Chapter 973

973.09 Annotation An agreement that provided that following a plea of no contest, the defendant would have the opportunity prior to sentencing to procure and return stolen items, and if so the state would amend the charge to a lesser offense and the sentencing would proceed accordingly, was not invalid under Hayes, 167 Wis. 2d 423 (1992). The concerns of the Hayes court regarding the limitations of the probation statute and the trial court’s lack of authority to amend a judgment after completion of a sentence were not implicated. State v. Cash, 2004 WI App 63, 271 Wis. 2d 451, 677 N.W.2d 709, 03-1614.

973.09 Annotation A court cannot avoid the holding in Schell, 2003 WI App 78, by modifying the conditions of probation to order the probationer to refuse home monitoring. State v. Galecke, 2005 WI App 172, 285 Wis. 2d 691, 702 N.W.2d 392, 04-0779.

973.09 Annotation This section provides no authority for issuing orders to county sheriffs to transfer prisoners from one county jail to another. State v. Galecke, 2005 WI App 172, 285 Wis. 2d 691, 702 N.W.2d 392, 04-0779.

973.09 Annotation Convicted at the same time under sub. (2) (a) or (b) is not the same as sentenced at the same time. Because the defendant, although sentenced in separate child support and drug cases at a single hearing, was not convicted at the same time within the meaning of the statute, and therefore not serving a single probationary term, the trial court had the statutory authority to order consecutive periods of conditional jail time exceeding one year in total. State v. Johnson, 2005 WI App 202, 287 Wis. 2d 313, 704 N.W.2d 318, 04-2176.

973.09 Annotation Sub. (2) plainly and unambiguously provides that the maximum term of probation is dependent upon the maximum term of confinement for the crime committed and not the maximum term of imprisonment. The maximum term of probation for Class B to H felonies equals the maximum initial term of confinement for those crimes. State v. Stewart, 2006 WI App 67, 291 Wis. 2d 480, 713 N.W.2d 165, 05-0979.

973.09 Annotation Conditions of probation may impinge upon constitutional rights as long as they are not overly broad and are reasonably related to the person’s rehabilitation. Geographical limitations, while restricting a defendant’s rights to travel and associate, are not per se unconstitutional. Each case must be analyzed on its facts to determine whether the geographic restriction is narrowly drawn. State v. Stewart, 2006 WI App 67, 291 Wis. 2d 480, 713 N.W.2d 165, 05-0979.

973.09 Annotation A civil settlement agreement can have no effect upon a restitution order while the defendant is on probation unless the circuit court first finds that continued enforcement of the restitution order would result in a double recovery for the victim. After a defendant is released from probation and any unpaid restitution becomes a civil judgment, however, a settlement agreement between the victim and the defendant may preclude the victim from enforcing the judgment. Huml v. Vlazny, 2006 WI 87, 293 Wis. 2d 169, 716 N.W.2d 807, 04-0036.

973.09 Annotation When a defendant agrees to reimburse the county for the attorney fees of standby counsel or the circuit court informs the defendant of the defendant’s potential liability for the fees and standby counsel functions as traditional defense counsel, sub. (1g) and s. 973.06 (1) (e) give a circuit court the authority to impose the attorney fees of standby counsel as a condition of probation. If a defendant does not agree to reimburse the county or is not informed of the potential obligation to pay the fees of standby counsel, payment of attorney fees may not be a condition of probation under s. 973.06 (1) (e). When standby counsel acts primarily for the benefit of the court rather than as defense counsel, attorney fees for standby counsel are inappropriate. State v. Campbell, 2006 WI 99, 294 Wis. 2d 100, 718 N.W.2d 649, 04-0803.

973.09 Annotation When a defendant has served jail time as a condition of probation and the defendant’s 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.

973.09 Annotation Sub. (2) limits the length of an original term of probation. There is no way to reasonably interpret “original” to mean original plus any extensions. The statute plainly distinguishes limitations on original terms of probation from possible subsequent extensions. Extensions of probation are limited by requiring that they be “for cause” and requiring courts to specify the length of the extension. This interpretation does not render the statute unconstitutional for failing to provide sufficient notice of potential punishment. While “for cause” leaves the determination of maximum sentences to the court, no unlawful delegation of legislative power is involved. State v. Luu, 2009 WI App 91, 319 Wis. 2d 778, 769 N.W.2d 125, 08-2138.

973.09 Annotation Whether or not circuit courts possess inherent authority to reduce a period of probation that is comparable to the inherent authority courts possess to reduce a sentence, courts have no inherent authority to reduce probation based on a finding of successful rehabilitation. Even assuming that circuit courts possess this inherent authority, that authority must be circumscribed in the same way as the inherent authority of courts to modify sentences already imposed. A claim of rehabilitation sufficient to obviate public protection concerns is not grounds for sentence modification. State v. Dowdy, 2010 WI App 158, 330 Wis. 2d 444, 792 N.W.2d 230, 10-0772.

973.09 Annotation Sub. (3) (a) does not grant a circuit court authority to reduce the length of probation. Sub. (3) (a) grants a circuit court authority only to “extend probation for a stated period” or to “modify the terms and conditions” of probation. When read in context, it is clear that the authority to “modify the terms and conditions” of probation does not include the authority to reduce the length of probation. State v. Dowdy, 2012 WI 12, 338 Wis. 2d 565, 808 N.W.2d 691, 10-0772.

