973.046 Annotation
The imposition of a single $250 DNA surcharge was not punitive for ex post facto purposes because it was discretionary when the defendant committed a felony offense but mandatory when she was sentenced. The defendant failed to show that the mandatory imposition of the DNA surcharge was punitive in either intent or effect and thus violative of the ex post facto prohibition. State v. Scruggs,
2017 WI 15,
373 Wis. 2d 312,
891 N.W.2d 786,
14-2981.
973.046 Annotation
The mandatory DNA surcharge under sub. (1r) is not an ex post facto law because the surcharge is not punishment under the intent-effects test. The intent of the mandatory DNA surcharge is not punitive. Rather, the surcharge is intended to fund the costs associated with the broad expansion of the DNA databank and all the activities related to it. Likewise, a review of the precedential factors guiding the court's analysis shows that the mandatory DNA surcharge does not have a punitive effect.
Radaj,
2015 WI App 50, and
Elward,
2015 WI App 51, were wrongly decided and are overruled. State v. Williams,
2018 WI 59,
381 Wis. 2d 661,
912 N.W.2d 373,
16-0883.
973.046 Annotation
Circuit courts do not have discretion under sub. (1r) to waive imposition of DNA analysis surcharges for crimes committed after January 1, 2014. State v. Cox,
2018 WI 67,
382 Wis. 2d 338,
913 N.W.2d 780,
16-1745.
973.046 Annotation
Plea hearing courts do not have a duty to inform defendants about the mandatory DNA surcharge as part of the plea colloquy because the surcharge is not punishment and therefore not a direct consequence of a plea. State v. Freiboth,
2018 WI App 46,
383 Wis. 2d 733,
916 N.W.2d 643,
15-2535.
973.047
973.047
Deoxyribonucleic acid analysis requirements. 973.047(1f)(1f)
If a court imposes a sentence or places a person on probation, the court shall require the person to provide a biological specimen to the state crime laboratories for deoxyribonucleic acid analysis. The court shall inform the person that he or she may request expungement under s.
165.77 (4).
973.047(1m)
(1m) The results from deoxyribonucleic acid analysis of a specimen provided under this section may be used only as authorized under s.
165.77 (3).
973.047(2)
(2) Biological samples required under sub.
(1f) shall be obtained and submitted as specified in rules promulgated by the department of justice under s.
165.76 (4).
973.048
973.048
Sex offender reporting requirements. 973.048(1m)(a)
(a) Except as provided in sub.
(2m), if a court imposes a sentence or places a person on probation for any violation, or for the solicitation, conspiracy, or attempt to commit any violation, under ch.
940,
944, or
948 or s.
942.08 or
942.09, or ss.
943.01 to
943.15, the court may require the person to comply with the reporting requirements under s.
301.45 if the court determines that the underlying conduct was sexually motivated, as defined in s.
980.01 (5), and that it would be in the interest of public protection to have the person report under s.
301.45.
973.048(1m)(b)
(b) If a court under par.
(a) orders a person to comply with the reporting requirements under s.
301.45 in connection with a violation, or the solicitation, conspiracy, or attempt to commit a violation, of s.
942.09 and the person was under the age of 21 when he or she committed the offense, the court may provide that the person be released from the requirement to comply with the reporting requirements under s.
301.45 upon successfully completing the sentence or probation imposed for the offense. A person successfully completes a sentence if he or she is not convicted of a subsequent offense during the term of the sentence. A person successfully completes probation if probation is not revoked and the person satisfies the conditions of probation.
973.048(2m)
(2m) If a court imposes a sentence or places a person on probation for a violation, or for the solicitation, conspiracy or attempt to commit a violation, of s.
940.22 (2),
940.225 (1),
(2), or
(3),
944.06,
948.02 (1) or
(2),
948.025,
948.05,
948.051,
948.055,
948.06,
948.07,
948.075,
948.08,
948.085,
948.095,
948.11 (2) (a) or
(am),
948.12,
948.13, or
948.30, of s.
940.302 (2) if s.
940.302 (2) (a) 1. b. applies, or of s.
940.30 or
940.31 if the victim was a minor and the person was not the victim's parent, the court shall require the person to comply with the reporting requirements under s.
301.45 unless the court determines, after a hearing on a motion made by the person, that the person is not required to comply under s.
301.45 (1m).
973.048(3)
(3) In determining under sub.
