973.07 Annotation
Incarceration as a means of collecting a fine is limited to 6 months by this section. It was error for a court to make payment of an old, unpaid fine a condition of probation for a new conviction when violation of probation exposed the defendant to incarceration of more than 6 months. State v. Oakley, 2000 WI 37,
234 Wis. 2d 528,
609 N.W.2d 786,
98-1099.
973.07 Annotation
In the case of an order for commitment for failure to pay attorney fees, in order to be constitutional this section must require a finding of ability to pay prior to any commitment. The defendant must be given notice and an opportunity to be heard. State v. Helsper, 2006 WI App 243,
297 Wis. 2d 377,
724 N.W.2d 414,
06-0835.
973.075
973.075
Forfeiture of property derived from crime and certain vehicles. 973.075(1)(a)
(a) All property, real or personal, including money, directly or indirectly derived from or realized through the commission of any crime.
973.075(1)(b)1m.a.
a. To transport any property or weapon used or to be used or received in the commission of any felony.
973.075(1)(b)1m.d.
d. In the commission of a crime relating to a submerged cultural resource in violation of
s. 44.47.
973.075(1)(b)2m.a.a. No vehicle used by any person as a common carrier in the transaction of business as a common carrier is subject to forfeiture under
ss. 973.075 to
973.077 unless it appears that the owner or other person in charge of the vehicle had knowledge of or consented to the commission of the crime.
973.075(1)(b)2m.b.
b. No vehicle is subject to forfeiture under
ss. 973.075 to
973.077 by reason of any act or omission established by the owner of the vehicle to have been committed or omitted without his or her knowledge or consent.
973.075(1)(b)2m.c.
c. If forfeiture of a vehicle encumbered by a bona fide perfected security interest occurs, the holder of the security interest shall be paid from the proceeds of the forfeiture if the security interest was perfected prior to the date of the commission of the crime which forms the basis for the forfeiture and he or she neither had knowledge of nor consented to the act or omission.
973.075(1)(bg)
(bg) Any property used or to be used in the commission of a crime under
s. 943.75 (2) or
(2m), but if the property is encumbered by a bona fide perfected security interest that was perfected before the date of the commission of the current violation and the holder of the security interest neither had knowledge of nor consented to the commission of that violation, the holder of the security interest shall be paid from the proceeds of the forfeiture.
973.075(1)(bj)
(bj) Any property used or to be used in the commission of a crime under
s. 943.74, but if the property is encumbered by a bona fide perfected security interest that was perfected before the date of the commission of the current violation and the holder of the security interest neither had knowledge of nor consented to the commission of that violation, the holder of the security interest shall be paid from the proceeds of the forfeiture.
973.075(1)(bm)
(bm) Any property used in the commission of a crime under
s. 813.12 (8),
813.122 (11),
813.123 (10),
813.125 (7),
813.128 (2) or
940.32, but if the property is encumbered by a bonafide perfected security interest that was perfected before the date of the commission of the current violation and the holder of the security interest neither had knowledge of nor consented to the commission of that violation, the holder of the security interest shall be paid from the proceeds of the forfeiture.
973.075(1)(c)
(c) All remote sensing equipment, navigational devices, survey equipment and scuba gear and any other equipment or device used in the commission of a crime relating to a submerged cultural resource in violation of
s. 44.47.
973.075(1)(d)
(d) A tank vessel that violates
s. 299.62 (2) that is owned by a person who, within 5 years before the commission of the current violation, was previously convicted of violating
s. 299.62 (2), but if the tank vessel is encumbered by a bona fide perfected security interest that was perfected before the date of the commission of the current violation and the holder of the security interest neither had knowledge of nor consented to the commission of that violation, the holder of the security interest shall be paid from the proceeds of the forfeiture.
973.075(1)(e)
(e) Any recording, as defined in
s. 943.206 (5), created, advertised, offered for sale or rent, sold, rented, transported or possessed in violation of
ss. 943.207 to
943.209 or
s. 943.49 and any electronic, mechanical or other device for making a recording or for manufacturing, reproducing, packaging or assembling a recording that was used to facilitate a violation of
ss. 943.207 to
943.209 or
s. 943.49, regardless of the knowledge or intent of the person from whom the recording or device is seized. If a device subject to forfeiture under this paragraph is encumbered by a bona fide perfected security interest that was perfected before the date of the commission of the current violation and the holder of the security interest neither had knowledge of nor consented to the commission of that violation, the holder of the security interest shall be paid from the proceeds of the forfeiture.
