971.32 History
History: 1993 a. 112,
491.
971.33
971.33
Possession of property, what sufficient. In the prosecution of a crime committed upon or in relation to or in any way affecting real property or any crime committed by stealing, damaging or fraudulently receiving or concealing personal property, it is sufficient if it is proved that at the time the crime was committed either the actual or constructive possession or the general or special property in any part of such property was in the person alleged to be the owner thereof.
971.34
971.34
Intent to defraud. Where the intent to defraud is necessary to constitute the crime it is sufficient to allege the intent generally; and on the trial it shall be sufficient if there appears to be an intent to defraud the United States or any state or any person.
971.36
971.36
Theft; pleading and evidence; subsequent prosecutions. 971.36(1)(1)
In any criminal pleading for theft, it is sufficient to charge that the defendant did steal the property (describing it) of the owner (naming the owner) of the value of (stating the value in money).
971.36(2)
(2) Any criminal pleading for theft may contain a count for receiving the same property and the jury may find all or any of the persons charged guilty of either of the crimes.
971.36(3)
(3) In any case of theft involving more than one theft, all thefts may be prosecuted as a single crime if:
971.36(3)(a)
(a) The property belonged to the same owner and the thefts were committed pursuant to a single intent and design or in execution of a single deceptive scheme;
971.36(3)(b)
(b) The property belonged to the same owner and was stolen by a person in possession of it; or
971.36(3)(c)
(c) The property belonged to more than one owner and was stolen from the same place pursuant to a single intent and design.
971.36(4)
(4) In any case of theft involving more than one theft but prosecuted as a single crime, it is sufficient to allege generally a theft of property to a certain value committed between certain dates, without specifying any particulars. On the trial, evidence may be given of any such theft committed on or between the dates alleged; and it is sufficient to maintain the charge and is not a variance if it is proved that any property was stolen during such period. But an acquittal or conviction in any such case does not bar a subsequent prosecution for any acts of theft on which no evidence was received at the trial of the original charge. In case of a conviction on the original charge on a plea of guilty or no contest, the district attorney may, at any time before sentence, file a bill of particulars or other written statement specifying what particular acts of theft are included in the charge and in that event conviction does not bar a subsequent prosecution for any other acts of theft.
971.36 History
History: 1993 a. 486.
971.36 Annotation
The legislature in sub. (3) (a) has explicitly provided prosecutors with discretion to charge multiple thefts as a single crime when the property belonged to the same owner and the thefts were committed pursuant to a single intent and design or in execution of a single deceptive scheme. State v. Jacobsen,
2014 WI App 13,
352 Wis. 2d 409,
842 N.W.2d 365,
13-0830.
971.36 Annotation
Subs. (3) (a) and (4) allow for aggregation of the value of property alleged stolen where multiple acts of theft are prosecuted as one count. Reading s. 943.20 (1) (a) and subs. (3) (a) and (4) together, multiple acts of theft occurring over a period of time may, in certain circumstances, constitute one continuous offense that is not complete until the last act is completed. State v. Elverman,
2015 WI App 91,
367 Wis. 2d 126,
876 N.W.2d 511,
14-0354.
971.365
971.365
Crimes involving certain controlled substances. 971.365(2)
(2) An acquittal or conviction under sub.
(1) does not bar a subsequent prosecution for any acts in violation of s.
961.41 (1) (em), 1999 stats., s.
961.41 (1m) (em), 1999 stats., s.
961.41 (3g) (a) 2., 1999 stats., or s.
961.41 (3g) (dm), 1999 stats., or s.
961.41 (1) (cm),
(d),
(e),
(f),
(g), or
(h),
(1m) (cm),
(d),
(e),
(f),
(g), or
(h) or
(3g) (am),
(c),
(d),
(e), or
(g) on which no evidence was received at the trial on the original charge.
971.366
971.366
Use of another's personal identifying information: charges. In any case under s.
943.201 or
943.203 involving more than one violation, all violations may be prosecuted as a single crime if the violations were pursuant to a single intent and design.
971.366 History
History: 2003 a. 36.
971.367
971.367
False statements to financial institutions: charges. In any case under s.
946.79 involving more than one violation, all violations may be prosecuted as a single crime if the violations were pursuant to a single intent and design.
971.367 History
History: 2003 a. 36.
971.37
971.37
Deferred prosecution programs; domestic abuse and child sexual abuse. 971.37(1)(b)
(b) Is nearer of kin to the alleged victim than a 2nd cousin;
971.37(1)(c)
(c) Is a guardian or legal custodian of the minor; or
971.37(1)(d)
(d) Is or appears to be in a position of power or control over the minor.
971.37(1m)(a)(a) The district attorney may enter into a deferred prosecution agreement under this section with any of the following:
971.37(1m)(a)2.
