939.616(2)
(2) If a person is convicted of a violation of
s. 948.02 (1) (d) or
948.025 (1) (c), the court shall impose a bifurcated sentence under
s. 973.01. The term of confinement in prison portion of the bifurcated sentence shall be at least 5 years. Otherwise the penalties for the crime apply, subject to any applicable penalty enhancement.
939.616(3)
(3) This section does not apply if
s. 939.62 (2m) (c) applies. The mandatory minimum sentences in this section do not apply to an offender who was under 18 years of age when the violation occurred.
939.616 History
History: 2005 a. 430 s.
1;
2007 a. 80;
2007 a. 97 s.
309.
939.616 Annotation
Labeling this section a “mandatory minimum sentence" statute and stating that “the court shall impose a bifurcated sentence" and that “[t]he term of confinement in prison portion of the bifurcated sentence shall be at least 25 years," the legislature has clearly prohibited probation. State v. Lalicata,
2012 WI App 138,
345 Wis. 2d 342,
824 N.W.2d 921,
12-0225.
939.617
939.617
Minimum sentence for certain child sex offenses. 939.617(1)(1) Except as provided in
subs. (2) and
(3), if a person is convicted of a violation of
s. 948.05,
948.075, or
948.12, the court shall impose a bifurcated sentence under
s. 973.01. The term of confinement in prison portion of the bifurcated sentence shall be at least 5 years for violations of
s. 948.05 or
948.075 and 3 years for violations of
s. 948.12. Otherwise the penalties for the crime apply, subject to any applicable penalty enhancement.
939.617(2)
(2) If the court finds that the best interests of the community will be served and the public will not be harmed and if the court places its reasons on the record, the court may impose a sentence that is less than the sentence required under
sub. (1) or may place the person on probation under any of the following circumstances:
939.617(2)(a)
(a) If the person is convicted of a violation of
s. 948.05, the person is no more than 48 months older than the child who is the victim of the violation.
939.617(2)(b)
(b) If the person is convicted of a violation of
s. 948.12, the person is no more than 48 months older than the child who engaged in the sexually explicit conduct.
939.617(3)
(3) This section does not apply if the offender was under 18 years of age when the violation occurred.
939.617 Annotation
The legislature had reasonable and practical grounds for making a conviction for using a computer to facilitate a child sex crime under s. 948.075 (1r) subject to a mandatory minimum sentence. Thus, there was a rational basis for the penalty enhancer in sub. (1) and sub. (1) was not unconstitutional as applied to the defendant. State v. Heidke,
2016 WI App 55, ___ Wis. 2d ___,
883 N.W.2d 162,
15-1420.
939.617 Annotation
This section has a plain and unambiguous meaning. When faced with a conviction for possessing child pornography, sub. (1) requires the court to impose a bifurcated sentence with at least 3 years' initial confinement. Sub. (2) allows the court to depart from this minimum and impose less initial confinement or probation only if the defendant is not more than 48 months older than the child-victim. State v. Holcomb,
2016 WI App 70, ___ Wis. 2d ___, ___ N.W.2d ___,
15-0996.
939.618
939.618
Mandatory minimum sentence for repeat serious sex crimes. 939.618(2)(a)(a) Except as provided in
par. (b), if a person has one or more prior convictions for a serious sex crime and subsequently commits a serious sex crime, the court shall impose a bifurcated sentence under
s. 973.01. The term of confinement in prison portion of a bifurcated sentence imposed under this subsection may not be less than 3 years and 6 months, but otherwise the penalties for the crime apply, subject to any applicable penalty enhancement. The court may not place the defendant on probation.
939.618(2)(b)
(b) If a person has one or more prior convictions for a violation of
s. 940.225 (1) or for a comparable crime under federal law or the law of any state and subsequently is convicted of a violation of
s. 940.225 (1), the maximum term of imprisonment for the violation of
s. 940.225 (1) is life imprisonment without the possibility of parole or extended supervision.
939.618 History
History: 1993 a. 97,
227;
1997 a. 326;
2001 a. 109;
2005 a. 271;
2005 a. 433 s.
16; Stats. 2005 s. 939.618.
939.619
939.619
Mandatory minimum sentence for repeat serious violent crimes. 939.619(2)
(2) If a person has one or more prior convictions for a serious violent crime or a crime punishable by life imprisonment and subsequently commits a serious violent crime, the court shall impose a bifurcated sentence under
s. 973.01. The term of confinement in prison portion of a bifurcated sentence imposed under this subsection may not be less than 3 years and 6 months, but otherwise the penalties for the crime apply, subject to any applicable penalty enhancement. The court may not place the defendant on probation.
939.619 History
History: 1993 a. 97;
2001 a. 109;
2005 a. 433 s.
17; Stats. 2005 s. 939.619.