973.075(2)
(2) A law enforcement officer may seize property subject to this section upon process issued by any court of record having jurisdiction over the property. Except for vehicles used in the commission of a crime in violation of
s. 944.30,
944.31,
944.32,
944.33 or
944.34, seizure without process may be made under any of the following circumstances:
973.075(2)(a)
(a) The seizure is incident to an arrest or a search under a search warrant or an inspection under any administrative or special inspection warrant.
973.075(2)(b)
(b) The property subject to seizure has been the subject of a prior judgment in favor of the state.
973.075(2)(c)
(c) The officer has probable cause to believe that the property is directly or indirectly dangerous to health or safety.
973.075(2)(d)
(d) The officer has probable cause to believe that the property was derived from or realized through a crime or that the property is a vehicle which was used to transport any property or weapon used or to be used or received in the commission of any felony, which was used in the commission of a crime relating to a submerged cultural resource in violation of
s. 44.47, or which was used to cause more than $2,500 worth of criminal damage to cemetery property in violation of
s. 943.01 (2) (d) or
943.012.
973.075(3)
(3) If there is a seizure under
sub. (2) or
s. 342.30 (4) (a), proceedings under
s. 973.076 shall be instituted. Property seized under this section or
s. 342.30 (4) (a) is not subject to replevin, but is deemed to be in the custody of the sheriff of the county in which the seizure was made subject only to the orders and decrees of the court having jurisdiction over the forfeiture proceedings. When property is seized under this section or
s. 342.30 (4) (a), the person seizing the property may do any of the following:
973.075(3)(b)
(b) Remove the property to a place designated by it.
973.075(3)(c)
(c) Require the sheriff of the county in which the seizure was made to take custody of the property and remove it to an appropriate location for disposition in accordance with law.
973.075(4)
(4) When property is forfeited under
ss. 973.075 to
973.077, the agency seizing the property may sell the property that is not required by law to be destroyed or transferred to another agency. The agency may retain any vehicle for official use or sell the vehicle. The agency seizing the property may deduct 50% of the amount received for administrative expenses of seizure, maintenance of custody, advertising and court costs and the costs of investigation and prosecution reasonably incurred. The remainder shall be deposited in the school fund as the proceeds of the forfeiture. If the property forfeited under
ss. 973.075 to
973.077 is money, all the money shall be deposited in the school fund.
973.075(5)
(5) All forfeitures under
ss. 973.075 to
973.077 shall be made with due provision for the rights of innocent persons under
sub. (1) (b) 2m.,
(bg),
(bm),
(d) and
(e). Except as provided in
sub. (5m), any property seized but not forfeited shall be returned to its rightful owner. Any person claiming the right to possession of property seized may apply for its return to the circuit court for the county in which the property was seized. The court shall order such notice as it deems adequate to be given the district attorney and all persons who have or may have an interest in the property and shall hold a hearing to hear all claims to its true ownership. If the right to possession is proved to the court's satisfaction, it shall order the property returned if:
973.075(5)(a)
(a) The property is not needed as evidence or, if needed, satisfactory arrangements can be made for its return for subsequent use as evidence; or
973.075(5)(b)
(b) All proceedings in which it might be required have been completed.
973.075(5m)(a)1.
1. "Forfeiture action deadline" means the 30th day after the seizure of the property or, if the property was seized as a result of a criminal conviction, the 30th day after the date of the conviction.
973.075(5m)(a)2.
2. "Prosecutor" means the district attorney or, in counties having a population of 500,000 or more, the district attorney or the corporation counsel.
973.075(5m)(a)3.
3. "Victim" means the owner, as defined in
s. 943.206 (2), of the sounds in a recording described in
sub. (1) (e) or, if the recording is seized in connection with an investigation or prosecution of a violation of
s. 943.208, the performance owner.
973.075(5m)(b)
(b) If a recording involved in a violation of
ss. 943.207 to
943.209 is forfeited, the sheriff of the county in which the recording was seized shall destroy it after the completion of all proceedings in which the recording might be required as evidence.
