973.155 Annotation
When a defendant is unable to satisfy cash-bail requirements on 2 or more unrelated charges, the defendant is entitled to sentence credit on both charges. However, if the defendant is committed following a finding of not guilty by reason of mental defect on one charge, there will be no sentence credit from the commitment against a sentence upon conviction on another of the charges as the confinement after the commitment is solely the result of the commitment. State v. Harr,
211 Wis. 2d 584,
568 N.W.2d 307 (Ct. App. 1997),
96-2815.
973.155 Annotation
An 18-year-old on juvenile aftercare parole who was returned to juvenile detention because the parole was revoked pending sentencing after pleading guilty to an adult crime was eligible for sentence credit for the time spent in juvenile detention prior to sentencing. State v. Thompson,
225 Wis. 2d 578,
593 N.W.2d 875 (Ct. App. 1999),
97-3245.
973.155 Annotation
When a sentence has been withheld and probation imposed, sub. (2) gives the court exclusive authority to determine sentence credit in imposing a postprobation sentence. A person subject to electronic monitoring, but not locked in the home at night, was not in custody and not entitled to sentence credit. State v. Olson,
226 Wis. 2d 457,
595 N.W.2d 460 (Ct. App. 1999),
98-1450.
973.155 Annotation
“Course of conduct" in sub. (1) (a) means the specific act for which the defendant is sentenced. As such, a defendant was not entitled to sentence credit on a later imposed sentence for time already served on sentences arising from the same criminal episode, but different criminal acts. State v. Tuescher,
226 Wis. 2d 465,
595 N.W.2d 443 (Ct. App. 1999),
98-2564.
973.155 Annotation
Pretrial confinement on a dismissed charge that is read in at sentencing relates to an offense for which the offender is ultimately sentenced, entitling the offender to sentence credit. State v. Floyd,
2000 WI 14,
232 Wis. 2d 767,
606 N.W.2d 155,
98-2062.
973.155 Annotation
Boettcher bars a claim for dual credit when the defendant has already received the same credit against a prior sentence that the defendant has already served. State v. Jackson,
2000 WI App 41,
233 Wis. 2d 231,
607 N.W.2d 338,
99-1161.
973.155 Annotation
Detention at the Wisconsin Resource Center while awaiting evaluation and trial on a petition for commitment as a sexually violent person under Chapter 980 satisfies neither the “in custody" nor “in connection with" requirements of this section. The detention does not qualify for sentence credit under this section. Thorson v. Schwarz,
2004 WI 96,
274 Wis. 2d 1,
681 N.W.2d 914,
02-3380.
973.155 Annotation
An offender who has had extended supervision revoked is entitled to sentence credit on any new charges until the trial court resentences him or her for the available remaining term of extended supervision. A reconfinement hearing is a sentencing, and the revocation is not. The defendant was entitled to sentence credit on the new charge from the date of his arrest until the day of sentencing on both charges because while his extended supervision was revoked, his resentencing had not yet occurred. State v. Presley,
2006 WI App 82,
292 Wis. 2d 734,
715 N.W.2d 713,
05-0359.
973.155 Annotation
When a defendant has served jail time as a condition of probation and his or her probation is later revoked and the defendant commences serving an imposed and stayed sentence, the defendant is entitled to sentence credit for days spent in custody while in conditional jail time status, even if that custody is concurrent with service of an unrelated prison sentence. State v. Yanick,
2007 WI App 30,
299 Wis. 2d 456,
728 N.W.2d 365,
06-0849.
973.155 Annotation
Sentence credit must be awarded under sub. (1) (b) for time in custody on an extended supervision hold if the hold was at least in part due to the conduct resulting in the new conviction. State v. Hintz,
2007 WI App 113,
300 Wis. 2d 583,
731 N.W.2d 646,
06-0217.
973.155 Annotation
The underlying purpose of the sentence credit statute is to afford fairness by ensuring that a person not serve more time than that for which he or she is sentenced. A narrow interpretation of the phrase “in connection with" furthers this purpose. If the defendant would have been in custody even if a charged offense had never occurred, the defendant was not treated unfairly by not receiving sentence credit for that time. State v. Johnson,
2007 WI 107,
304 Wis. 2d 318,
735 N.W.2d 505,
05-1492.
