973.076(1)(b)3.
3. In counties having a population of 750,000 or more, the district attorney or the corporation counsel may proceed under subd.
1. 973.076(1)(b)4.
4. If no answer is served or no issue of law or fact has been joined and the time for that service or joining issue has expired, or if any defendant fails to appear at trial after answering or joining issue, the court may render a default judgment as provided in s.
806.02.
973.076(2m)(a)(a) In addition to any penalties under this chapter, the court shall, with due provision for the rights of innocent persons in accordance with sub.
(5), order forfeiture of any property specified in s.
973.075 (1) in accordance with pars.
(b),
(c), and
(d).
973.076(2m)(b)
(b) A criminal complaint must allege the extent of property subject to forfeiture under this subsection. At trial, the court or the jury shall return a special verdict determining the extent of property, if any, that is subject to forfeiture under this subsection. When a special verdict contains a finding of property subject to a forfeiture under this subsection, a judgment of criminal forfeiture shall be entered along with the judgment of conviction under s.
972.13.
973.076(2m)(c)
(c) An injured person has a right or claim to forfeited property or the proceeds derived from forfeited property under this subsection that is superior to any right or claim the state has in the property or proceeds. This paragraph does not grant the injured person priority over state claims or rights by reason of a tax lien or other basis not covered by this section or by s.
973.075 or
973.077. All rights, titles, and interest in property specified in s.
973.075 (1) vest in the state upon the commission of the act giving rise to forfeiture under this subsection.
973.076(2m)(d)
(d) An injured or innocent person may petition the court for relief from the judgment of criminal forfeiture entered under par.
(b) within 30 days after it is entered. The person filing the petition has the burden of satisfying or convincing to a reasonable certainty by the greater weight of the evidence that the person has a bona fide perfected security interest in the property subject to forfeiture in s.
973.075 (1) or any other property subject to forfeiture in sub.
(4). The court may order that a person with a bona fide perfected security interest be paid from the proceeds of the forfeiture or any other equitable relief necessary so as to do substantial justice to the person.
973.076(3)
(3)
Burden of proof. The state shall have the burden of proving by clear and convincing evidence that the property is subject to forfeiture under ss.
973.075 to
973.077.
973.076(3g)
(3g)
Privileges. The defendant or convicted offender may invoke the right against self-incrimination or the marital privilege during the forfeiture-related stage of the prosecution. The trier of fact at the hearing may draw an adverse inference from the invocation of the right or privilege.
973.076(3m)(a)(a) The court may not order the forfeiture of property if the court finds that the forfeiture is grossly disproportional to the crime for which the person whose property was seized was convicted or that the forfeiture is unconstitutionally excessive under the state or federal constitution.
973.076(3m)(b)
(b) A person who is alleging that the forfeiture is grossly disproportional or is unconstitutionally excessive under this subsection shall have the burden of satisfying or convincing to a reasonable certainty by the greater weight of the credible evidence that the forfeiture is grossly disproportional or unconstitutionally excessive.
973.076(3m)(c)
(c) In determining whether the forfeiture is grossly disproportional or unconstitutionally excessive, the court shall consider the following:
973.076(3m)(c)4.
4. The harm that actually resulted from the defendant's conduct.
973.076(3m)(d)
(d) In determining whether the forfeiture is grossly disproportional or unconstitutionally excessive, the court may not consider the value of the property to the state.
973.076(4)
(4)
Action against other property of the person. The court may order the forfeiture of any other property of a defendant up to the value of property found by the court to be subject to forfeiture under s.
973.075 if the property subject to forfeiture meets any of the following conditions:
973.076(4)(b)
(b) Has been transferred or conveyed to, sold to or deposited with a 3rd party.
973.076(4)(d)
(d) Has been substantially diminished in value while not in the actual physical custody of the law enforcement agency.
973.076(4)(e)
(e) Has been commingled with other property that cannot be divided without difficulty.
973.076(5)(a)(a) Notwithstanding sub.
(1) (b) 1., a person who claims to have an ownership interest in property subject to forfeiture as an innocent owner may petition the court for the return of his or her seized property at any time.
973.076(5)(b)
(b) A person who has an ownership interest in property subject to forfeiture that exists at the occurrence of the illegal conduct giving rise to the forfeiture and who claims to be an innocent owner has the burden of proving by clear and convincing evidence that he or she has a legal right, title, or interest in the property seized under this chapter.
973.076(5)(c)
(c) If the requisite showing under par.