2. An adult accused of or charged with a criminal violation of s.
940.19,
940.20 (1m),
940.201,
940.225,
940.23,
940.285,
940.30,
940.42,
940.43,
940.44,
940.45,
940.48,
941.20,
941.30,
943.01,
943.011,
943.14,
943.15,
946.49,
947.01 (1),
947.012 or
947.0125 and the conduct constituting the violation involved an act by the adult person against his or her spouse or former spouse, against an adult with whom the adult person resides or formerly resided or against an adult with whom the adult person has created a child.
971.37(1m)(b)
(b) The agreement shall provide that the prosecution will be suspended for a specified period if the person complies with conditions specified in the agreement. The agreement shall be in writing, signed by the district attorney or his or her designee and the person, and shall provide that the person waives his or her right to a speedy trial and that the agreement will toll any applicable civil or criminal statute of limitations during the period of the agreement, and, furthermore, that the person shall file with the district attorney a monthly written report certifying his or her compliance with the conditions specified in the agreement. The district attorney shall provide the spouse of the accused person and the alleged victim or the parent or guardian of the alleged victim with a copy of the agreement.
971.37(1m)(c)1.1. The agreement may provide as one of its conditions that an adult covered under par.
(a) 2. or
3. pay the domestic abuse surcharge under s.
973.055 and, if applicable, the global positioning system tracking surcharge under s.
973.057. If the agreement requires the person to pay the global positioning system tracking surcharge under s.
973.057, the agreement shall also require the person to pay the domestic abuse surcharge under s.
973.055. Payments and collections of the domestic abuse surcharge and the global positioning system tracking surcharge under this subdivision are subject to s.
973.055 (2) to
(4) or to s.
973.057 (2) and
(3), respectively, except as follows:
971.37(1m)(c)1.a.
a. The district attorney shall determine the amount due. The district attorney may authorize less than a full surcharge if he or she believes that full payment would have a negative impact on the offender's family. The district attorney shall provide the clerk of circuit court with the information necessary to comply with subd.
1. b. 971.37(1m)(c)1.b.
b. The clerk of circuit court shall collect the amount due from the person and transmit it to the county treasurer.
971.37(1m)(c)2.
2. If the prosecution is resumed under sub.
(2) and the person is subsequently convicted, a court shall give the person credit under s.
973.055 and, if applicable, s.
973.057 for any amount paid under subd.
1. 971.37(2)
(2) The written agreement shall be terminated and the prosecution may resume upon written notice by either the person or the district attorney to the other prior to completion of the period of the agreement.
971.37(3)
(3) Upon completion of the period of the agreement, if the agreement has not been terminated under sub.
(2), the court shall dismiss, with prejudice, any charge or charges against the person in connection with the crime specified in sub.
(1m), or if no such charges have been filed, none may be filed.
971.37(4)
(4) Consent to a deferred prosecution under this section is not an admission of guilt and the consent may not be admitted in evidence in a trial for the crime specified in sub.
(1m), except if relevant to questions concerning the statute of limitations or lack of speedy trial. No statement relating to the crime, made by the person in connection with any discussions concerning deferred prosecution or to any person involved in a program in which the person must participate as a condition of the agreement, is admissible in a trial for the crime specified in sub.
(1m).
971.37(5)
(5) This section does not preclude use of deferred prosecution agreements for any alleged violations not subject to this section.
971.37 Annotation
The provision of sub. (4) that consent to a deferred prosecution is not an admission of guilt and the consent may not be admitted in evidence in a trial for the crime is not rendered meaningless if an agreement may require an admission of guilt. Sub. (4) means that should a deferred prosecution agreement be revoked, the defendant's willingness to enter the agreement may not be admitted at trial as evidence of guilt. When a deferred prosecution agreement requires a defendant to enter a plea as a condition, it is the plea itself and not the agreement that constitutes the acknowledgement of guilt. Indeed, if the agreement is dissolved, the plea remains. State v. Daley,
2006 WI App 81,
292 Wis. 2d 517,
716 N.W.2d 146,
05-0048.
971.375
971.375
Deferred prosecution agreements; sanctions. The district attorney may subject a defendant to sanctions as provided in the system developed under s.
301.03 (3) (a) if the defendant violates a condition of a deferred prosecution agreement.
971.375 History
History: 2013 a. 196.
971.38
971.38
Deferred prosecution program; community service work. 971.38(1)(1)
Except as provided in s.
967.055 (3), the district attorney may require as a condition of any deferred prosecution program for any crime that the defendant perform community service work for a public agency or a nonprofit charitable organization. The number of hours of work required may not exceed what would be reasonable considering the seriousness of the alleged offense. An order may only apply if agreed to by the defendant and the organization or agency. The district attorney shall ensure that the defendant is provided a written statement of the terms of the community service order and that the community service order is monitored.
971.38(2)
(2) Any organization or agency acting in good faith to which a defendant is assigned pursuant to an order under this section has immunity from any civil liability in excess of $25,000 for acts or omissions by or impacting on the defendant.