973.075(5m)(c)
(c) If, by the forfeiture action deadline, a summons, complaint and affidavit have not been filed under
s. 973.076 (2) (a) with respect to property seized under
sub. (1) (e), the prosecutor shall notify the victim, if known, by certified mail no later than 7 days after the forfeiture action deadline. The prosecutor shall then return the property to the person from whom it was seized no earlier than 60 days and no later than 90 days after the forfeiture action deadline unless one of the following applies:
973.075(5m)(c)1.
1. A court has entered an order prohibiting the return of the property or requiring it to be conveyed to another person.
973.075(5m)(c)2.
2. The property is needed as evidence in a criminal proceeding and is likely to be unavailable for use as evidence if returned to the person from whom it was seized.
973.075 Annotation
The critical inquiry under sub. (1) (b) is not whether the vehicle was used in a crime, but whether property carried by the vehicle was used in a crime. State v. One 1971 Oldsmobile Cutlass,
159 Wis. 2d 718,
464 N.W.2d 851 (Ct. App. 1990).
973.075 Annotation
The forfeiture of a motor vehicle under sub. (1) (b) did not violate the constitutional guarantees against excessive punishment. State v. Hammad,
212 Wis. 2d 343,
569 N.W.2d 68 (Ct. App. 1997),
95-2669.
973.075 Annotation
Ownership under sub. (1) (b) 2. is not controlled by legal title, but will be found based on consideration of possession, title, control, and financial stake. State v. Kirch,
222 Wis. 2d 598,
587 N.W.2d 919 (Ct. App. 1998),
98-0582.
973.075 Annotation
A punitive forfeiture violates the prohibition against excessive fines in the U.S. constitution if it is grossly disproportional to the gravity of the defendant's offense. Whether a forfeiture is far in excess of the maximum fine is a factor appropriately considered. State v. Boyd, 2000 WI App 208,
238 Wis. 2d 693,
618 N.W.2d 251,
99-2633.
973.075 Annotation
A law enforcement agency may not retain unclaimed contraband money for its own use. In the absence of an asset forfeiture proceeding initiated by the state or a judicial determination that the money constitutes contraband, a local law enforcement agency should dispose of the money as unclaimed property under s. 59.66 (2).
OAG 10-09.
973.076
973.076
Forfeiture proceedings. 973.076(1)
(1)
Type of action; where brought. In an action brought to cause the forfeiture of any property specified in
s. 342.30 (4) (a) or
s. 973.075 (1), the court may render a judgment in rem or against a party personally, or both. The circuit court for the county in which the property was seized shall have jurisdiction over any proceedings regarding the property when the action is commenced in state court. Any property seized may be the subject of a federal forfeiture action.
973.076(2)(a)(a) The district attorney of the county within which the property was seized or in which the defendant is convicted shall commence the forfeiture action within 30 days after the seizure of the property or the date of conviction, whichever is earlier, except that the defendant may request that the forfeiture proceedings be adjourned until after adjudication of any charge concerning a crime which was the basis for the seizure of the property. The request shall be granted. The forfeiture action shall be commenced by filing a summons, complaint and affidavit of the person who seized the property with the clerk of circuit court, provided service of authenticated copies of those papers is made in accordance with
ch. 801 within 90 days after filing upon the person from whom the property was seized and upon any person known to have a bona fide perfected security interest in the property.
973.076(2)(b)
(b) Upon service of an answer, the action shall be set for hearing within 60 days of the service of the answer but may be continued for cause or upon stipulation of the parties.
973.076(2)(c)
(c) In counties having a population of 500,000 or more, the district attorney or the corporation counsel may proceed under
par. (a).
973.076(2)(d)
(d) If no answer is served or no issue of law or fact has been joined and the time for that service or joining issue has expired, or if any defendant fails to appear at trial after answering or joining issue, the court may render a default judgment as provided in
s. 806.02.
973.076(3)
(3) Burden of proof. The state shall have the burden of satisfying or convincing to a reasonable certainty by the greater weight of the credible evidence that the property is subject to forfeiture under
s. 973.075 to
973.077.
973.076(4)
(4) Action against other property of the person. The court may order the forfeiture of any other property of a defendant up to the value of property found by the court to be subject to forfeiture under
s. 973.075 if the property subject to forfeiture meets any of the following conditions:
973.076(4)(b)
(b) Has been transferred or conveyed to, sold to or deposited with a 3rd party.
973.076(4)(d)
(d) Has been substantially diminished in value while not in the actual physical custody of the law enforcement agency.
973.076(4)(e)
(e) Has been commingled with other property that cannot be divided without difficulty.