973.155 Annotation
Sub. (1) (a) requires an award of credit against each sentence imposed for all days spent in custody in connection with the course of conduct underlying the sentence. The “in connection with the course of conduct" requirement applies individually to each concurrent sentence imposed at the same time. Credit due against any individual sentence is not awarded against a concurrent sentence that was not imposed in connection with the course of conduct giving rise to that individual sentence. State v. Johnson,
2009 WI 57,
318 Wis. 2d 21,
767 N.W.2d 207,
07-1114. See also State v. Carter,
2010 WI 77,
327 Wis. 2d 1,
785 N.W.2d 516,
06-1811.
973.155 Annotation
When an offender is on a parole hold in a different sovereignty that has not acted to revoke parole, the circuit court should grant sentence credit in Wisconsin for the time the offender spent in presentence confinement in Wisconsin. Until the other sovereignty has acted on whether to grant credit, the Wisconsin sentence is the only outstanding sentence against which the court can grant credit. Therefore, the question of “double credit" is not ripe. The Wisconsin court, as the only court the issue of credit is before, should grant credit. State v. Brown,
2010 WI App 43,
324 Wis. 2d 236,
781 N.W.2d 244,
09-0896.
973.155 Annotation
A court, in determining a sentence, may consider the amount of sentence credit to which the defendant is entitled so long as the court does not do so with the purpose of enlarging the sentence to deprive the defendant of his or her right to receive sentence credit. State v. Armstrong,
2014 WI App 59,
354 Wis. 2d 111,
847 N.W.2d 860,
13-1995.
973.155 Annotation
A convicted offender is entitled to credit toward the service of his or her sentence for all days spent in custody in connection with the course of conduct for which sentence was imposed. The defendant in this case was entitled to credit for the time during which he was unable to make cash bail on a burglary charge while he was also confined pursuant to a civil commitment order for contempt of court. Even though the defendant was in custody pursuant to the civil commitment order during the relevant time period, the custody was also in connection with the course of conduct for which the burglary sentence was imposed. State v. Trepanier,
2014 WI App 105,
357 Wis. 2d 662,
855 N.W.2d 465,
14-0178.
973.155 Annotation
While a circuit court may seek assistance from its court clerk in accessing records that may be relevant to its determination, the award of sentence credit is the court's duty and the court must reach its own conclusion on the amount of sentence credit to be awarded and explain its findings and reasoning on the record. State v. Kitt,
2015 WI App 9,
359 Wis. 2d 592,
859 N.W.2d 164,
14-0500.
973.155 Annotation
Sub. (4) applies to inmates serving sentences of one year or less and confined in a county jail. Sub. (4) was not applicable to the defendant who had a sentence of more than one year, and therefore, the defendant was not entitled to the good time earned during his failed probationary period to be applied as sentence credit to his confinement time in prison. Baade v. Hayes,
2015 WI App 71,
365 Wis. 2d 174,
870 N.W.2d 478,
14-2655.
973.155 Annotation
Floyd,
2000 WI 14, remains good law.
Floyd limited the reach of sub. (1) to charges that are dismissed and read in at sentencing. That the trial court discussed a sexual assault, for which the defendant was ultimately acquitted, when sentencing him for an intimidation charge, did not require that the defendant be awarded credit for the time he spent in custody related to the sexual assault charge. State v. Piggue,
2016 WI App 13,
366 Wis. 2d 605,
875 N.W.2d 663,
15-0152.
973.155 Annotation
In order to receive sentence credit under this section, a defendant must have been in custody. Under s. 946.42 (1) (a), custody can either be actual or constructive. Crucially, however, the escape statute is clear that custody does not include constructive custody of a defendant on probation or extended supervision. Whether a defendant is at liberty through no fault of the defendant is irrelevant to a sentence credit determination. State v. Friedlander,
2019 WI 22,
385 Wis. 2d 633,
923 N.W.2d 849,
17-1337.