(b) has been made, in order to proceed with a forfeiture action against the property, the state has the burden of proving by clear and convincing evidence that the person had actual or constructive knowledge of the underlying crime giving rise to the forfeiture.
973.076(5)(d)
(d) A person who has an ownership interest in property subject to forfeiture that he or she acquired after the occurrence of the conduct giving rise to the forfeiture and who claims to be an innocent owner has the burden of proving by clear and convincing evidence that he or she has a legal right, title, or interest in the property seized under this chapter.
973.076(5)(e)
(e) If the requisite showing under par.
(d) has been made, in order to proceed with a forfeiture action against the property, the state has the burden of proving by clear and convincing evidence that the person had actual or constructive knowledge that the property was subject to forfeiture or that the person was not a bona fide purchaser without notice of any defect in title and for valuable consideration.
973.076(5)(f)
(f) If the state does not meet the burden under par.
(c) or
(e) as to any property, the court shall find that the property is the property of an innocent owner and not subject to forfeiture under this chapter and shall order the state to relinquish all claims of title to the property.
973.076(6)
(6)
Return of property. The court shall order the return of any property subject to forfeiture under ss.
973.075 to
973.077 within 30 days of acquittal or dismissal of charges for the offense which was the basis of the forfeiture action, or 6 months after a seizure which was the basis of the forfeiture action if no charges have been issued and no extension has been granted. If the property is co-owned by 2 or more defendants in a criminal action, and one or more defendant co-owners are acquitted or the charges against him or her are dismissed, the court shall have discretion to dispose of the co-owned property in accordance with the proportionality guidelines in sub.
(3m) as he or she deems appropriate.
973.076(7)
(7)
Attorney fees. A person who prevails in an action to return property subject to forfeiture under ss.
973.075 to
973.077 may be awarded reasonable attorney fees by the state if the court finds that the forfeiting agency or prosecuting attorney has arbitrarily and capriciously pursued the forfeiture action.
973.076 Note
Judicial Council Note, 1984: Sub. (2) (a) has been amended by allowing 60 days after the action is commenced for service of the summons, complaint and affidavit on the defendants. The prior statute, requiring service within 30 days after seizure of the property, was an exception to the general rule of s. 801.02 (2), stats. [Re Order effective Jan. 1, 1985]
973.076 Annotation
Section 801.15 (2) governs extensions of time after the time for setting a hearing has expired. State v. Elliot,
203 Wis. 2d 95,
551 N.W.2d 850 (Ct. App. 1996),
96-0012.
973.076 Annotation
Under former sub. (2) (a), 2001 stats., “adjudication" occurs at the moment of a finding of guilt or innocence by a circuit court and does not embrace an appeal of a conviction. Former sub. (2) (a), 2001 stats., does not contemplate adjournment of forfeiture proceedings pending an appeal of the underlying criminal conviction. State v. One 1997 Ford F-150,
2003 WI App 128,
265 Wis. 2d 264,
665 N.W.2d 411,
02-2685.
973.077
973.077
Burden of proof; liabilities. 973.077(1)(1)
It is not necessary for the state to negate any exemption or exception regarding any crime in any complaint, information, indictment or other pleading or in any trial, hearing or other proceeding under s.
973.076. The burden of proof of any exemption or exception is upon the person claiming it.
973.077(2)
(2) In the absence of proof that a person is the duly authorized holder of an appropriate federal registration or order form, the person is presumed not to be the holder of the registration or form. The burden of proof is upon the person to rebut the presumption.
973.077(3)
(3) No liability is imposed by ss.
973.075 to
973.077 upon any authorized law enforcement officer or employee engaged in the lawful performance of duties.
973.077 History
History: 1981 c. 267.
973.08
973.08
Records accompanying prisoner. 973.08(1)(1)
When any defendant is sentenced to the state prisons, a copy of the judgment of conviction and a copy of any order for restitution under s.
973.20 shall be delivered by the officer executing the judgment to the warden or superintendent of the institution when the prisoner is delivered.
973.08(2)
(2) The transcript of any portion of the proceedings relating to the prisoner's sentencing shall be filed at the institution within 120 days from the date sentence is imposed.
973.08(3)
(3) The transcript of all other testimony and proceedings upon order of a court shall be delivered to a prisoner within 120 days of his or her request.
973.08(4)
(4) The transcript of all other testimony and proceedings upon order of a court shall be delivered to the department within 120 days of its request.
973.08(5)
(5) The clerk of court shall file or deliver a transcript under sub.