(1m) (a) whether it would be in the interest of public protection to have the person report under s.
301.45, the court may consider any of the following:
973.048(3)(a)
(a) The ages, at the time of the violation, of the person and the victim of the violation.
973.048(3)(b)
(b) The relationship between the person and the victim of the violation.
973.048(3)(d)
(d) Whether the victim suffered from a mental illness or mental deficiency that rendered him or her temporarily or permanently incapable of understanding or evaluating the consequences of his or her actions.
973.048(3)(e)
(e) The probability that the person will commit other violations in the future.
973.048(3)(g)
(g) Any other factor that the court determines may be relevant to the particular case.
973.048(4)
(4) If the court orders a person to comply with the reporting requirements under s.
301.45, the court may order the person to continue to comply with the reporting requirements until his or her death.
973.048(5)
(5) If the court orders a person to comply with the reporting requirements under s.
301.45, the clerk of the court in which the order is entered shall promptly forward a copy of the order to the department of corrections. If the conviction on which the order is based is reversed, set aside or vacated, the clerk of the court shall promptly forward to the department of corrections a certificate stating that the conviction has been reversed, set aside or vacated.
973.048 Cross-reference
Cross-reference: See also ch.
Jus 9, Wis. adm. code.
973.048 Annotation
Sex-offender registration as a condition of bail-jumping probation was not authorized by s. 973.09 (1) (a). Bail jumping is not one of the offenses enumerated in the sex-offender registration statutes, this section or s. 301.45, that permit or require registration, and read-in, but dismissed, sexual assault charges do not bring a case within this section. State v. Martel,
2003 WI 70,
262 Wis. 2d 483,
664 N.W.2d 69,
02-1599.
973.048 Annotation
Sub. (1m) authorizes the circuit court to require that a person convicted of specified crimes, including crimes enumerated in ch. 940, register as a sex offender if the court determines that the underlying conduct was sexually motivated, as defined in s. 980.01(5), and if registration would be in the interest of public protection. Under
Martel,
2003 WI 70, a read-in offense, including sexual assault, may not serve as a basis to order a defendant to register as a sex offender. State v. Jackson,
2012 WI App 76,
343 Wis. 2d 602,
819 N.W.2d 288,
10-2689.
973.049
973.049
Sentencing; restrictions on contact. 973.049(1)(a)
(a) “Co-actor" means any individual who was a party to a crime considered at sentencing, whether or not the individual was charged with or convicted of the crime considered at sentencing.
973.049(1)(b)
(b) “Crime considered at sentencing" means any crime for which the defendant was convicted or any read-in crime, as defined in s.
973.20 (1g) (b).
973.049(2)
(2) When a court imposes a sentence on an individual or places an individual on probation for the conviction of a crime, the court may prohibit the individual from contacting victims of, witnesses to, or co-actors in, a crime considered at sentencing during any part of the individual's sentence or period of probation if the court determines that the prohibition would be in the interest of public protection. For purposes of the prohibition, the court may determine who are the victims of or witnesses to any crime considered at sentencing.
973.049(3)
(3) If a court issues an order under sub.
(2), the court shall inform the individual of the prohibition and include the prohibition in the judgment of conviction for the crime.
973.049 History
History: 2005 a. 32;
2011 a. 267.
973.049 Annotation
Sub. (2) plainly allows a sentencing court to prohibit a defendant from contacting victims of a crime considered at sentencing. The statute clearly states the court may impose this prohibition during any part of the defendant's sentence. The statute also grants the court discretion to determine who is a victim of a crime considered at sentencing. State v. Campbell,
2011 WI App 18,
331 Wis. 2d 91,
794 N.W.2d 276,
10-0905.
973.05(1)(1)
When a defendant is sentenced to pay a fine, the court may grant permission for the payment of the fine, plus costs, fees, and surcharges imposed under ch.
814, to be made within a period not to exceed 60 days. If no such permission is embodied in the sentence, the fine, plus costs, fees, and surcharges imposed under ch.
814, shall be payable immediately.
973.05(1m)
(1m) If the court orders payment of restitution and a fine and related payments under s.
973.20, the court may authorize a payment period in excess of the limit imposed under sub.
(1).
973.05(2)
(2) When a defendant is sentenced to pay a fine and is also placed on probation, the court may make the payment of the fine, plus costs, fees, and surcharges imposed under ch.
814, a condition of probation.