973.155 Annotation
A defendant who spends time in custody on probation holds is entitled to sentence credit for those time periods against the sentences for all counts charged in connection with the course of conduct for which the sentences were imposed. State v. Zahurones,
2019 WI App 57,
389 Wis. 2d 69,
934 N.W.2d 905,
18-1845.
973.155 Annotation
Jail credit may not be granted if it is not provided for by statute.
71 Atty. Gen. 102.
973.155 Annotation
Sentence Credit: More Than Just Math. White. Wis. Law. Oct. 1991.
973.16
973.16
Time out. If an order or judgment releasing a prisoner on habeas corpus is reversed, the time during which the prisoner was at liberty thereunder shall not be counted as part of the prisoner's term.
973.16 History
History: 1993 a. 486.
973.17
973.17
Judgment against a corporation or limited liability company. 973.17(1)(1)
If a corporation or limited liability company fails to appear within the time required by the summons, the default of such corporation or limited liability company may be recorded and the charge against it taken as true, and judgment shall be rendered accordingly.
973.17(2)
(2) Upon default of the defendant corporation or limited liability company or upon conviction, judgment for the amount of the fine shall be entered.
973.17(3)
(3) A judgment against a corporation or limited liability company shall be collected in the same manner as in civil actions.
973.17 History
History: 1993 a. 112.
973.176
973.176
Notice of restrictions. 973.176(1)(1)
Firearm possession. Whenever a court imposes a sentence or places a defendant on probation regarding a felony conviction, the court shall inform the defendant of the requirements and penalties applicable to him or her under s.
941.29 (1m) or
(4m).
973.176(2)
(2) Voting. Whenever a court imposes a sentence or places a defendant on probation for a conviction that disqualifies the defendant from voting under s.
6.03 (1) (b), the court shall inform the defendant in writing that he or she may not vote in any election until his or her civil rights are restored. The court shall use the form designed by the department of corrections under s.
301.03 (3a) to inform the defendant, and the defendant and a witness shall sign the form.
973.176(3)
(3) Child sex offender working with children. Whenever a court imposes a sentence or places a defendant on probation regarding a conviction under s.
940.22 (2) or
940.225 (2) (c) or
(cm), if the victim is under 18 years of age at the time of the offense, a conviction under s.
940.302 (2) if s.
940.302 (2) (a) 1. b. applies, or a conviction under s.
948.02 (1) or
(2),
948.025 (1),
948.05 (1) or
(1m),
948.051,
948.06,
948.07 (1),
(2),
(3), or
(4),
948.075, or
948.085, the court shall inform the defendant of the requirements and penalties under s.
948.13.
973.176 Annotation
Failure to give the warning under this section does not prevent a conviction under s. 941.29. State v. Phillips,
172 Wis. 2d 391,
493 N.W.2d 270 (Ct. App. 1992).
973.18
973.18
Notice of rights to appeal and representation. 973.18(1)(1)
In this section, “postconviction relief" and “sentencing" have the meanings ascribed in s.
809.30 (1).
973.18(2)
(2) The trial judge shall personally inform the defendant at the time of sentencing of the right to seek postconviction relief and, if indigent, the right to the assistance of the state public defender.
973.18(3)
(3) Before adjourning the sentencing proceeding, the judge shall direct the defendant and defendant's trial counsel to sign a form to be entered in the record, indicating that the lawyer has counseled the defendant regarding the decision to seek postconviction relief, and that the defendant understands that a notice of intent to pursue postconviction relief must be filed in the trial court within 20 days after sentencing for that right to be preserved.
973.18(4)
(4) The judge shall direct the defendant's counsel to confer with the defendant before signing the form, during the proceeding or as soon thereafter as practicable, and may make appropriate orders to allow the defendant to confer with counsel before being transferred to the state prison. The defendant shall be given a copy of the form.
973.18(5)
(5) If the defendant desires to pursue postconviction relief, the defendant's trial counsel shall file the notice required by s.
809.30 (2) (b).
973.18 History
History: Sup. Ct. Order, 123 Wis. 2d xi (1985).
