939.48 Annotation
When a defendant successfully makes self-defense an issue, the jury must be instructed as to the state's burden of proof regarding the nature of the crime, even if the defense is a negative defense. Wisconsin JI-Criminal 801 informs the jury that it “should consider the evidence relating to self-defense in deciding whether the defendant's conduct created an unreasonable risk to another. If the defendant was acting lawfully in self-defense, [his] conduct did not create an unreasonable risk to another." This instruction implies that the defendant must satisfy the jury that the defendant was acting in self-defense and removes the burden of proof from the state to show that the defendant was engaged in criminally reckless conduct. State v. Austin,
2013 WI App 96,
349 Wis. 2d 744,
836 N.W.2d 833,
12-0011.
939.48 Annotation
When the circuit court instructed the jury to “consider the evidence relating to ... defense of others, in deciding whether defendant's conduct created an unreasonable risk.... If the defendant was acting lawfully in defense of others, his conduct did not create an unreasonable risk to another," the instruction on the state's burden of proof on defendant's defense of others defense was wholly omitted and the instructions were erroneous. State v. Austin,
2013 WI App 96,
349 Wis. 2d 744,
836 N.W.2d 833,
12-0011.
939.48 Annotation
Sub. (1m) does not justify continued use of deadly force against an intruder when that intruder is no longer in the actor's dwelling. The applicable definition of the actor's dwelling, s. 895.07 (1) (h), requires that the part of the lot or site in question be “devoted to residential use." While s. 895.07 (1) (h) lists several parts of a residential lot that are part of a “dwelling," it does not include a parking lot. The common denominator of the listed parts of dwellings is that all are property over which the actor has exclusive control. An apartment building parking lot is not exclusive to one tenant or devoted to the residential use of any one tenant. State v. Chew,
2014 WI App 116,
358 Wis. 2d 368,
856 N.W.2d 541,
13-2592.
939.48 Annotation
Wisconsin law establishes a low bar that the accused must surmount to be entitled to a jury instruction on the privilege of self-defense. The accused need produce only “some evidence" in support of the privilege of self-defense. State v. Stietz,
2017 WI 58,
369 Wis. 2d 222,
880 N.W.2d 182,
14-2701.
939.48 Annotation
The jury instruction for self-defense in this case was not erroneous. The circuit court gave the jury a general instruction on the state's burden to establish guilt beyond a reasonable doubt. Because self-defense is a negative defense, the state disproves self-defense beyond a reasonable doubt if the state proves the elements of the crime beyond a reasonable doubt, specifically criminal negligence. Therefore, the jury was aware that the state had to prove criminal negligence—the element that self-defense would negate—beyond a reasonable doubt. State v. Langlois,
2018 WI 73,
382 Wis. 2d 414,
913 N.W.2d 812,
16-1409.
939.48 Annotation
A person may employ deadly force against another, if the person reasonably believes that force is necessary to protect a 3rd-person or one's self from imminent death or great bodily harm, without incurring civil liability for injury to the other. Clark v. Ziedonis,
513 F. 2d 79 (1975).
939.48 Annotation
Self-defense — prior acts of the victim. 1974 WLR 266.
939.48 Annotation
State v. Camacho: The Judicial Creation of an Objective Element to Wisconsin's Law of Imperfect Self-defense Homicide. Leiser. 1995 WLR 742.
939.48 Annotation
Home Safe Home: Wisconsin's Castle Doctrine and Trespasser Liability Laws. Hinkston. Wis. Law. July 2013.
939.49
939.49
Defense of property and protection against retail theft. 939.49(1)(1)
A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with the person's property. Only such degree of force or threat thereof may intentionally be used as the actor reasonably believes is necessary to prevent or terminate the interference. It is not reasonable to intentionally use force intended or likely to cause death or great bodily harm for the sole purpose of defense of one's property.
