302.113(2)(c)1.1. When an inmate is within 90 days of release to extended supervision under
par. (b), the department shall notify the sentencing court that it intends to modify the inmate's sentence and release the inmate to extended supervision under
par. (b), and the court may hold a review hearing. If the court does not schedule a review hearing within 30 days after notification under this subsection, the department may proceed under
par. (b).
302.113(2)(c)2.a.a. If the sentencing court opts to conduct a review, it shall hold the hearing and issue an order relating to the inmate's sentence modification and release to extended supervision within 60 days of its notification under
subd. 1.
302.113(2)(c)2.b.
b. At the hearing, the court may consider the inmate's conduct in prison, his or her level of risk of reoffending, based on a verified, objective instrument, and the nature of the offense committed by the inmate. The court may accept the department's determination that the inmate has earned positive adjustment time under
par. (b), reject the department's determination that the inmate has earned positive adjustment time under
par. (b), or order the inmate to remain in prison for a period that does not exceed the time remaining on the inmate's term of confinement.
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 for a Class B felony 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(3)(e)
(e) If an inmate is released to extended supervision under
sub. (2) (b) after he or she has served less than his or her entire confinement in prison portion of the sentence imposed under
s. 973.01, the term of extended supervision is increased 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 or until the department discharges the inmate under
s. 973.01 (4m), whichever is appropriate. 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 or under
s. 302.1135 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 reviewing authority 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 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)(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 order 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 order 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 order under
par. (am) is subject to all conditions and rules under
sub. (7) and, if applicable,
sub. (7m) until the expiration of the remaining extended supervision portion of the bifurcated sentence or until the department discharges the person under
s. 973.01 (4m), whichever is appropriate. 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(9h)(a)(a) The department may release to extended supervision certain persons serving the confinement portion of a bifurcated sentence using the sentence modification procedure described in this subsection.
302.113(9h)(b)
(b) The department shall promulgate rules for the determination of whether a bifurcated sentence should be modified under this subsection.
302.113(9h)(c)
(c) A person who is serving the confinement portion of a bifurcated sentence is eligible for sentence modification under this subsection if all of the following conditions are met:
302.113(9h)(c)1.
1. The person is serving the confinement portion of a bifurcated sentence for a misdemeanor or a Class F to Class I felony that is not a violent offense, as defined in
s. 301.048 (2) (bm) 1.
302.113(9h)(c)2.
2. The prison social worker or extended supervision agent of record has reason to believe that the person will be able to maintain himself or herself while not confined without engaging in assaultive activity.
302.113(9h)(c)3.
3. The release to extended supervision date is not more than 12 months before the person's extended supervision eligibility date.
302.113(9h)(d)
(d) If the conditions under
pars. (b) and
(c) are met, the department may modify, in the manner specified under
par. (e), the sentence of any person by releasing him or her to extended supervision under this subsection, and, if the department releases the person to extended supervision, the department shall:
302.113(9h)(d)1.
1. Notify the office of the court that participated in the trial or that accepted the person's plea of guilty or no contest, whichever is applicable.
302.113(9h)(d)2.
2. Notify the office of the district attorney that participated in the trial of the person or that prepared for proceedings under
s. 971.08 regarding the person's plea of guilty or no contest, whichever is applicable.
302.113(9h)(e)
(e) The department may modify a person's bifurcated sentence under this subsection only as follows:
302.113(9h)(e)1.
1. The department shall reduce the term of confinement in prison portion of the person's bifurcated sentence in a manner that provides for the release of the person to extended supervision within 30 days after the date on which the department modifies the bifurcated sentence.
302.113(9h)(e)2.
2. The department shall lengthen the term of extended supervision imposed so that the total length of the bifurcated sentence originally imposed does not change.
302.113(9h)(f)
(f) This subsection does not apply to any of the following:
302.113(9h)(f)2.
2. A person who has, in his or her lifetime, been convicted of or found not guilty by reason of mental disease or defect of a sex offense, as defined in
s. 301.45 (1d) (b).
302.113(9h)(f)3.
3. A person who has, in his or her lifetime, been found to have committed a sex offense in another jurisdiction, as defined in
s. 301.45 (1d) (am).
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 akin to sentencing. Both are reviewed by appellate courts to determine whether the court erroneously exercised its discretion. State v. Brown, 2006 WI 131,
298 Wis. 2d 37,
725 N.W.2d 262,
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 deference to the department's sentencing recommendation after revocation of an offender's extended supervision. The court should also consider the nature and severity of the original offense, the client's institutional conduct record, and the client's conduct and the nature of the violation of terms and conditions during extended supervision, as well as the amount of incarceration necessary to protect the public from the risk of further criminal activity. The court should impose the minimum amount of confinement consistent with the protection of the public, the gravity of the offense, and the defendant's rehabilitative needs. State v. Brown, 2006 WI 131,
298 Wis. 2d 37,
725 N.W.2d 262,
05-0584.
302.113 Annotation
The department of corrections and the division of hearings and appeals had jurisdiction to revoke extended supervision for a violation of the rules of supervision when an inmate was erroneously released to supervision while serving a bifurcated sentence and the initial term of incarceration had not been completed. Rupinski v. Smith, 2007 WI App 4,
297 Wis. 2d 749,
728 N.W.2d 1,
05-1760.