(2),
(3) or
(4).
973.08 History
History: 1971 c. 298 s.
26 (1);
1977 c. 187; Sup. Ct. Order, eff. 1-1-80;
1979 c. 221;
1987 a. 398.
973.08 Annotation
For a court order to be entered under sub. (3), at a minimum a requesting prisoner must show that the prisoner either never received, or was denied, access to the requested documents. State v. Wilson,
170 Wis. 2d 720,
490 N.W.2d 48 (Ct. App. 1992).
973.09(1)(a)
(a) Except as provided in par.
(c) or if probation is prohibited for a particular offense by statute, if a person is convicted of a crime, the court, by order, may withhold sentence or impose sentence under s.
973.15 and stay its execution, and in either case place the person on probation to the department for a stated period, stating in the order the reasons therefor. The court may impose any conditions which appear to be reasonable and appropriate. The period of probation may be made consecutive to a sentence on a different charge, whether imposed at the same time or previously. If the court imposes a term of probation under sub.
(2) (a) 1. or
2. or
(b) 2., it shall place its reasons for doing so on the record.
973.09(1)(b)
(b) If the court places the person on probation, the court shall order the person to pay restitution under s.
973.20, unless the court finds there is substantial reason not to order restitution as a condition of probation. If the court does not require restitution to be paid to a victim, the court shall state its reason on the record. If the court does require restitution, it shall notify the department of justice of its decision if the victim may be eligible for compensation under subch.
I of ch. 949.
973.09(1)(c)
(c) When a person is convicted of any crime which is punishable by life imprisonment, the court shall not place the person on probation.
973.09(1)(d)
(d) If a person is convicted of an offense that provides a mandatory or presumptive minimum period of one year or less of imprisonment, a court may place the person on probation under par.
(a) if the court requires, as a condition of probation, that the person be confined under sub.
(4) for at least that mandatory or presumptive minimum period. The person is eligible to earn good time credit calculated under s.
302.43 regarding the period of confinement.
973.09(1)(e)
(e) The court may impose a sentence under s.
973.032, stay its execution and place the person on probation. A court may not provide that a condition of any probation involves participation in the intensive sanctions program.
973.09(1d)
(1d) If a person is placed on probation for a felony or for any violation of ch.
940,
948, or
961, the person, his or her residence, and any property under his or her control may be searched by a law enforcement officer at any time during his or her period of supervision if the officer reasonably suspects that the person is committing, is about to commit, or has committed a crime or a violation of a condition of probation. Any search conducted pursuant to this subsection shall be conducted in a reasonable manner and may not be arbitrary, capricious, or harassing. A law enforcement officer who conducts a search pursuant to this subsection shall, as soon as practicable after the search, notify the department of corrections.
973.09(1g)
(1g) If the court places the person on probation, the court may require, upon consideration of the factors specified in s.
973.20 (13) (a) 2. to
5., that the probationer reimburse the county or the state, as applicable, for any costs for legal representation to the county or the state for the defense of the case. In order to receive this reimbursement, the county or the state public defender shall provide a statement of its costs of legal representation to the defendant and court within the time period set by the court.
973.09(2)
(2) The original term of probation shall be:
973.09(2)(a)1.1. Except as provided in subd.
2., for any of the following misdemeanors, not less than 6 months nor more than 2 years:
973.09(2)(a)1.a.
a. A misdemeanor that the defendant committed while possessing a firearm.
973.09(2)(a)1m.
1m. Except as provided in subd.
2., for Class A misdemeanors not covered by subd.
1., not less than 6 months nor more than one year.
973.09(2)(a)1r.
1r. Except as provided in subd.
2., for misdemeanors not covered by subd.
1. or
1m., not more than one year.
973.09(2)(a)2.
2. If the probationer is convicted of not less than 2 nor more than 4 misdemeanors at the same time, the maximum original term of probation may be increased by one year. If the probationer is convicted of 5 or more misdemeanors at the same time, the maximum original term of probation may be increased by 2 years.
973.09(2)(b)1.1. Except as provided in subd.
2., for felonies, not less than one year nor more than either the maximum term of confinement in prison for the crime or 3 years, whichever is greater.
973.09(2)(b)2.
2. If the probationer is convicted of 2 or more crimes, including at least one felony, at the same time, the maximum original term of probation may be increased by one year for each felony conviction.