971.38 History
History: 1981 c. 88;
1987 a. 101.
971.39
971.39
Deferred prosecution program; agreements with department. 971.39(1)(1)
Except as provided in s.
967.055 (3), in counties having a population of less than 100,000, if a defendant is charged with a crime, the district attorney, the department and a defendant may all enter into a deferred prosecution agreement which includes, but is not limited to, the following conditions:
971.39(1)(a)
(a) The agreement shall be in writing, signed by the district attorney or his or her designee, a representative of the department and the defendant.
971.39(1)(b)
(b) The defendant admits, in writing, all of the elements of the crime charged.
971.39(1)(c)
(c) The defendant agrees to participate in therapy or in community programs and to abide by any conditions imposed under the therapy or programs.
971.39(1)(d)
(d) The department monitors compliance with the deferred prosecution agreement.
971.39(1)(e)
(e) The district attorney may resume prosecution upon the defendant's failure to meet or comply with any condition of a deferred prosecution agreement.
971.39(1)(f)
(f) The circuit court shall dismiss, with prejudice, any charge which is subject to the agreement upon the completion of the period of the agreement, unless prosecution has been resumed under par.
(e).
971.39(2)
(2) Any written admission under sub.
(1) (b) and any statement relating to the crime under sub.
(1) (intro.), made by the person in connection with any discussions concerning deferred prosecution or to any person involved in a program in which the person must participate as a condition of the agreement, are not admissible in a trial for the crime.
971.39 History
History: 1985 a. 29;
1987 a. 101.
971.39 Annotation
A judgment entered pursuant to a plea agreement withholding sentence and placing the defendant on probation for certain counts while entry of judgment on other counts was deferred provided the defendant committed no additional crimes and abided by the terms of probation was not a deferred prosecution agreement subject to this section. State v. Wollenberg,
2004 WI App 20,
268 Wis. 2d 810,
674 N.W.2d 916,
03-1706.
971.40
971.40
Deferred prosecution agreement; placement with volunteers in probation program. The court, district attorney and defendant may enter into a deferred prosecution agreement for the defendant to be placed with a volunteers in probation program under s.
973.11. The agreement must include the requirement that the defendant comply with the court's order under s.
973.11 (1).
971.40 History
History: 1991 a. 253.
971.41
971.41
Deferred prosecution program; worthless checks. 971.41(1)(1)
Definition. In this section, “offender" means a person charged with, or for whom probable cause exists to charge the person with, a violation of s.
943.24.
971.41(2)
(2) Establishment of program; eligibility criteria. A district attorney may create within his or her office a worthless check deferred prosecution program for offenders who agree to participate in it as an alternative to prosecution. The district attorney may establish criteria for determining an offender's eligibility for the program. Among the factors that the program may use in determining eligibility are the following:
971.41(2)(a)
(a) The face value of any check or order that was involved in the offense.
971.41(2)(b)
(b) If applicable, the reason why the check or order was dishonored by a financial institution.
971.41(2)(c)
(c) Other evidence presented to the district attorney regarding the facts and circumstances of the offense.
971.41(2)(e)
(e) Prior referrals of the offender to the program.
971.41(3)
(3) Conditions of program. A deferred prosecution agreement to which this section applies may require an offender to do any of the following:
971.41(3)(a)
(a) Pay money owed for the worthless check or other order issued in violation of s.
943.24 to the district attorney for remittance to the payee of the worthless check or order.
971.41(3)(b)
(b) Make other payments for restitution for the offense, including payments to reimburse any person for fees assessed by a financial institution in connection with the person attempting to present the worthless check or other order.
971.41(3)(d)
(d) Pay for and successfully complete a class or counseling regarding financial management.
971.41(4)
(4) Offenses covered. The deferred prosecution agreement shall specify the offenses for which prosecution is being deferred and shall describe the checks involved in the transactions. The district attorney shall agree not to prosecute those offenses while the agreement remains in effect or afterward if the offender successfully completes the deferred prosecution program.
971.41(5)
(5) Private contractor operation of program. 971.41(5)(a)(a) A district attorney who establishes a deferred prosecution program under this section may contract with a private entity to operate or administer all or part of the program under the supervision, direction, and control the district attorney.
971.41(5)(b)
(b) A private entity acting under this subsection shall maintain insurance, financial accounting controls, and fund disbursement procedures as required by the district attorney. The district attorney shall audit the accounts of the private entity, but only after providing written notice.
971.41(5)(c)
(c) If an offender who is the subject of a deferred prosecution agreement under this section is represented by an attorney, a private entity acting under this subsection may communicate directly with the offender if any of the following apply:
971.41(5)(c)1.
1. The attorney has not informed the private entity of his or her representation in writing.
971.41(5)(c)3.
3. The private entity has requested authorization for the communication from the attorney, but the attorney has failed to respond to that request within a reasonable period of time.