302.113 Annotation
Under Brown the defendant has a right to allocution at a reconfinement hearing before the court pronounces its decision. State v. Hines, 2007 WI App 39,
300 Wis. 2d 485,
730 N.W.2d 434,
06-0846.
302.113 Annotation
When a person is serving consecutive indeterminate and determinate sentences, extended supervision and parole are to be treated as one continuous period, and both may be revoked upon violation of the conditions imposed. Thomas v. Schwarz, 2007 WI 57,
300 Wis. 2d 381,
732 N.W.2d 1,
05-1487.
302.113 Annotation
Sub. (9) (am) governs reconfinement procedure and sets forth the limits of a court's exercisable discretion. It does not provide discretion for the court to consider eligibility for the challenge incarceration program or the earned release program under s. 973.01 (3g) and (3m). State v. Hall, 2007 WI App 168,
304 Wis. 2d 504,
737 N.W.2d 13,
06-1439.
302.113 Annotation
The original sentencing transcript can be an important source of information in a reconfinement hearing and is generally readily available, but a circuit court is not required to read the original sentencing transcript in every case. Rather, the court should be familiar with the case and can gain the requisite familiarity in a number of ways that may differ from case to case. The court must decide which factors are relevant for consideration in any given case and use its discretion as to how it ascertains the information needed to consider the relevant factors. State v. Walker, 2008 WI 34,
308 Wis. 2d 666,
747 N.W.2d 673,
06-0562.
302.113 Annotation
Sections 302.113 (4), 973.01, and 973.15 establish that consecutive periods of extended supervision are to be served consecutively, aggregated into one continuous period, so that revocation of extended supervision at any time allows revocation as to all consecutive sentences. State v. Collins, 2008 WI App 163,
314 Wis. 2d 653,
760 N.W.2d 438,
07-2580.
302.113 Annotation
Sub. (9) (b) keeps intact the bifurcated-sentence scheme established by s. 973.01. It indubitably follows that the reconfinement court has the same authority to impose conditions of extended supervision that follows the period of reconfinement as an original sentencing court has to impose conditions on the extended supervision that follows the period of initial confinement. State v. Harris, 2008 WI App 189,
763 Wis. 2d 206,
763 N.W.2d 206,
08-0778.
302.113 Annotation
When a person waives a revocation hearing, the department of corrections (DOC) is required by sub. (9) (at) to make a recommendation to the court concerning the period of time the person should be returned to prison. The recommendation is more appropriately analogized to a presentence investigation report (PSI) at the original sentencing than a plea agreement. The securing of a PSI is solely within the judicial function to assist the judge in selecting an appropriate sentence. The DOC does not function as an agent of either the state or the defense in fulfilling its PSI role under this section and the prosecutor is not bound by a recommendation from the DOC. State v. Washington, 2009 WI App 148,
321 Wis. 2d 508,
775 N.W.2d 535,
08-2359.
302.113 Annotation
There is no indication Truth-in-Sentencing altered the substantive nature of the reconfinement decision. Rather, as before Truth-in-Sentencing, the reconfinement determination is part of the revocation process and therefore not a criminal proceeding. State v. Brimer, 2010 WI App 57,
324 Wis. 2d 408,
781 N.W.2d 726,
09-0817.
302.113 Annotation
Taking Reconfinement Hearings Seriously. Bizzaro. Wis. Law. Apr. 2007.
302.1135
302.1135
Release to extended supervision for extraordinary health circumstances. 302.1135(1)(b)
(b) "Extraordinary health condition" means a condition afflicting a person, such as advanced age, infirmity, or disability of the person or a need for medical treatment or services not available within a correctional institution.
302.1135(2)
(2) An inmate who is serving a bifurcated sentence imposed under
s. 973.01 or, notwithstanding
s. 973.014 (1g) (a) or
(2), an inmate who is serving a life sentence imposed under
s. 973.014 may seek modification of the sentence in the manner specified in
sub. (6) if he or she meets one of the following criteria:
302.1135(2)(a)
(a) 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 for a sentence imposed under
s. 973.01 or has served at least 5 years in prison for a life sentence imposed under
s. 973.014.
302.1135(2)(b)
(b) 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 for a sentence imposed under
s. 973.01 or has served at least 10 years in prison for a life sentence imposed under
s. 973.014.
302.1135(3)
(3) An inmate who meets the criteria under
sub. (2) may submit a petition to the commission requesting a modification of the inmate's sentence in the manner specified in
sub. (6). If the inmate alleges in the petition that he or she has an extraordinary health condition, the inmate shall attach to the petition affidavits from 2 physicians setting forth a diagnosis that the inmate has an extraordinary health condition.
302.1135(4)
(4) When the commission receives under
sub. (3) an inmate's petition for modification of the inmate's sentence, the commission shall set a hearing to determine whether the public interest would be served by a modification of the inmate's sentence in the manner specified in
sub. (6). 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 sentence. The commission shall order such notice of the hearing date as it considers adequate to be given to the inmate, the attorney representing the inmate, if applicable, and the district attorney. Victim notification shall be provided as specified under
sub. (7).