939.62
939.62
Increased penalty for habitual criminality. 939.62(1)(1) If the actor is a repeater, as that term is defined in
sub. (2), and the present conviction is for any crime for which imprisonment may be imposed, except for an escape under
s. 946.42 or a failure to report under
s. 946.425, the maximum term of imprisonment prescribed by law for that crime may be increased as follows:
939.62(1)(a)
(a) A maximum term of imprisonment of one year or less may be increased to not more than 2 years.
939.62(1)(b)
(b) A maximum term of imprisonment of more than one year but not more than 10 years may be increased by not more than 2 years if the prior convictions were for misdemeanors and by not more than 4 years if the prior conviction was for a felony.
939.62(1)(c)
(c) A maximum term of imprisonment of more than 10 years may be increased by not more than 2 years if the prior convictions were for misdemeanors and by not more than 6 years if the prior conviction was for a felony.
939.62(2)
(2) The actor is a repeater if the actor was convicted of a felony during the 5-year period immediately preceding the commission of the crime for which the actor presently is being sentenced, or if the actor was convicted of a misdemeanor on 3 separate occasions during that same period, which convictions remain of record and unreversed. It is immaterial that sentence was stayed, withheld or suspended, or that the actor was pardoned, unless such pardon was granted on the ground of innocence. In computing the preceding 5-year period, time which the actor spent in actual confinement serving a criminal sentence shall be excluded.
939.62(2m)(a)1m.a.
a. A violation of
s. 948.02,
948.025,
948.05,
948.051,
948.055,
948.06,
948.07,
948.08,
948.085,
948.095 or
948.30 or, if the victim was a minor and the convicted person was not the victim's parent, a violation of
s. 940.31.
939.62(2m)(a)1m.b.
b. A crime at any time under federal law or the law of any other state or, prior to July 16, 1998, under the law of this state that is comparable to a crime specified in
subd. 1m. a.
939.62(2m)(a)2m.a.
a. Any felony under
s. 961.41 (1),
(1m) or
(1x) that is a Class A, B, or C felony or, if the felony was committed before February 1, 2003, that is or was punishable by a maximum prison term of 30 years or more.
939.62(2m)(a)2m.b.
b. Any felony under s.
940.09 (1), 1999 stats., s.
943.23 (1m) or
(1r), 1999 stats., s.
948.35 (1) (b) or
(c), 1999 stats., or s.
948.36, 1999 stats., or
s. 940.01,
940.02,
940.03,
940.05,
940.09 (1c),
940.16,
940.19 (5),
940.195 (5),
940.21,
940.225 (1) or
(2),
940.305,
940.31,
941.327 (2) (b) 4.,
943.02,
943.10 (2),
943.23 (1g),
943.32 (2),
946.43 (1m),
948.02 (1) or
(2),
948.025,
948.03 (2) (a) or
(c) or
(5) (a) 1.,
2.,
3., or
4.,
948.05,
948.06,
948.07,
948.075,
948.08,
948.085, or
948.30 (2).
939.62(2m)(a)2m.d.
d. A crime at any time under federal law or the law of any other state or, prior to April 28, 1994, under the law of this state that is comparable to a crime specified in
subd. 2m. a.,
am.,
b., or
c.
939.62(2m)(b)
(b) The actor is a persistent repeater if one of the following applies:
939.62(2m)(b)1.
1. The actor has been convicted of a serious felony on 2 or more separate occasions at any time preceding the serious felony for which he or she presently is being sentenced under
ch. 973, which convictions remain of record and unreversed and, of the 2 or more previous convictions, at least one conviction occurred before the date of violation of at least one of the other felonies for which the actor was previously convicted.
939.62(2m)(b)2.
2. The actor has been convicted of a serious child sex offense on at least one occasion at any time preceding the date of violation of the serious child sex offense for which he or she presently is being sentenced under
ch. 973, which conviction remains of record and unreversed.
939.62(2m)(bm)
(bm) For purposes of counting a conviction under
par. (b), it is immaterial that the sentence for the previous conviction was stayed, withheld or suspended, or that the actor was pardoned, unless the pardon was granted on the ground of innocence.
939.62(2m)(c)
(c) If the actor is a persistent repeater, the term of imprisonment for the felony for which the persistent repeater presently is being sentenced under
ch. 973 is life imprisonment without the possibility of parole or extended supervision.
939.62(2m)(d)
(d) If a prior conviction is being considered as being covered under
par. (a) 1m. b. or
2m. d. as comparable to a felony specified under
par. (a) 1m. a. or
2m. a.,
am.,
b., or
c., the conviction may be counted as a prior conviction under
par. (b) only if the court determines, beyond a reasonable doubt, that the violation relating to that conviction would constitute a felony specified under
par. (a) 1m. a. or
2m. a.,
am.,
b., or
c. if committed by an adult in this state.