973.18 Note
Judicial Council Note, 1984: Sub. (2) is similar to prior s. 809.30 (1) (b). Subs. (3) and (4) codify State v. Argiz,
101 Wis. 2d 546,
305 N.W.2d 124 (1981). Sub. (5) codifies trial counsel's continuing duty to provide representation until appellate counsel is retained or appointed. Whitmore v. State,
56 Wis. 2d 706, 203 NW 2d 56 (1973). [Re order effective July 1, 1985]
973.19
973.19
Motion to modify sentence. 973.19(1)(a)
(a) A person sentenced to imprisonment or the intensive sanctions program or ordered to pay a fine who has not requested the preparation of transcripts under s.
809.30 (2) may, within 90 days after the sentence or order is entered, move the court to modify the sentence or the amount of the fine.
973.19(2)
(2) Within 90 days after a motion under sub.
(1) (a) is filed, the court shall enter an order either determining the motion or extending the time for doing so by not more than 90 days for cause.
973.19(3)
(3) If an order determining a motion under sub.
(1) (a) is not entered timely under sub.
(2), the motion shall be considered denied and the clerk of the court shall immediately enter an order denying the motion.
973.19(4)
(4) An appeal from an order determining a motion under sub.
(1) (a) is governed by the procedure for civil appeals.
973.19(5)
(5) By filing a motion under sub.
(1) (a) the defendant waives his or her right to file an appeal or postconviction motion under s.
809.30 (2).
973.19 History
History: Sup. Ct. Order, 123 Wis. 2d xiv (1985);
1991 a. 39.
973.19 Note
Judicial Council Note, 1984: This section is intended as an expeditious alternative to the procedure prescribed in s. 809.30 (2) when the only claim for postconviction relief relates to the severity of the sentence. It is not intended to alter the substantive grounds for such relief and it restores the time limits governing such motions prior to the 1978 revision of the appellate rules.
973.19 Note
This section will probably be most frequently used in guilty plea cases, although it is not limited to such cases. However, if the defendant intends to withdraw a guilty plea or file other postconviction motions, s. 809.30 (2) or 974.06 provides the appropriate procedure. Motions under this section should usually be filed by trial counsel without the need for transcripts or for appointment of an appellate public defender. A defendant must elect between the remedies provided by this section and s. 809.30 (2). Filing a motion under this section waives relief under s. 809.30 (2). However, a defendant who has filed a notice of intent to pursue postconviction relief under s. 809.30 (2) (b) may invoke this remedy at any time before transcripts are ordered under s. 809.30 (2). If transcripts are required for prosecution of a motion under sub. (1) (a), they should be sought under
SCR 71.03 (2).
973.19 Note
Sub. (4) does not expand the scope of appellate review. [Re Order effective July 1, 1985.]
973.19 Annotation
The trial court can, on a motion or on its own motion, modify a criminal sentence if the motion is made within 90 days after sentencing. The first judgment should be amended, not vacated. Hayes v. State,
46 Wis. 2d 93,
175 N.W.2d 625 (1970).
973.19 Annotation
Hayes does not impose a jurisdictional limit on the power of a court to review a sentence.
Hayes recognized the inherent power in a trial court to review its sentencing. State ex rel. Warren v. Shawano-Menominee County Court,
54 Wis. 2d 613,
197 N.W.2d 1 (1972).
973.19 Annotation
The trial court's increase of the defendant's sentence based solely on “reflection" did not constitute a valid basis for modification of a sentence. There was no “new factor" justifying a more severe sentence, a prerequisite for sentence reevaluation. Scott v. State,
64 Wis. 2d 54,
218 N.W.2d 350 (1974).
973.19 Annotation
A reduction in the maximum statutory penalty for an offense is not a “new factor" justifying a postconviction motion to modify the sentence. State v. Hegwood,
113 Wis. 2d 544,
335 N.W.2d 399 (1983).
973.19 Annotation
There are two alternative means to seek modification of a sentence; proceeding under sub. (1) (a) or (b). Under either, a motion must be first made in the trial court. State v. Norwood,
161 Wis. 2d 676,
468 N.W.2d 741 (Ct. App. 1991).
973.19 Annotation
Rehabilitation may not be considered as a “new factor" for purposes of modifying an already imposed sentence. State v. Kluck,
210 Wis. 2d 1,
563 N.W.2d 468 (1997),
95-2238.