939.49(2)
(2) A person is privileged to defend a 3rd person's property from real or apparent unlawful interference by another under the same conditions and by the same means as those under and by which the person is privileged to defend his or her own property from real or apparent unlawful interference, provided that the person reasonably believes that the facts are such as would give the 3rd person the privilege to defend his or her own property, that his or her intervention is necessary for the protection of the 3rd person's property, and that the 3rd person whose property the person is protecting is a member of his or her immediate family or household or a person whose property the person has a legal duty to protect, or is a merchant and the actor is the merchant's employee or agent. An official or adult employee or agent of a library is privileged to defend the property of the library in the manner specified in this subsection.
939.49(3)
(3) In this section “unlawful" means either tortious or expressly prohibited by criminal law or both.
939.49 Annotation
Sub. (1) is a defense to criminal liability. It is irrelevant to the issue of whether the emergency doctrine can apply in a civil action to excuse a party's contributory negligence. Kelly v. Berg,
2015 WI App 69,
365 Wis. 2d 83,
870 N.W.2d 481,
14-1346.
939.49 Annotation
Flight on the part of one suspected of a felony does not, of itself, warrant the use of deadly force by an arresting officer, and it is only in certain aggravated circumstances that a police officer may shoot a fleeing suspect. Clark v. Ziedonis,
368 F. Supp. 544 (1973).
PENALTIES
939.50
939.50
Classification of felonies. 939.50(1)(1)
Felonies in the statutes are classified as follows:
939.50(2)
(2) A felony is a Class A, B, C, D, E, F, G, H, or I felony when it is so specified in the statutes.
939.50(3)
(3) Penalties for felonies are as follows:
939.50(3)(b)
(b) For a Class B felony, imprisonment not to exceed 60 years.
939.50(3)(c)
(c) For a Class C felony, a fine not to exceed $100,000 or imprisonment not to exceed 40 years, or both.
939.50(3)(d)
(d) For a Class D felony, a fine not to exceed $100,000 or imprisonment not to exceed 25 years, or both.
939.50(3)(e)
(e) For a Class E felony, a fine not to exceed $50,000 or imprisonment not to exceed 15 years, or both.
939.50(3)(f)
(f) For a Class F felony, a fine not to exceed $25,000 or imprisonment not to exceed 12 years and 6 months, or both.
939.50(3)(g)
(g) For a Class G felony, a fine not to exceed $25,000 or imprisonment not to exceed 10 years, or both.
939.50(3)(h)
(h) For a Class H felony, a fine not to exceed $10,000 or imprisonment not to exceed 6 years, or both.
939.50(3)(i)
(i) For a Class I felony, a fine not to exceed $10,000 or imprisonment not to exceed 3 years and 6 months, or both.
939.51
939.51
Classification of misdemeanors. 939.51(2)
(2) A misdemeanor is a Class A, B or C misdemeanor when it is so specified in chs.
939 to
951.
939.51(3)
(3) Penalties for misdemeanors are as follows:
939.51(3)(a)
(a) For a Class A misdemeanor, a fine not to exceed $10,000 or imprisonment not to exceed 9 months, or both.
939.51(3)(b)
(b) For a Class B misdemeanor, a fine not to exceed $1,000 or imprisonment not to exceed 90 days, or both.
939.51(3)(c)
(c) For a Class C misdemeanor, a fine not to exceed $500 or imprisonment not to exceed 30 days, or both.
939.52
939.52
Classification of forfeitures. 939.52(2)
(2) A forfeiture is a Class A, B, C, D or E forfeiture when it is so specified in chs.
939 to
951.
939.52(3)
(3) Penalties for forfeitures are as follows:
939.52(3)(a)
(a) For a Class A forfeiture, a forfeiture not to exceed $10,000.
939.52(3)(b)
(b) For a Class B forfeiture, a forfeiture not to exceed $1,000.
939.52(3)(c)
(c) For a Class C forfeiture, a forfeiture not to exceed $500.
