to
par. (a) and the defendant is sentenced to probation or imprisonment in a Huber facility under
s. 303.09, or if a defendant has been ordered to perform community service work under
s. 800.09, a county may, with the approval of the chief judge in the county, allow the defendant to perform community service work under
pars. (b) and
(c). The county may determine the rate at which all defendants in the county earn good time, except that a defendant may not earn less than one day of good time for every 3 days of work performed, nor more than one day of good time for each day of work performed. A day of work equals 8 hours of work performed. This good time is in addition to good time authorized under
s. 302.43.
973.03(3)(b)
(b) The court may require that the defendant perform community service work for a public agency or a nonprofit charitable organization. The number of hours of work required may not exceed what would be reasonable considering the seriousness of the offense and any other offense which is read into the record at the time of conviction. An order may only apply if agreed to by the defendant and the organization or agency. The court shall ensure that the defendant is provided a written statement of the terms of the community service order and that the community service order is monitored.
973.03(3)(c)
(c) Any organization or agency acting in good faith to which a defendant is assigned pursuant to 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 defendant.
973.03(3)(d)
(d) This subsection applies to persons who are sentenced to a county jail but are transferred to a Huber facility under
s. 303.09, to a county work camp under
s. 303.10 or to a tribal jail under
s. 302.445.
973.03(3)(e)
(e) A court may not provide that a defendant perform community service work under this subsection if the defendant is being sentenced regarding any of the following:
973.03(4)(a)(a) In lieu of a sentence of imprisonment to the county jail, a court may impose a sentence of detention at the defendant's place of residence or other place designated by the court. The length of detention may not exceed the maximum possible period of imprisonment. The detention shall be monitored by the use of an electronic device worn continuously on the defendant's person and capable of providing positive identification of the wearer at the detention location at any time. A sentence of detention in lieu of jail confinement may be imposed only if agreed to by the defendant. The court shall ensure that the defendant is provided a written statement of the terms of the sentence of detention, including a description of the detention monitoring procedures and requirements and of any applicable liability issues. The terms of the sentence of detention may include a requirement that the defendant pay a daily fee to cover the costs associated with monitoring him or her. In that case, the terms must specify to whom the payments are made.
973.03(4)(b)
(b) A person sentenced to detention under
par. (a) is eligible to earn good time in the amount of one-fourth of his or her term for good behavior if sentenced to at least 4 days, but fractions of a day shall be ignored. The person shall be given credit for time served prior to sentencing under
s. 973.155, including good time under
s. 973.155 (4). If the defendant fails to comply with the terms of the sentence of detention, the court may order the defendant brought before the court and the court may order the defendant deprived of good time.
973.03(4)(c)
(c) If the defendant fails to comply with the terms of the sentence of detention, the court may order the defendant brought before the court and the court may order that the remainder of the sentence of detention be served in the county jail.
973.03(5)(b)
(b) In lieu of a continuous sentence, a court may sentence a person to serve a series of periods, not less than 48 hours nor more than 3 days for each period, of imprisonment in a county jail. The person is not subject to confinement between periods of imprisonment.
973.03(5)(c)
(c) A court may not sentence a person under
par. (b) regarding any violation under
ch. 961 or the commission of a serious crime.
973.032
973.032
Sentence to intensive sanctions program. 973.032(1)(1)
Sentence. Beginning July 1, 1992, a court may sentence a person who is convicted of a felony occurring on or after August 15, 1991, but before December 31, 1999, to participate in the intensive sanctions program under
s. 301.048. If a person is convicted of a felony occurring on or after December 31, 1999, a court may not sentence the person to participate in the intensive sanctions program under
s. 301.048.
973.032(2)(a)(a) A court may sentence a person under
sub. (1) if the department provides a presentence investigation report recommending that the person be sentenced to the program. If the department does not make the recommendation, a court may order the department to assess and evaluate the person. After that assessment and evaluation, the court may sentence the person to the program unless the department objects on the ground that it recommends that the person be placed on probation.
973.032(2)(b)
(b) Notwithstanding
par. (a), the court may not sentence a person under
sub. (1) if he or she is convicted of a felony punishable by life imprisonment or has at any time been convicted, adjudicated delinquent or found not guilty or not responsible by reason of insanity or mental disease, defect or illness for committing a violent offense, as defined in
s. 301.048 (2) (bm).