973.076 History
History: 1981 c. 267; Sup. Ct. Order, 120 Wis. 2d xiii (1984);
1985 a. 245;
1989 a. 121;
1993 a. 92,
321,
491;
1997 a. 187.
973.076 Note
Judicial Council Note, 1984: Sub. (2) (a) has been amended by allowing 60 days after the action is commenced for service of the summons, complaint and affidavit on the defendants. The prior statute, requiring service within 30 days after seizure of the property, was an exception to the general rule of s. 801.02 (2), stats. [Re Order effective Jan. 1, 1985]
973.076 Annotation
Section 801.15 (2) governs extensions of time after the time for setting a hearing has expired. State v. Elliot,
203 Wis. 2d 95,
551 N.W.2d 850 (Ct. App. 1996),
96-0012.
973.076 Annotation
Under sub. (2) (a), "adjudication" occurs at the moment of a finding of guilt or innocence by a circuit court and does not embrace an appeal of a conviction. Sub. (2) (a) does not contemplate adjournment of forfeiture proceedings pending an appeal of the underlying criminal conviction. State v. One 1997 Ford F-150, 2003 WI App 128,
265 Wis. 2d 264,
665 N.W.2d 411,
02-2685.
973.077
973.077
Burden of proof; liabilities. 973.077(1)
(1) It is not necessary for the state to negate any exemption or exception regarding any crime in any complaint, information, indictment or other pleading or in any trial, hearing or other proceeding under
s. 973.076. The burden of proof of any exemption or exception is upon the person claiming it.
973.077(2)
(2) In the absence of proof that a person is the duly authorized holder of an appropriate federal registration or order form, the person is presumed not to be the holder of the registration or form. The burden of proof is upon the person to rebut the presumption.
973.077(3)
(3) No liability is imposed by
ss. 973.075 to
973.077 upon any authorized law enforcement officer or employee engaged in the lawful performance of duties.
973.077 History
History: 1981 c. 267.
973.08
973.08
Records accompanying prisoner. 973.08(1)
(1) When any defendant is sentenced to the state prisons, a copy of the judgment of conviction and a copy of any order for restitution under
s. 973.20 shall be delivered by the officer executing the judgment to the warden or superintendent of the institution when the prisoner is delivered.
973.08(2)
(2) The transcript of any portion of the proceedings relating to the prisoner's sentencing shall be filed at the institution within 120 days from the date sentence is imposed.
973.08(3)
(3) The transcript of all other testimony and proceedings upon order of a court shall be delivered to a prisoner within 120 days of his or her request.
973.08(4)
(4) The transcript of all other testimony and proceedings upon order of a court shall be delivered to the department within 120 days of its request.
973.08(5)
(5) The clerk of court shall file or deliver a transcript under
sub. (2),
(3) or
(4).
Effective date note
History: 1971 c. 298 s.
26 (1);
1977 c. 187; Sup. Ct. Order, eff. 1-1-80;
1979 c. 221;
1987 a. 398.
973.08 Annotation
For a court order to be entered under sub. (3), at a minimum a requesting prisoner must show that he or she either never received, or was denied, access to the requested documents. State v. Wilson,
170 Wis. 2d 720,
490 N.W.2d 48 (Ct. App. 1992).
973.09(1)(a)(a) Except as provided in
par. (c) or if probation is prohibited for a particular offense by statute, if a person is convicted of a crime, the court, by order, may withhold sentence or impose sentence under
s. 973.15 and stay its execution, and in either case place the person on probation to the department for a stated period, stating in the order the reasons therefor. The court may impose any conditions which appear to be reasonable and appropriate. The period of probation may be made consecutive to a sentence on a different charge, whether imposed at the same time or previously. If the court imposes a term of probation under
sub. (2) (a) 1. or
2. or
(b) 2., it shall place its reasons for doing so on the record.
973.09(1)(b)
(b) If the court places the person on probation, the court shall order the person to pay restitution under
s. 973.20, unless the court finds there is substantial reason not to order restitution as a condition of probation. If the court does not require restitution to be paid to a victim, the court shall state its reason on the record. If the court does require restitution, it shall notify the department of justice of its decision if the victim may be eligible for compensation under
subch. I of ch. 949.
973.09(1)(c)
(c) When a person is convicted of any crime which is punishable by life imprisonment, the court shall not place the person on probation.
