939.62 Annotation
A trial court judge, rather than a jury, is allowed to determine the applicability of a defendant's prior conviction for sentence enhancement purposes when the necessary information concerning the prior conviction can be readily determined from an existing judicial record. State v. LaCount,
2008 WI 59,
310 Wis. 2d 85,
750 N.W.2d 780,
06-0672.
939.62 Annotation
The application of the persistent repeater statute requires a particular sequence of convictions: 1) the conviction date for the first offense must have preceded the violation date for the second offense, and 2) the conviction date for the second offense must have preceded the violation date for the current Wisconsin offense. State v. Long,
2009 WI 36,
317 Wis. 2d 92,
765 N.W.2d 557,
07-2307.
939.62 Annotation
A defendant may collaterally attack a prior conviction in an enhanced sentence proceeding on the ground that he or she was denied the constitutional right to counsel in the earlier case. The U. S. Supreme Court recognized that the information a defendant must possess to execute a valid waiver of counsel depends on a range of case-specific factors, including the defendant's education or sophistication. The Supreme Court's reference to a defendant's "education or sophistication" suggests that a court may take the defendant's cognitive limitations into account when determining the validity of his or her waiver. State v. Bohlinger,
2013 WI App 39,
346 Wis. 2d 549,
828 N.W.2d 900,
12-1060.
939.621
939.621
Increased penalty for certain domestic abuse offenses. 939.621(1)(1) In this section, "domestic abuse repeater" means either of the following:
939.621(1)(a)
(a) A person who commits, during the 72 hours immediately following an arrest for a domestic abuse incident as set forth in
s. 968.075 (5), an act of domestic abuse, as defined in
s. 968.075 (1) (a) that constitutes the commission of a crime. For the purpose of the definition under this paragraph, the 72-hour period applies whether or not there has been a waiver by the victim under
s. 968.075 (5) (c).
939.621(1)(b)
(b) A person who was convicted, on 2 separate occasions, of a felony or a misdemeanor for which a court imposed a domestic abuse surcharge under
s. 973.055 (1) or waived a domestic abuse surcharge pursuant to
s. 973.055 (4), during the 10-year period immediately prior to the commission of the crime for which the person presently is being sentenced, if the convictions remain of record and unreversed. For the purpose of the definition under this paragraph, it is immaterial that sentence was stayed, withheld or suspended, or that the person was pardoned, unless such pardon was granted on the ground of innocence. In computing the preceding 10-year period, time that the person spent in actual confinement serving a criminal sentence shall be excluded.
939.621(2)
(2) If a person commits an act of domestic abuse, as defined in
s. 968.075 (1) (a) and the act constitutes the commission of a crime, the maximum term of imprisonment for that crime may be increased by not more than 2 years if the person is a domestic abuse repeater. The victim of the domestic abuse crime does not have to be the same as the victim of the domestic abuse incident that resulted in the prior arrest or conviction. The penalty increase under this section changes the status of a misdemeanor to a felony.
939.621 Annotation
When two penalty enhancers are applicable to the same crime, the length of the second penalty enhancer is based on the maximum term for the base crime as extended by the first penalty enhancer. State v. Quiroz,
2002 WI App 52,
251 Wis. 2d 245,
641 N.W.2d 715,
01-1549.
939.63
939.63
Penalties; use of a dangerous weapon. 939.63(1)
(1) If a person commits a crime while possessing, using or threatening to use a dangerous weapon, the maximum term of imprisonment prescribed by law for that crime may be increased as follows:
939.63(1)(a)
(a) The maximum term of imprisonment for a misdemeanor may be increased by not more than 6 months.
939.63(1)(b)
(b) If the maximum term of imprisonment for a felony is more than 5 years or is a life term, the maximum term of imprisonment for the felony may be increased by not more than 5 years.
939.63(1)(c)
(c) If the maximum term of imprisonment for a felony is more than 2 years, but not more than 5 years, the maximum term of imprisonment for the felony may be increased by not more than 4 years.
939.63(1)(d)
(d) The maximum term of imprisonment for a felony not specified in
par. (b) or
(c) may be increased by not more than 3 years.
939.63(2)
(2) The increased penalty provided in this section does not apply if possessing, using or threatening to use a dangerous weapon is an essential element of the crime charged.
939.63(3)
(3) This section applies only to crimes specified under
chs. 939 to
951 and
961.
939.63 Annotation
The fact that the maximum term for a misdemeanor may exceed one year under sub. (1) (a) does not upgrade the crime to felony status. State v. Denter,
121 Wis. 2d 118,
357 N.W.2d 555 (1984).
939.63 Annotation
Possession encompasses both actual and constructive possession. To prove a violation of this section, the state must prove that the defendant possessed the weapon to facilitate the predicate offense. State v. Peete,
185 Wis. 2d 255,
517 N.W.2d 149 (1994). See also State v. Howard,
211 Wis. 2d 269,
564 N.W.2d 753 (1997),
95-0770.
939.63 Annotation
An automobile may constitute a dangerous weapon under s. 939.22 (10). State v. Bidwell,
200 Wis. 2d 200,
546 N.W.2d 507 (Ct. App. 1996).
939.63 Annotation
Under
Peete, there is sufficient evidence of possession if the evidence allows a reasonable jury to find beyond a reasonable doubt that the defendant possessed a dangerous weapon in order to use it or threaten to use it, even if the defendant did not use or threaten to use it in the commission of the crime. State v. Page,
2000 WI App 267,
240 Wis. 2d 276,
622 N.W.2d 285,
99-2015.
939.63 Annotation
When two penalty enhancers are applicable to the same crime, the length of the second penalty enhancer is based on the maximum term for the base crime as extended by the first penalty enhancer. State v. Quiroz,
2002 WI App 52,
251 Wis. 2d 245,
641 N.W.2d 715,
01-1549.
939.632
939.632
Penalties; violent crime in a school zone. 939.632(1)(a)
(a) "School" means a public school, parochial or private school, or tribal school, as defined in
s. 115.001 (15m), that provides an educational program for one or more grades between grades 1 and 12 and that is commonly known as an elementary school, middle school, junior high school, senior high school, or high school.
939.632(1)(c)
(c) "School premises" means any school building, grounds, recreation area or athletic field or any other property owned, used or operated for school administration.
939.632(1)(d)3.
3. On a school bus or public transportation transporting students to and from a public or private school or to and from a tribal school, as defined in
s. 115.001 (15m).
939.632(1)(d)3m.
3m. At school bus stops where students are waiting for a school bus or are being dropped off by a school bus.
939.632(1)(e)1.
1. Any felony under
s. 940.01,
940.02,
940.03,
940.05,
940.09 (1c),
940.19 (2),
(4) or
(5),
940.21,
940.225 (1),
(2) or
(3),
940.235,
940.305,
940.31,
941.20,
941.21,
943.02,
943.06,
943.10 (2),
943.23 (1g),
943.32 (2),
948.02 (1) or
(2),
948.025,
948.03 (2) (a) or
(c),
948.05,
948.051,
948.055,
948.07,
948.08,
948.085, or
948.30 (2) or under
s. 940.302 (2) if
s. 940.302 (2) (a) 1. b. applies.
939.632(2)
(2) If a person commits a violent crime in a school zone, the maximum term of imprisonment is increased as follows:
939.632(2)(a)
(a) If the violent crime is a felony, the maximum term of imprisonment is increased by 5 years.
939.632(2)(b)
(b) If the violent crime is a misdemeanor, the maximum term of imprisonment is increased by 3 months and the place of imprisonment is the county jail.
939.632(3)(a)(a) In addition to any other penalties that may apply to the crime under
sub. (2), the court may require the person to complete 100 hours of community service work for a public agency or a nonprofit charitable organization. The court shall ensure that the defendant is provided a written statement of the terms of the community service order. Any organization or agency acting in good faith to which a defendant is assigned under an order under this paragraph has immunity from any civil liability in excess of $25,000 for acts or omissions by or impacting on the defendant.
939.632(3)(b)
(b) The court shall not impose the requirement under
par. (a) if the court determines that the person would pose a threat to public safety while completing the requirement.
939.632(4)
(4) This section provides for the enhancement of the penalties applicable for the underlying crime. The court shall direct that the trier of fact find a special verdict as to all of the issues specified in
sub. (2).
939.632 Annotation
The violent crime in a school zone penalty enhancer is not unconstitutional as applied to the defendant. The legislature seeks to deter violent crime near schools in an effort to create a safety zone around schools. The 1,000-foot perimeter is a reasonable distance to try to accomplish this legislative goal. State v. Quintana,
2007 WI App 29,
299 Wis. 2d 234,
729 N.W.2d 776,
06-0499.
939.635
939.635
Increased penalty for certain crimes against children committed by a child care provider. If a person commits a violation of
s. 948.02,
948.025, or
948.03 (2) or
(3) against a child for whom the person was providing child care for compensation, the maximum term of imprisonment for that crime may be increased by not more than 5 years.
939.635 History
History: 2011 a. 82.
939.645
939.645
Penalty; crimes committed against certain people or property. 939.645(1)(1) If a person does all of the following, the penalties for the underlying crime are increased as provided in
sub. (2):
939.645(1)(b)
(b) Intentionally selects the person against whom the crime under
par. (a) is committed or selects the property that is damaged or otherwise affected by the crime under
par. (a) in whole or in part because of the actor's belief or perception regarding the race, religion, color, disability, sexual orientation, national origin or ancestry of that person or the owner or occupant of that property, whether or not the actor's belief or perception was correct.
939.645(2)(a)(a) If the crime committed under
sub. (1) is ordinarily a misdemeanor other than a Class A misdemeanor, the revised maximum fine is $10,000 and the revised maximum term of imprisonment is one year in the county jail.
939.645(2)(b)
(b) If the crime committed under
sub. (1) is ordinarily a Class A misdemeanor, the penalty increase under this section changes the status of the crime to a felony and the revised maximum fine is $10,000 and the revised maximum term of imprisonment is 2 years.
939.645(2)(c)
(c) If the crime committed under
sub. (1) is a felony, the maximum fine prescribed by law for the crime may be increased by not more than $5,000 and the maximum term of imprisonment prescribed by law for the crime may be increased by not more than 5 years.
939.645(3)
(3) This section provides for the enhancement of the penalties applicable for the underlying crime. The court shall direct that the trier of fact find a special verdict as to all of the issues specified in
sub. (1).
939.645(4)
(4) This section does not apply to any crime if proof of race, religion, color, disability, sexual orientation, national origin or ancestry or proof of any person's perception or belief regarding another's race, religion, color, disability, sexual orientation, national origin or ancestry is required for a conviction for that crime.
939.645 Annotation
When two penalty enhancers are applicable to the same crime, the length of the second penalty enhancer is based on the maximum term for the base crime as extended by the first penalty enhancer. State v. Quiroz,
2002 WI App 52,
251 Wis. 2d 245,
641 N.W.2d 715,
01-1549.
939.645 Annotation
Hate Crimes: New Limits on the Scope of the 1st Amendment. Resler. 77 MLR 415 (1993).
939.645 Annotation
Put to the Proof: Evidentiary Considerations in Wisconsin Hate Crime Prosecutions. Read. 89 MLR 453 (2005).
939.645 Annotation
Talking about Hate Speech: A Rhetorical Analysis of American and Canadian Regulation of Hate Speech. Moran. 1994 WLR 1425.
939.645 Annotation
Hate Crimes. Kassel. Wis. Law. Oct. 1992.
RIGHTS OF THE PROSECUTION
939.65
939.65
Prosecution under more than one section permitted. Except as provided in
s. 948.025 (3), if an act forms the basis for a crime punishable under more than one statutory provision, prosecution may proceed under any or all such provisions.
939.65 History
History: 1993 a. 227.
939.65 Annotation
Due process does not require that a person know with certainty which crime, among several, the person is committing, at least until the prosecution exercises its charging discretion. Harris v. State,
78 Wis. 2d 357,
254 N.W.2d 291 (1977).
939.66
939.66
Conviction of included crime permitted. Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:
939.66(1)
(1) A crime which does not require proof of any fact in addition to those which must be proved for the crime charged.
939.66(2)
(2) A crime which is a less serious type of criminal homicide than the one charged.
939.66(2m)
(2m) A crime which is a less serious or equally serious type of battery than the one charged.
939.66(2p)
(2p) A crime which is a less serious or equally serious type of violation under
s. 948.02 than the one charged.
939.66(2r)
(2r) A crime which is a less serious type of violation under
s. 943.23 than the one charged.
939.66(3)
(3) A crime which is the same as the crime charged except that it requires recklessness or negligence while the crime charged requires a criminal intent.
939.66(4)
(4) An attempt in violation of
s. 939.32 to commit the crime charged.
939.66(4m)
(4m) A crime of failure to timely pay child support under
s. 948.22 (3) when the crime charged is failure to pay child support for more than 120 days under
s. 948.22 (2).
939.66(5)
(5) The crime of attempted battery when the crime charged is sexual assault, sexual assault of a child, robbery, mayhem or aggravated battery or an attempt to commit any of them.
939.66(6c)
(6c) A crime that is a less serious type of violation under
s. 940.285 than the one charged.
939.66(6e)
(6e) A crime that is a less serious type of violation under
s. 940.295 than the one charged.
939.66 Annotation
To submit a lesser included offense, there must be some reasonable ground in the evidence for conviction on the lesser and acquittal on the greater. A lesser offense is permissible when the evidence requires the jury to find a disputed factual element in the charged offense that is not required for the lesser and the jury might find the disputed fact either way. State v. Melvin,
49 Wis. 2d 246,
181 N.W.2d 490 (1970).
939.66 Annotation
Attempted battery can only be an included crime as to the specific offenses listed. State v. Melvin,
49 Wis. 2d 246,
181 N.W.2d 490 (1970).