939.62(3)
(3) In this section “felony" and “misdemeanor" have the following meanings:
939.62(3)(a)
(a) In case of crimes committed in this state, the terms do not include motor vehicle offenses under
chs. 341 to
349 and offenses handled through proceedings in the court assigned to exercise jurisdiction under
chs. 48 and
938, but otherwise have the meanings designated in
s. 939.60.
939.62(3)(b)
(b) In case of crimes committed in other jurisdictions, the terms do not include those crimes which are equivalent to motor vehicle offenses under
chs. 341 to
349 or to offenses handled through proceedings in the court assigned to exercise jurisdiction under
chs. 48 and
938. Otherwise, felony means a crime which under the laws of that jurisdiction carries a prescribed maximum penalty of imprisonment in a prison or penitentiary for one year or more. Misdemeanor means a crime which does not carry a prescribed maximum penalty sufficient to constitute it a felony and includes crimes punishable only by a fine.
939.62 Cross-reference
Cross-reference: For procedure, see s.
973.12.
939.62 Annotation
Imposition of a 3-year sentence as a repeater was not cruel and unusual even though the conviction involved the stealing of 2 boxes of candy, which carried a maximum sentence of 6 months. Hanson v. State,
48 Wis. 2d 203,
179 N.W.2d 909 (1970).
939.62 Annotation
A repeater charge must be withheld from the jury's knowledge since it is relevant only to sentencing. Mulkovich v. State,
73 Wis. 2d 464,
243 N.W.2d 198 (1976).
939.62 Annotation
This section authorizes penalty enhancement only when the maximum underlying sentence is imposed. The enhancement portion of a sub-maximum sentence is vacated as an abuse of sentencing discretion. State v. Harris,
119 Wis. 2d 612,
350 N.W.2d 633 (1984).
939.62 Annotation
In sub. (2), “convicted of a misdemeanor on 3 separate occasions" requires 3 separate misdemeanors, not 3 separate court appearances. State v. Wittrock,
119 Wis. 2d 664,
350 N.W.2d 647 (1984).
939.62 Annotation
A court's acceptance of a guilty plea or verdict is sufficient to trigger the operation of this section; completion of sentencing is not a prerequisite. State v. Wimmer,
152 Wis. 2d 654,
449 N.W.2d 621 (Ct. App. 1989).
939.62 Annotation
Felony convictions entered following a waiver from juvenile court are a proper basis for a repeater allegation. State v. Kastner,
156 Wis. 2d 371,
457 N.W.2d 331 (Ct. App. 1990).
939.62 Annotation
Sub. (1) is applicable when concurrent maximum sentences are imposed for multiple offenses. Consecutive sentences are not required. State v. Davis,
165 Wis. 2d 78,
477 N.W.2d 307 (Ct. App. 1991).
939.62 Annotation
For offenses under ch. 161 [now ch. 961], the court may apply s. 961.48 or 939.62, but not both. State v. Ray,
166 Wis. 2d 855,
481 N.W.2d 288 (Ct. App. 1992).
939.62 Annotation
Each conviction for a misdemeanor constitutes a “separate occasion" for purposes of sub. (2). State v. Hopkins,
168 Wis. 2d 802,
484 N.W.2d 549 (1992).
939.62 Annotation
Enhancement of a sentence under this section does not violate double jeopardy. State v. James,
169 Wis. 2d 490,
485 N.W.2d 436 (Ct. App. 1992).
939.62 Annotation
This section does not grant a trial court authority to increase a punitive sanction for contempt of court. State v. Carpenter,
179 Wis. 2d 838,
508 N.W.2d 69 (Ct. App. 1993).
939.62 Annotation
The state is charged with proving a prior conviction and that it lies within the 5-year window of sub. (2). State v. Goldstein,
182 Wis. 2d 251,
513 N.W.2d 631 (Ct. App. 1994).
939.62 Annotation
A guilty plea without a specific admission to repeater allegations is not sufficient to establish the facts necessary to impose the repeater penalty enhancer. State v. Zimmermann,
185 Wis. 2d 549,
518 N.W.2d 303 (Ct. App. 1994).
939.62 Annotation
When a defendant does not admit to habitual criminality, the state must prove the alleged repeater status beyond a reasonable doubt. State v. Theriault,
187 Wis. 2d 125,
522 N.W.2d 264 (Ct. App. 1994).
939.62 Annotation
A commitment under the Sex Crimes Law, ch. 975, is not a sentence under sub. (2). State v. Kruzycki,
192 Wis. 2d 509,
531 N.W.2d 429 (Ct. App. 1995).
939.62 Annotation
Sub. (2m) (b) is constitutional. It does not violate the guaranty against cruel and unusual punishment, the principal of separation of powers, or the guaranty of equal protection. State v. Lindsey,
203 Wis. 2d 423,
554 N.W.2d 215 (Ct. App. 1996),
95-3392.