973.19 Annotation
A defendant subject to a post-probation revocation sentence cannot use s. 809.30 and sub. (1) (b) to raise issues that go the original judgment, but the defendant may take a direct appeal from a subsequent judgment in order to fully litigate issues initially raised by the resentencing. State v. Scaccio,
2000 WI App 265,
240 Wis. 2d 95,
622 N.W.2d 449,
99-3101.
973.19 Annotation
A circuit court has the inherent power to modify a previously imposed sentence after the sentence has commenced, but it may not reduce a sentence merely upon reflection or second thoughts. A court may do so on the basis of new factors or when it concludes its original sentence was unduly harsh or unconscionable. A court's altered view of facts known to the court at sentencing, or a reweighing of their significance, does not constitute a new factor for sentencing purposes but is mere reflection or second thoughts. State v. Grindemann,
2002 WI App 106,
255 Wis. 2d 632,
648 N.W.2d 507,
01-0542.
973.19 Annotation
A defendant can seek sentence modification in two ways: 1) moving for modification as a matter of right under this section, to assert an erroneous exercise of discretion based on excessiveness, undue harshness, or unconscionability; or 2) moving for discretionary review, invoking the inherent power of the circuit court, which applies only if a new factor justifying sentence modification exists, in which case, the timeliness requirements of this section are inapplicable. State v. Noll,
2002 WI App 273,
258 Wis. 2d 573,
653 N.W.2d 895,
01-3341.
973.19 Annotation
A mental health professional who conducted a psychological assessment of a defendant convicted of sexual assault, which was incorporated into the presentence investigation report and admitted into evidence at the sentencing hearing, had a conflict of interest due to the fact that she had treated the victim in the case. The conflict of interest is a new factor justifying the modification of the sentence. State v. Stafford,
2003 WI App 138,
265 Wis. 2d 886,
667 N.W.2d 370,
02-0544.
973.19 Annotation
The existence of a new factor does not automatically entitle the defendant to relief. The question of whether the sentence warrants modification is left to the discretion of the circuit court. State v. Trujillo,
2005 WI 45,
279 Wis. 2d 712,
694 N.W.2d 933,
03-1463.
973.19 Annotation
A new factor refers to a fact or set of facts highly relevant to the imposition of sentence, but not known to the trial judge at the time of original sentencing. A reduction in the maximum penalty after sentencing is not highly relevant to the imposition of sentence and does not constitute a new factor. State v. Trujillo,
2005 WI 45,
279 Wis. 2d 712,
694 N.W.2d 933,
03-1463.
973.19 Annotation
A defendant's substantial and important assistance to law enforcement after sentencing may constitute a new factor that the trial court can take into consideration when deciding whether modification of a sentence is warranted. State v. John Doe,
2005 WI App 68,
280 Wis. 2d 731,
697 N.W.2d 101,
04-0773.
973.19 Annotation
When resentencing based upon a new factor, the court's rationale must clearly reflect the high relevance of the new factor. There must be some connection between the factor and the sentencing; something that strikes at the very purpose for the sentence selected by the trial court. The trial court cannot reduce or increase a sentence upon its reflection that the sentence imposed was harsh or inadequate. State v. Prager,
2005 WI App 95,
281 Wis. 2d 811,
698 N.W.2d 837,
04-0843.
973.19 Annotation
The circuit court's authority to review its decision to determine whether the sentence it imposed is unduly harsh does not include the authority to reduce a sentence based on events that occurred after sentencing. In deciding whether a sentence is unduly harsh, the circuit court's inquiry is confined to whether it erroneously exercised its sentencing discretion based on the information it had at the time of sentencing. A circuit court's authority to modify a sentence based on events that occurred after sentencing is defined by new factor jurisprudence. Because sexual assault in prison is not a new factor under the case law, the circuit court in this case correctly decided that it did not have the authority to modify the sentence based on the assault. State v. Klubertanz,
2006 WI App 71,
291 Wis. 2d 751,
713 N.W.2d 116,
05-1256.
973.19 Annotation
When a defendant seeks modification of the sentence imposed at resentencing, this section and s. 809.30 (2) require the defendant to file a postconviction motion with the circuit court before taking an appeal. These rules on sentence modification apply even though the sentence imposed at resentencing is identical to a previous sentence. The rules apply regardless of whether a defendant challenges the original sentence, a sentence after revocation, or the sentence imposed at resentencing. State v. Walker,
2006 WI 82,
292 Wis. 2d 326,
716 N.W.2d 498,
04-2820.
973.19 Annotation
Once the trial court found that grounds for sentence modification did not exist, particularly with an unrepresented defendant, the trial court should not have converted a motion for sentence modification to a motion for resentencing in the absence of a clear, unequivocal, and knowing stipulation by the defendant. State v. Wood,
2007 WI App 190,
305 Wis. 2d 133,
738 N.W.2d 81,
06-1338.
973.19 Annotation
A defendant has a due process right to be sentenced based on accurate information. The defendant requesting resentencing must prove, by clear and convincing evidence, both that the information is inaccurate and that the trial court relied upon it. Once a defendant does so, the burden shifts to the state to show that the error was harmless. An error is harmless if there is no reasonable probability that it contributed to the outcome. State v. Payette,
2008 WI App 106,
313 Wis. 2d 39,
756 N.W.2d 423,
07-1192.
973.19 Annotation
The Department of Correction's determination that an inmate does not meet the placement criteria for the Challenge Incarceration Program under s. 302.045 does not constitute a new factor for purposes of sentence modification when a trial court has determined at sentencing that the defendant is eligible to participate in the program. Once the trial court has made an eligibility determination, the final placement determination is made by the department. Section 302.045 provides that, if an inmate meets all of the program eligibility criteria, the department “may" place that inmate in the program. It is not the sentencing court's function to classify an inmate to a particular institution or program. State v. Schladweiler,
2009 WI App 177,
322 Wis. 2d 642,
777 N.W.2d 114,
08-3119.
973.19 Annotation
A “new factor" in the context of a motion for sentence modification is a fact or set of facts highly relevant to the imposition of sentence, but not known to the trial judge at the time of original sentencing, either because it was not then in existence or because it was unknowingly overlooked by all of the parties. Frustration of the purpose of the original sentence is not an independent requirement when determining whether a fact or set of facts alleged by a defendant constitutes a new factor. State v. Harbor,
2011 WI 28,
333 Wis. 2d 53,
797 N.W.2d 828,
09-1252.
973.19 Annotation
The defendant did not show “by clear and convincing evidence that a new factor exists" when asserting that the scientific community recently realized that adolescents are generally impulsive and often have trouble making wise choices, such that the information was a new factor that, if known by the trial court at the time of sentencing, might have resulted in a different parole-eligibility date. Even though the studies proffered may not have been in existence at the time of sentencing, the conclusions reached by the studies were already in existence and well reported by that time. State v. McDermott,
2012 WI App 14,
339 Wis. 2d 316,
810 N.W.2d 237,
10-2232.
973.19 Annotation
When fruits of a defendant's substantial presentence assistance to law enforcement authorities are not known until after sentencing, those fruits, if highly relevant to the imposition of the sentence in light of the factors set forth in
Doe, can constitute a new sentencing factor that the trial court can take into consideration when deciding whether modification of a sentence is warranted. State v. Boyden,
2012 WI App 38,
340 Wis. 2d 155,
814 N.W.2d 505,
11-0977.
973.19 Annotation
Repeal of a program that previously allowed inmates convicted of certain offenses to earn potential reductions in their terms of initial confinement for defined positive behavior was not a new factor justifying sentence modification when the possibility of positive adjustment time was not a factor highly relevant to the sentence imposed. State v. Carroll,
2012 WI App 83,
343 Wis. 2d 509,
819 N.W.2d 343,
11-1922.
973.19 Annotation
A postsentencing report that expresses an opinion different from that of the trial court regarding the objectives of sentencing (protection, punishment, rehabilitation, and deterrence) is nothing more than a challenge to the trial court's discretion and does not constitute a new factor for sentence modification purposes. State v. Sobonya,
2015 WI App 86,
365 Wis. 2d 559,
872 N.W.2d 134,
14-2392.
