Chapter 971

971.37(1) (1) In this section, “child sexual abuse” means an alleged violation of s. 940.225, 948.02, 948.025, 948.05, 948.06, 948.085, or 948.095 if the alleged victim is a minor and the person accused of, or charged with, the violation:

971.37(1)(a) (a) Lives with or has lived with the minor;

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) (1m) 

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)1. 1. A person accused of or charged with child sexual abuse.

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)(a)3. 3. A person accused of or charged with a violation of s. 813.12 (8) (a).

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) (c)

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 History History: 1979 c. 111; 1981 c. 88, 366; 1983 a. 204; 1987 a. 27; 1987 a. 332 s. 64; 1991 a. 39; 1993 a. 227, 262, 319; 1995 a. 343, 353, 456; 1997 a. 35, 143; 2003 a. 139; 2005 a. 277; 2011 a. 35, 266; 2015 a. 172.

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)(d) (d) The offender’s criminal history.

971.41(2)(e) (e) Prior referrals of the offender to the program.

971.41(2)(f) (f) Whether other charges under s. 943.24 are pending against the offender.

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)(c) (c) Pay administrative fees assessed under sub. (7).

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)2. 2. The attorney has authorized the communication.

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.

971.41(5)(d) (d) A district attorney may cancel a contract entered into with a private entity under this subsection if any of the following occur:

971.41(5)(d)1. 1. The private entity or a principal of the private entity is convicted of any of the following:

971.41(5)(d)1.a. a. A felony under any state or federal law.

971.41(5)(d)1.b. b. A misdemeanor under any state or federal law if proof of the defendant’s dishonesty is an essential element of the offense or if the offense relates to debt collection.

971.41(5)(d)2. 2. The private entity uses or threatens to use force or violence against an offender, a member of his or her family, or his or her property.

971.41(5)(d)3. 3. The private entity threatens the seizure, attachment, or sale of an offender’s property without disclosing that prior court proceedings are required.

971.41(5)(d)4. 4. The private entity, with knowledge that the statement is false, makes or threatens to make a statement to a 3rd party that adversely affects an offender’s reputation for creditworthiness.

971.41(5)(d)5. 5. The private entity initiates or threatens to initiate communication with an offender’s employer. This subdivision does not apply if the communication is authorized under a court order or federal law or if all of the following apply:

971.41(5)(d)5.a. a. An offender’s payment is 30 or more days past due.

971.41(5)(d)5.b. b. The private entity has provided written notice to the offender at his or her last known address, at least 5 days beforehand, of its intent to communicate with the employer.

971.41(5)(d)6. 6. The private entity harasses an offender, including by doing any of the following:

971.41(5)(d)6.a. a. Communicating with the offender or a member of his or her family at any unusual time or place or at a time or place that the private entity knows or has reason to know is inconvenient to the offender or the family member. In the absence of evidence to the contrary, the private entity shall be presumed to know that communicating with an offender or a member of his or her family at his or her residence before 8:00 a.m. or after 9:00 p.m. is inconvenient to the offender or the family member.

971.41(5)(d)6.b. b. Publishing or threatening to publish the offender’s name on a list of offenders who allegedly refuse to pay restitution. This subd. 6. b. does not apply if the district attorney authorizes the publication of the offender’s name in such a manner.

971.41(5)(d)6.c. c. Advertising or threatening to advertise the sale of financial information regarding the offender in order to coerce the offender to pay restitution.

971.41(5)(d)6.d. d. Disclosing or threatening to disclose information concerning the alleged violation of s. 943.24 without disclosing or agreeing to disclose the fact that the offender disputes the allegations. This subd. 6. d. applies only if the private entity knows that the offender reasonably disputes the allegations.

971.41(5)(d)6.e. e. Disclosing or threatening to disclose information relating to an offender’s case to any person other than the victim, the district attorney, or persons to whom the district attorney has properly authorized disclosure.

971.41(5)(d)6.f. f. Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the number called.

971.41(5)(d)6.g. g. Using profane, obscene, or abusive language in communicating with an offender, a member of his or her family, or others.

971.41(5)(d)6.h. h. Engaging in any conduct which the district attorney finds was intended to cause and did cause mental or physical illness to the offender or a member of his or her family.

971.41(5)(d)6.i. i. Attempting or threatening to enforce a claimed right or remedy with knowledge or reason to know that the claimed right or remedy does not exist.

971.41(5)(d)6.j. j. Except as authorized by the district attorney, engaging in any form of communication that simulates legal or judicial process or that conveys the impression that the communication is being made, is authorized, or is approved by a governmental agency or official or by an attorney when it is not.

971.41(5)(d)6.k. k. Using any badge, uniform, or other thing to indicate that the person is a government employee or official, except as authorized by law or by the district attorney.

971.41(5)(d)6.L. L. Conducting business under a particular name or implying that the business has a particular name if the use of the name has not been authorized by the district attorney.

971.41(5)(d)6.m. m. Misrepresenting the amount of restitution alleged to be owed by an offender.

971.41(5)(d)6.n. n. Except as authorized by the district attorney, representing that an existing restitution amount may be increased by the addition of attorney fees, investigation fees, or any other fees or charges when those fees or charges may not legally be added.

971.41(5)(d)6.o. o. Except as authorized by the district attorney, representing that the private entity is an attorney or an agent for an attorney if the entity is not.