973.05(2m)
(2m) Payments under this section shall be applied as applicable in the following order:
973.05(2m)(a)
(a) To payment of the penalty surcharge until paid in full.
973.05(2m)(b)
(b) To payment of the jail surcharge until paid in full.
973.05(2m)(c)
(c) To payment of part A of the crime victim and witness assistance surcharge imposed before July 2, 2013, until paid in full.
973.05(2m)(d)
(d) To payment of part B of the crime victim and witness assistance surcharge imposed before July 2, 2013, until paid in full.
973.05(2m)(dg)
(dg) To payment of part C of the crime victim and witness assistance surcharge imposed before July 2, 2013, until paid in full.
973.05(2m)(dr)
(dr) To payment of the crime victim and witness surcharge imposed on or after July 2, 2013, until paid in full.
973.05(2m)(e)
(e) To payment of the crime laboratories and drug law enforcement surcharge until paid in full.
973.05(2m)(f)
(f) To payment of the deoxyribonucleic acid analysis surcharge until paid in full.
973.05(2m)(fm)
(fm) To payment of the child pornography surcharge until paid in full.
973.05(2m)(g)
(g) To payment of the drug abuse program improvement surcharge until paid in full.
973.05(2m)(gm)
(gm) To payment of the drug offender diversion surcharge until paid in full.
973.05(2m)(h)
(h) To payment of the driver improvement surcharge until paid in full.
973.05(2m)(i)
(i) To payment of the truck driver education surcharge until paid in full.
973.05(2m)(j)
(j) To payment of the domestic abuse surcharge until paid in full.
973.05(2m)(jm)
(jm) To payment of the global positioning system tracking surcharge until paid in full.
973.05(2m)(k)
(k) To payment of the consumer protection surcharge until paid in full.
973.05(2m)(L)
(L) To payment of the natural resources surcharge until paid in full.
973.05(2m)(m)
(m) To payment of the natural resources restitution surcharge until paid in full.
973.05(2m)(n)
(n) To payment of the environmental surcharge until paid in full.
973.05(2m)(o)
(o) To payment of the wild animal protection surcharge until paid in full.
973.05(2m)(om)
(om) To the payment of the wildlife violator compact surcharge until paid in full.
973.05(2m)(p)
(p) To payment of the weapons surcharge until paid in full.
973.05(2m)(q)
(q) To payment of the uninsured employer surcharge until paid in full.
973.05(2m)(rv)
(rv) To payment of the crime prevention funding board surcharge until paid in full.
973.05(2m)(s)
(s) To payment of the fine and the costs and fees imposed under ch.
814.
973.05(3)(a)(a) In lieu of part or all of a fine imposed by a court, the court may stay the execution of part or all of the sentence and provide that the defendant perform community service work under pars.
(b) and
(c). Any applicable driver improvement surcharge under s.
346.655, any safe ride program surcharge under s.
346.657, or any domestic abuse surcharge under s.
973.055 shall be imposed under ch.
814 regardless of whether part or all of the sentence has been stayed. If the defendant fails to comply with the community service order, the court shall order the defendant brought before the court for imposition of sentence. If the defendant complies with the community service order, he or she has satisfied that portion of the sentence.
973.05(3)(b)
(b) The court may require 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 offense and any other offense which is read into the record at the time of conviction. An order may only apply if agreed to by the defendant and the organization or agency. The court 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.
973.05(3)(c)
(c) Any organization or agency acting in good faith to which a defendant is assigned pursuant to an order under this subsection has immunity from any civil liability in excess of $25,000 for acts or omissions by or impacting on the defendant.
973.05(4)
(4) If a defendant fails to pay the fine, surcharge, costs, or fees within the period specified under sub.
(1) or
(1m), the court may do any of the following:
973.05(4)(a)
(a) Issue a judgment for the unpaid amount and direct the clerk to file and docket a transcript of the judgment, without fee. If the court issues a judgment for the unpaid amount, the court shall send to the defendant at his or her last-known address written notification that a civil judgment has been issued for the unpaid fine, surcharge, costs, or fees. The judgment has the same force and effect as judgments docketed under s.
806.10.
973.05(4)(b)
(b) Issue an order assigning not more than 25 percent of the defendant's commissions, earnings, salaries, wages, pension benefits, benefits under ch.