973.09(2m)
(2m) If a court imposes a term of probation in excess of the maximum authorized by statute, the excess is void and the term of probation is valid only to the extent of the maximum term authorized by statute. The term is commuted without further proceedings.
973.09(3)(a)(a) Prior to the expiration of any probation period, the court, for cause and by order, may extend probation for a stated period or modify the terms and conditions thereof.
973.09(3)(b)
(b) The department shall notify the sentencing court, any person to whom unpaid restitution is owed and the district attorney of the status of the ordered restitution payments unpaid at least 90 days before the probation expiration date. If payment as ordered has not been made, the court shall hold a probation review hearing prior to the expiration date, unless the hearing is voluntarily waived by the probationer with the knowledge that waiver may result in an extension of the probation period or in a revocation of probation. If the court does not extend probation, it shall issue a judgment for the unpaid restitution and direct the clerk of circuit court to file and enter the judgment in the judgment and lien docket, without fee, unless it finds that the victim has already recovered a judgment against the probationer for the damages covered by the restitution order. If the court issues a judgment for the unpaid restitution, the court shall send to the person at his or her last-known address written notification that a civil judgment has been issued for the unpaid restitution. The judgment has the same force and effect as judgments entered under s.
806.10.
973.09(3)(bg)1.1. At least 90 days before the expiration date of a probationer's period of probation, the department shall notify the sentencing court and district attorney that a probationer owes an unpaid surcharge imposed under s.
973.045. Upon receiving notice from the department, the court shall schedule a probation review hearing to be held before the expiration date of the period of probation unless the probationer either pays the unpaid surcharge before the scheduled hearing date or voluntarily waives the hearing. A waiver of a probation review hearing under this paragraph must include an acknowledgment by the probationer that waiver may result in an extension of the probation period, a modification of the terms and conditions of probation, or a revocation of probation.
973.09(3)(bg)2.
2. If the court does not extend probation, the court shall issue a judgment for the unpaid surcharge and direct the clerk of circuit court to file and enter the judgment in the judgment and lien docket. The judgment has the same force and effect as judgments entered under s.
806.10.
973.09(3)(bg)3.
3. At a probation review hearing scheduled under subd.
1., the department has the burden of proving that the probationer owes an unpaid surcharge imposed under s.
973.045 and the amount of the unpaid surcharge. If the department proves by a preponderance of the evidence that the probationer owes an unpaid surcharge under s.
973.045, the court may, by order, extend the period of probation for a stated period or modify the terms and conditions of probation.
973.09(3)(bg)4.
4. If the court does not extend or modify the terms of probation under subd.
3., the court shall issue a judgment for the unpaid surcharge and direct the clerk of circuit court to file and enter the judgment in the judgment and lien docket without fee. If the court issues a judgment for the unpaid surcharge, the court shall send to the department a written notification that a civil judgment has been issued for the unpaid fees. The judgment has the same force and effect as judgments entered under s.
806.10.
973.09(3)(bm)1.1. At least 90 days before the expiration date of a probationer's period of probation, the department may notify the sentencing court and the district attorney that a probationer owes unpaid fees to the department under s.
304.074.
973.09(3)(bm)2.
2. Upon receiving notice from the department under subd.
1., the court shall schedule a probation review hearing to be held before the expiration date of the period of probation unless the probationer either pays the fees before the scheduled hearing date or voluntarily waives the hearing. A waiver of a probation review hearing under this subdivision shall include an acknowledgement by the probationer that waiver may result in an extension of the probation period, a modification of the terms and conditions of probation or a revocation of probation.
973.09(3)(bm)3.
3. At a probation review hearing under subd.
2., the department has the burden of proving that the probationer owes unpaid fees under s.
304.074 and the amount of the unpaid fees. If the department proves by a preponderance of the evidence that the probationer owes unpaid fees under s.
304.074, the court may, by order, extend the period of probation for a stated period or modify the terms and conditions of probation.
973.09(3)(bm)4.
4. If the court does not extend or modify the terms of probation under subd.
3., it shall issue a judgment for the unpaid fees and direct the clerk of circuit court to file and enter the judgment in the judgment and lien docket, without fee. If the court issues a judgment for the unpaid fees, the court shall send to the department a written notification that a civil judgment has been issued for the unpaid fees. The judgment has the same force and effect as judgments entered under s.
806.10.
973.09(3)(c)
(c) Any of the following may constitute cause for the extension of probation:
973.09(3)(c)1.
1. The probationer has not made a good faith effort to discharge court-ordered payment obligations or to pay fees owed under s.
304.074.