939.52(3)(d)
(d) For a Class D forfeiture, a forfeiture not to exceed $200.
939.52(3)(e)
(e) For a Class E forfeiture, a forfeiture not to exceed $25.
939.60
939.60
Felony and misdemeanor defined. A crime punishable by imprisonment in the Wisconsin state prisons is a felony. Every other crime is a misdemeanor.
939.60 History
History: 1977 c. 418 s.
924 (18) (e).
939.60 Annotation
When a statutory offense does not specify a place of confinement, a sentence of one year may be to either the county jail or the state prisons. All crimes punishable by imprisonment in the state prisons are classified as felonies. State ex rel. McDonald v. Douglas County Circuit Ct.
100 Wis. 2d 569,
302 N.W.2d 462 (1981).
939.61
939.61
Penalty when none expressed. 939.61(1)(1)
If a person is convicted of an act or omission prohibited by statute and for which no penalty is expressed, the person shall be subject to a forfeiture not to exceed $200.
939.61(2)
(2) If a person is convicted of a misdemeanor under state law for which no penalty is expressed, the person may be fined not more than $500 or imprisoned not more than 30 days or both.
939.61(3)
(3) Common law penalties are abolished.
939.61 History
History: 1977 c. 173.
939.615
939.615
Lifetime supervision of serious sex offenders. 939.615(1)(a)
(a) “Department" means the department of corrections.
939.615(1)(b)
(b) “Serious sex offense" means any of the following:
939.615(1)(b)1.
1. A violation, or the solicitation, conspiracy, or attempt to commit a violation, of s.
940.22 (2),
940.225 (1),
(2), or
(3),
948.02 (1) or
(2),
948.025 (1),
948.05 (1) or
(1m),
948.051,
948.055 (1),
948.06,
948.07,
948.075,
948.08,
948.085,
948.11 (2) (a),
948.12, or
948.13 or of s.
940.302 (2) if s.
940.302 (2) (a) 1. b. applies.
939.615(1)(b)2.
2. A violation, or the solicitation, conspiracy or attempt to commit a violation, under ch.
940,
942,
943,
944 or
948 other than a violation specified in subd.
1., if the court determines that one of the purposes for the conduct constituting the violation was for the actor's sexual arousal or gratification.
939.615(2)
(2)
When lifetime supervision may be ordered. 939.615(2)(a)
(a) Except as provided in par.
(b), if a person is convicted of a serious sex offense or found not guilty of a serious sex offense by reason of mental disease or defect, the court may, in addition to sentencing the person, placing the person on probation or, if applicable, committing the person under s.
971.17, place the person on lifetime supervision by the department if notice concerning lifetime supervision was given to the person under s.
973.125 and if the court determines that lifetime supervision of the person is necessary to protect the public.
939.615(2)(b)
(b) A court may not place a person on lifetime supervision under this section if the person was previously placed on lifetime supervision under this section for a prior conviction for a serious sex offense or a prior finding of not guilty of a serious sex offense by reason of mental disease or defect and that previous placement on lifetime supervision has not been terminated under sub.
(6).
939.615(2)(c)
(c) If the prosecutor is seeking lifetime supervision for a person who is charged with committing a serious sex offense specified in sub.
(1) (b) 2., the court shall direct that the trier of fact find a special verdict as to whether the conduct constituting the offense was for the actor's sexual arousal or gratification.
939.615(3)
(3)
When lifetime supervision begins. Subject to sub.
(4), the period of lifetime supervision on which a person is placed under this section shall begin at whichever of the following times is applicable:
939.615(3)(a)
(a) If the person is placed on probation for the serious sex offense, upon his or her discharge from probation.
939.615(3)(b)
(b) If the person is sentenced to prison for the serious sex offense, upon his or her discharge from parole or extended supervision.
939.615(3)(c)
(c) If the person is sentenced to prison for the serious sex offense and is being released from prison because he or she has reached the expiration date of his or her sentence, upon his or her release from prison.