102, and other money due or to be due in the future to the clerk of circuit court for payment of the unpaid fine, surcharge, costs, or fees. In this paragraph, “employer" includes the state and its political subdivisions.
973.05(4)(c)
(c) Issue an order assigning lottery prizes won by a defendant whose name is on the list supplied to the clerk of circuit court under s.
565.30 (5r) (a), for payment of the unpaid fine, surcharge, costs, or fees.
973.05(4m)
(4m) As provided in s.
767.75 (4), a child support withholding assignment under state law has priority over any assignment or order under sub.
(4).
973.05(5)(a)1.1. Upon entry of the assignment under sub.
(4) (b), unless the court finds that income withholding is likely to cause the defendant irreparable harm, the court shall provide notice of the assignment by regular mail to the last-known address of the person from whom the defendant receives or will receive money. If the clerk of circuit court does not receive the money from the person notified, the court shall provide notice of the assignment to any other person from whom the defendant receives or will receive money. Notice of an assignment under sub.
(4) (b) shall inform the intended recipient that, if a prior assignment under sub.
(4) (b) has been received relating to the same defendant, the recipient is required to notify the clerk of circuit court that sent the subsequent notice of assignment that another assignment has already been received. A notice of assignment shall include a form permitting the recipient to designate on the form that another assignment has already been received.
973.05(5)(a)2.
2. If, after receiving the annual list under s.
565.30 (5r) (a), the clerk of circuit court determines that a person identified in the list may be subject to an assignment under sub.
(4) (c), the clerk shall inform the court of that determination. If the court issues an order under sub.
(4) (c), the clerk of circuit court shall send the notice of that order to the administrator of the lottery division of the department of revenue, including a statement of the amount owed under the judgment and the name and address of the person owing the judgment. The court shall notify the administrator of the lottery division of the department of revenue when the judgment that is the basis of the assignment has been paid in full.
973.05(5)(a)3.
3. Notice under this paragraph may be a notice of the court, a copy of the executed assignment or a copy of that part of the court order which directs payment.
973.05(5)(b)
(b) For each payment made under the assignment under sub.
(4) (b), the person from whom the defendant under the order receives money shall receive an amount equal to the person's necessary disbursements, not to exceed $3, which shall be deducted from the money to be paid to the defendant.
973.05(5)(c)
(c) A person who receives notice of the assignment under sub.
(4) (b) shall withhold the amount specified in the notice from any money that person pays to the defendant later than one week after receipt of the notice of assignment. Within 5 days after the day on which the person pays money to the defendant, the person shall send the amount withheld to the clerk of circuit court of the jurisdiction providing notice. If the person has already received a notice of an assignment under sub.
(4) (b), the person shall retain the later assignment and withhold the amount specified in that assignment after the last of any prior assignments is paid in full. Within 10 days of receipt of the later notice, the person shall notify the clerk of circuit court that sent the notice that the person has received a prior notice of an assignment under sub.
(4) (b). Section
241.09 does not apply to assignments under this section.
973.05(5)(d)
(d) If after receipt of notice of assignment under par.
(a) 1. the person from whom the defendant receives money fails to withhold the money or send the money to the clerk of circuit court as provided in this subsection, the person may be proceeded against under the principal action under ch.
785 for contempt of court or may be proceeded against under ch.
778 and be required to forfeit not less than $50 nor more than an amount, if the amount exceeds $50, that is equal to 1 percent of the amount not withheld or sent.
973.05(5)(e)
(e) If an employer who receives notice of an assignment under sub.
(4) (b) fails to notify the clerk of circuit court within 10 days after an employee is terminated or otherwise temporarily or permanently leaves the employer's employment, the employer may be proceeded against under the principal action under ch.
785 for contempt of court.
973.05(5)(f)
(f) Compliance by the person from whom the defendant receives money with the order operates as a discharge of the person's liability to the defendant as to that portion of the defendant's commission, earnings, salaries, wages, benefits or other money so affected.
973.05(5)(g)
(g) No employer may use an assignment under sub.
(4) (b) as a basis for the denial of employment to a defendant, the discharge of an employee or any disciplinary action against an employee. An employer who denies employment or discharges or disciplines an employee in violation of this paragraph may be fined not more than $500 and may be required to make full restitution to the aggrieved person, including reinstatement and back pay. Restitution shall be in accordance with s.
973.20. An aggrieved person may apply to the district attorney or to the department of workforce development for enforcement of this paragraph.