939.62 Annotation
A conviction for purposes of sub. (2) occurs when the judgment of conviction under s. 972.13 is entered, not the date that guilt is found. Mikrut v. State,
212 Wis. 2d 859,
569 N.W.2d 765 (Ct. App. 1997),
96-2703.
939.62 Annotation
Section 973.13 commands that all sentences in excess of that authorized by law be declared void, including the repeater portion of a sentence. Prior postconviction motions that failed to challenge the validity of the sentence do not bar seeking relief from faulty repeater sentences. State v. Flowers,
221 Wis. 2d 20,
586 N.W.2d 175 (Ct. App. 1998),
97-3682.
939.62 Annotation
When the state charged the defendant as a repeater under subs. (1) (c) and (2), then charged the defendant as a repeater under sub. (2m) in the information, it abandoned the earlier charges and could not resurrect them when the latter charge proved to be invalid. State v. Thoms,
228 Wis. 2d 868,
599 N.W.2d 84 (Ct. App. 1999),
98-3260.
939.62 Annotation
Confinement time spent on various parole holds qualifies as actual confinement serving a criminal sentence thereby extending the 5-year period under sub. (2). State v. Price,
231 Wis. 2d 229,
604 N.W.2d 898 (Ct. App. 1999),
99-0746.
939.62 Annotation
A circuit court may not determine the validity of a prior conviction during an enhanced sentencing proceeding predicated on the prior conviction unless the offender alleges that a violation of the right to a lawyer occurred in the prior conviction. The offender may use whatever means are available to challenge the other conviction in another forum, and if successful, seek to reopen the enhanced sentence. State v. Hahn,
2000 WI 118,
238 Wis. 2d 889,
618 N.W.2d 528,
99-0554.
939.62 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.
939.62 Annotation
For purposes of applying this section, the definition of “crime" in s. 939.12 as “conduct which is prohibited by state law and punishable by fine or imprisonment or both" is applicable to statutes outside of chs. 939 to 948 and 951. State v. Sveum,
2002 WI App 105,
254 Wis. 2d 868,
648 N.W.2d 496,
01-0230.
939.62 Annotation
An uncertified copy of a prior judgment of conviction may be used to prove a convicted defendant's status as a habitual criminal. The rules of evidence do not apply to documents offered during a circuit court's presentence determination of whether a qualifying prior conviction exists. The state has the burden of proof and must offer proof beyond a reasonable doubt of the conviction. State v. Saunders,
2002 WI 107,
255 Wis. 2d 589,
649 N.W.2d 263,
01-0271.
939.62 Annotation
A defendant's admission that an out-of-state crime is a serious felony does not relieve a court of its obligation to make an independent determination on that issue. The trial court's failure to make that finding did not prevent the appellate court from making it. State v. Collins,
2002 WI App 177,
256 Wis. 2d 697,
649 N.W.2d 325,
01-2185.
939.62 Annotation
A defendant convicted of a second or subsequent OWI is subject to the penalty enhancements provided for in both ss. 346.65 (2) and 939.62, if the application of each enhancer is based on a separate and distinct prior conviction or convictions. State v. Delaney,
2003 WI 9,
259 Wis. 2d 77,
658 N.W.2d 416,
01-1051.
939.62 Annotation
In determining whether a prior offense was a serious child sex offense under sub. (2m), a court may apply an elements only test but may also conduct a comparable analysis by considering whether the defendant's conduct under the statute governing the prior conviction would constitute a felony under the current statute. State v. Wield,
2003 WI App 179,
266 Wis. 2d 872,
668 N.W.2d 823,
02-2242.
939.62 Annotation
For purposes of computation of the 5-year period under sub. (2), time spent in the least restrictive phase of the intensive sanctions program is time spent in actual confinement serving a criminal sentence that is excluded. The intensive sanctions program operates as a correctional institution, is deemed a confinement classification, and is more restrictive than ordinary probation or parole supervision or extended supervision. State v. Pfeil,
2007 WI App 241,
306 Wis. 2d 237,
742 N.W.2d 573,
06-2771.
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.
939.62 Annotation
Sub. (3) (a) has no bearing upon the last sentence of sub. (2), which does not use the word “felony” or “misdemeanor” at all, but is concerned only with “time” a defendant “spent in confinement” on a “criminal sentence,” without any regard to the type of offense underlying that time. Nothing in these provision suggests that time a defendant spent in actual confinement on a criminal sentence under sub. (2) does not include time related to a motor vehicle offense conviction. State v. Cooper,
2016 WI App 63, ___ Wis. 2d ___, ___ N.W.2d ___,
15-1160.
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:
