973.014(1g)(a)2.
2. The person is eligible for release to extended supervision on a date set by the court. Under this subdivision, the court may set any later date than that provided in
subd. 1., but may not set a date that occurs before the earliest possible date under
subd. 1.
973.014(1g)(a)3.
3. The person is not eligible for release to extended supervision.
973.014(1g)(b)
(b) When sentencing a person to life imprisonment under
par. (a), the court shall inform the person of the provisions of
s. 302.114 (3) and the procedure for petitioning under
s. 302.114 (5) for release to extended supervision.
973.014(1g)(c)
(c) A person sentenced to life imprisonment under
par. (a) is not eligible for release on parole.
973.014(2)
(2) When a court sentences a person to life imprisonment under
s. 939.62 (2m) (c), the court shall provide that the sentence is without the possibility of parole or extended supervision.
973.014 Annotation
The denial of presentence confinement credit when parole was established under sub. (2) [now sub. (1) (b)] was constitutional. State v. Chapman,
175 Wis. 2d 231,
499 N.W.2d 223 (Ct. App. 1993).
973.014 Annotation
Sub. (1) (b) allows a circuit court to impose a parole eligibility date beyond a defendant's expected lifetime. State v. Setagord,
211 Wis. 2d 397,
565 N.W.2d 506 (1997),
95-0207.
973.014 Annotation
A trial court sentencing a defendant under sub. (1) (b), exercising its discretion, may or may not give credit for presentence incarceration. State v. Seeley,
212 Wis. 2d 75,
567 N.W.2d 897 (Ct. App. 1997),
96-1939.
973.014 Annotation
Parole eligibility is not a statutorily or constitutionally necessary component of a valid plea colloquy in a case in which a life sentence is imposed. State v. Byrge,
225 Wis. 2d 702,
594 N.W.2d 388 (Ct. App. 1999),
97-3217.
973.015
973.015
Special disposition. 973.015(1m)(a)1.1. Subject to
subd. 2. and except as provided in
subd. 3., when a person is under the age of 25 at the time of the commission of an offense for which the person has been found guilty in a court for violation of a law for which the maximum period of imprisonment is 6 years or less, the court may order at the time of sentencing that the record be expunged upon successful completion of the sentence if the court determines the person will benefit and society will not be harmed by this disposition. This subsection does not apply to information maintained by the department of transportation regarding a conviction that is required to be included in a record kept under
s. 343.23 (2) (a).
973.015(1m)(a)2.
2. The court shall order at the time of sentencing that the record be expunged upon successful completion of the sentence if the offense was a violation of
s. 942.08 (2) (b),
(c), or
(d), and the person was under the age of 18 when he or she committed it.
973.015(1m)(a)3.
3. No court may order that a record of a conviction for any of the following be expunged:
973.015(1m)(b)
(b) A person has successfully completed the sentence if the person has not been convicted of a subsequent offense and, if on probation, the probation has not been revoked and the probationer has satisfied the conditions of probation. Upon successful completion of the sentence the detaining or probationary authority shall issue a certificate of discharge which shall be forwarded to the court of record and which shall have the effect of expunging the record. If the person has been imprisoned, the detaining authority shall also forward a copy of the certificate of discharge to the department.
973.015(2m)
(2m) At any time after a person has been convicted, adjudicated delinquent, or found not guilty by reason of mental disease or defect for a violation of
s. 944.30, a court may, upon the motion of the person, vacate the conviction, adjudication, or finding, or may order that the record of the violation of
s. 944.30 be expunged, if all of the following apply:
973.015(2m)(b)
(b) The person committed the violation of
s. 944.30 as a result of being a victim of trafficking for the purposes of a commercial sex act.
973.015(2m)(c)
(c) The person submitted a motion that complies with
s. 971.30, that contains a statement of facts and, if applicable, the reason the person did not previously raise an affirmative defense under
s. 939.46 or allege that the violation was committed as a result of being a victim of trafficking for the purposes of a commercial sex act, and that may include any of the following:
973.015(2m)(c)2.
2. Certified records of approval notices, law enforcement certifications, or similar documents generated from federal immigration proceedings.
973.015(2m)(c)3.
3. Official documentation from a federal, state, or local government agency.
973.015(2m)(c)4.
4. Other relevant and probative evidence of sufficient credibility in support of the motion.
973.015(2m)(d)
(d) The person made the motion with due diligence subject to reasonable concern for the safety of himself or herself, family members, or other victims of trafficking for the purposes of a commercial sex act or subject to other reasons consistent with the safety of persons.
973.015(2m)(e)
(e) A copy of the motion has been served on the office of the district attorney that prosecuted the case that resulted in the conviction, adjudication, or finding except that failure to serve a copy does not deprive the court of jurisdiction and is not grounds for dismissal of the motion.
973.015(2m)(f)
(f) The court in which the motion was made notified the appropriate district attorney's office of the motion and has given the district attorney's office an opportunity to respond to the motion.
973.015(2m)(g)
(g) The court determines that the person will benefit and society will not be harmed by a disposition.
973.015(3)
(3) A special disposition under this section is not a basis for a claim under
s. 775.05.
973.015 Annotation
Forfeitures may not be expunged under sub. (1) [now sub. (1m) (a)]. State v. Michaels,
142 Wis. 2d 172,
417 N.W.2d 415 (Ct. App. 1987).
973.015 Annotation
An expunged conviction is not admissible to attack a witness's credibility. State v. Anderson,
160 Wis. 2d 435,
466 N.W.2d 681 (Ct. App. 1991).
973.015 Annotation
This section does not require law enforcement agencies or prosecutors to destroy records relating to an expunged conviction, nor does it prohibit courts from considering the facts underlying an expunged conviction in sentencing in another case. State v. Leitner,
2002 WI 77,
253 Wis. 2d 449,
646 N.W.2d 341,
00-1718.
973.015 Annotation
Contrary to the defendant's argument that the successful completion of his sentence automatically entitled him to expungement, the plain language of this section clearly states that a defendant is not entitled to expungement of his record unless: 1) he or she successfully completes his or her sentence; 2) the controlling authority issues a certificate of discharge; and 3) that certificate is forwarded to the circuit court. All 3 of these steps must be completed before a record will be expunged. State v. Hemp,
2014 WI App 34,
353 Wis. 2d 146,
844 N.W.2d 421,
13-1163.
973.015 Annotation
While sub. (1) (a) [now sub. (1m) (a) 1.] specifies that the detaining or probationary authority is responsible for issuing a discharge certificate, the defendant is responsible for petitioning the circuit court for expungement and requires the petitioner to forward the discharge certificate as soon practicable. State v. Hemp,
2014 WI App 34,
353 Wis. 2d 146,
844 N.W.2d 421,
13-1163.
973.015 Annotation
A reasonable reading of this section is that the legislature included the words "at the time of sentencing" in sub. (1m) (a) 2. to limit the point in time at which the circuit court is to make a decision about expunction, and that the phrase "at the time of sentencing" means at the proceeding at which the circuit court announces the sanction. State v. Matasek,
2014 WI 27,
353 Wis. 2d 601,
846 N.W.2d 811,
12-1582.
973.015 Annotation
"Expunge" under this section means to strike or obliterate from the record all references to the defendant's name and identity. 67 Atty. Gen. 301.
973.015 Annotation
Circuit courts do not possess inherent powers to expunge or destroy conviction records. 70 Atty. Gen. 115.
973.017
973.017
Bifurcated sentences; use of guidelines; consideration of aggravating and mitigating factors. 973.017(1)(1)
Definition. In this section, "sentencing decision" means a decision as to whether to impose a bifurcated sentence under
s. 973.01 or place a person on probation and a decision as to the length of a bifurcated sentence, including the length of each component of the bifurcated sentence, the amount of a fine, and the length of a term of probation.
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)(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 HIV test.
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 HIV test.
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, or 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(6m)
(6m) Aggravating factors; domestic abuse in presence of a child. 973.017(6m)(a)1.
1. "Child" means an individual who has not attained the age of 18 years.
973.017(6m)(b)
(b) When making a sentencing decision concerning a person convicted of a crime that involves an act of domestic abuse, the court shall consider as an aggravating factor the fact that the act was committed in a place or a manner in which the act was observable by or audible to a child or was in the presence of a child and the actor knew or had reason to know that the act was observable by or audible to a child or was in the presence of a child.
