973.06 Annotation
A court was authorized to order that a defendant pay the cost of DNA testing by a private laboratory as a cost under this section. State v. Beiersdorf,
208 Wis. 2d 492,
561 N.W.2d 749 (Ct. App. 1997),
95-1234.
973.06 Annotation
Expenses incurred by a sheriff's department in transporting a witness from a Florida corrections facility to testify at the defendant's trial were chargeable to the defendant under s. 973.06 (1) (a). State v. Bender,
213 Wis. 2d 338,
570 N.W.2d 590 (Ct. App. 1997),
97-1095.
973.06 Annotation
A crime prevention organization under sub. (1) (f) is an organization designed to encourage the public to report incidences of crime to law enforcement agencies and to assist those agencies in apprehending criminals. It does not include law enforcement agencies. State v. Bizzle,
222 Wis. 2d 100,
585 N.W.2d 899 (Ct. App. 1998),
97-2616.
973.06 Annotation
Sub. (1) (c) authorized the taxation of the costs of an expert's medical examination when the development of that evidence was used in the prosecution of the defendant although the examination was not done in contemplation of trial and the expert witness did not testify. State v. Rohe,
230 Wis. 2d 294,
602 N.W.2d 125 (Ct. App. 1999),
99-0233.
973.06 Annotation
"Disbursements and fees" are given the same meaning in sub. (1) (a) and (c). Whether the expenses associated with orders to produce a defendant are taxable "fees of officers" under sub. (1) (a) depends upon whether they are ordinarily charged to and payable by another or are merely internal operating expenses of a governmental unit. State v. Dismuke,
2001 WI 75,
244 Wis. 2d 457,
628 N.W.2d 791,
99-1734.
973.06 Annotation
The trial court has inherent authority to assess the cost of impaneling a jury against a party. The purpose of imposing jury costs is to deter disruptive practices that contribute to inefficiency in the court system. The trial court is not limited to imposing costs on parties, but may sanction an attorney whose conduct negligently disrupts the court's orderly administration of justice. O'Neil v. Monroe County Circuit Court,
2003 WI App 149,
266 Wis. 2d 155,
667 N.W.2d 774,
02-2866.
973.06 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,
294 Wis. 2d 100,
718 N.W.2d 649,
04-0803.
973.06 Annotation
The obligation of a defendant under this section is not dischargeable in bankruptcy. Matter of Zarzynski,
771 F.2d 304 (1985).
973.06 Annotation
Right to counsel; repayment of cost of court-appointed counsel as a condition of probation. 56 MLR 551.
973.07
973.07
Failure to pay fine, fees, surcharges, or costs or to comply with certain community service work. If the fine, plus costs, fees, and surcharges imposed under
ch. 814, are not paid or community service work under
s. 943.017 (3) is not completed as required by the sentence, the defendant may be committed to the county jail until the fine, costs, fees, and surcharges are paid or discharged, or the community service work under
s. 943.017 (3) is completed, for a period fixed by the court not to exceed 6 months.
973.07 Annotation
Sections 973.05 (1), permitting a delay of 60 days for payment of a fine, and s. 973.07, allowing commitment to jail for nonpayment, are constitutional since the court may stay the sentence and put defendant on probation. The burden of proving inability to pay is on the defendant. State ex rel. Pedersen v. Blessinger,
56 Wis. 2d 286,
201 N.W.2d 778 (1972).
973.07 Annotation
When a fine and payment schedule are reasonably suited to an offender's means, the offender carries a heavy burden of showing inability to pay. Will v. State,
84 Wis. 2d 397,
267 N.W.2d 357 (1978).
973.07 Annotation
Commitment under this section may be consecutive to another term of incarceration. State v. Way,
113 Wis. 2d 82,
334 N.W.2d 918 (Ct. App. 1983).
973.07 Annotation
The 6- month limit on commitments under this section is the aggregate amount of time a defendant may be jailed for nonpayment of a fine. State v. Schuman,
173 Wis. 2d 743,
496 N.W.2d 684 (Ct. App. 1993).
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.