973.09 Annotation Probation is not a sentence; it is an alternative to sentence. Probation is a privilege, not a right. Unlike with a maximum sentence or a penalty enhancer, there is no statutory requirement that an accused be advised of potential probation terms or conditions. In this case, the statute itself provided the defendant with sufficient notice of the potential probationary term for acts of domestic abuse. The state did not need to set forth in the information and complaint that it was seeking two years of probation under sub. (2) (a) 1. b. That the state did indicate that it sought a finding of domestic abuse in the first two counts in the complaint did not create a duty to do so in a third. State v. Edwards, 2013 WI App 51, 347 Wis. 2d 526, 830 N.W.2d 109, 12-0758.

973.09 Annotation Because the defendant’s court-ordered three-year term of probation had not expired at the time the Department of Corrections commenced revocation proceedings, the department retained jurisdiction over the defendant despite its issuance of a discharge certificate. The defendant’s due process rights were not violated, and equitable estoppel was not available in the context of certiorari review. State ex rel. Greer v. Wiedenhoeft, 2014 WI 19, 353 Wis. 2d 307, 845 N.W.2d 373, 11-2188.

973.09 Annotation Probation is a statutory creation, and the power to reduce or terminate a term of probation is not necessary for courts to accomplish their constitutionally mandated functions. Therefore, Wisconsin courts do not have the inherent authority to reduce or terminate a period of probation. State v. Schwind, 2019 WI 48, 386 Wis. 2d 526, 926 N.W.2d 742, 17-0141.

973.09 Annotation Discussing searches under 2013 Wis. Act 79’s reasonable suspicion standard. State v. Anderson, 2019 WI 97, 389 Wis. 2d 106, 935 N.W.2d 285, 17-1104.

973.09 Annotation When a specific statute requires a court to impose a bifurcated sentence including a mandatory minimum term of confinement, the statute prohibits the court from staying the sentence and placing the person on probation. State v. Shirikian, 2023 WI App 13, 406 Wis. 2d 633, 987 N.W.2d 819, 21-0859.

973.09 Annotation Under sub. (1) (d), “imprisonment” is a term that includes both the confinement and supervision components of a sentence. State v. Shirikian, 2023 WI App 13, 406 Wis. 2d 633, 987 N.W.2d 819, 21-0859.

973.09 Annotation Wisconsin law empowers circuit courts to impose conditions of extended supervision and probation and to modify those conditions through a formal statutory process. However, actual administration of the sentence and conditions is entrusted to the Department of Corrections. In this case, the circuit court likely stepped over the line when the court imposed a condition that the defendant could not live with any women or unrelated children without the permission of the court, and the court intended to administer that condition through case-by-case oversight. State v. Williams-Holmes, 2023 WI 49, 408 Wis. 2d 1, 991 N.W.2d 373, 21-0809.

973.09 Annotation Sub. (2) applies to all sentences pronounced at the same time, whether grouped together because they are related or because of convenience. United States v. Stalbaum, 63 F.3d 537 (1995).

973.10 973.10 Control and supervision of probationers.

973.10(1) (1) Imposition of probation shall have the effect of placing the defendant in the custody of the department and shall subject the defendant to the control of the department under conditions set by the court and rules and regulations established by the department for the supervision of probationers, parolees and persons on extended supervision.

973.10(1m) (1m) 

973.10(1m)(a) (a) The department may order that a probationer perform community service work for a public agency or a nonprofit charitable organization. An order may apply only if agreed to by the probationer and the organization or agency. The department shall ensure that the probationer is provided a written statement of the terms of the community service order and shall monitor the probationer’s compliance with the community service order. Compliance with this subsection does not entitle a probationer to credit under s. 973.155.

973.10(1m)(b) (b) Any organization or agency acting in good faith to which a probationer is assigned under 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 probationer. The department has immunity from any civil liability for acts or omissions by or impacting on the probationer regarding the assignment under this subsection.

973.10(2) (2) If a probationer violates the conditions of probation, the department of corrections may initiate a proceeding before the division of hearings and appeals in the department of administration. Unless waived by the probationer, a hearing examiner for the division shall conduct an administrative hearing and enter an order either revoking or not revoking probation. Upon request of either party, the administrator of the division shall review the order. If the probationer waives the final administrative hearing, the secretary of corrections shall enter an order either revoking or not revoking probation. If probation is revoked, the department shall:

973.10(2)(a) (a) If the probationer has not already been sentenced, order the probationer brought before the court for sentence which shall then be imposed without further stay under s. 973.15; or

973.10(2)(b) (b) If the probationer has already been sentenced, order the probationer to prison, and the term of the sentence shall begin on the date the probationer enters the prison.

973.10(2g) (2g) Upon demand prior to a revocation hearing under sub. (2), the district attorney shall disclose to a defendant the existence of any audiovisual recording of an oral statement of a child under s. 908.08 which is within the possession, custody or control of the state and shall make reasonable arrangements for the defendant and defense counsel to view the statement. If, after compliance with this subsection, the state obtains possession, custody or control of such a statement, the district attorney shall promptly notify the defendant of that fact and make reasonable arrangements for the defendant and defense counsel to view the statement.

973.10(2m) (2m) In any administrative hearing under sub. (2), the hearing examiner may order that a deposition be taken by audiovisual means and allow the use of a recorded deposition under s. 967.04 (7) to (10).

973.10(2s) (2s) If a probationer signs a statement admitting a violation of a condition or rule of probation, the department may, as a sanction for the violation, confine the probationer for up to 90 days in a regional detention facility or, with the approval of the sheriff, in a county jail. If the department confines the probationer in a county jail under this subsection, the department shall reimburse the county for its actual costs in confining the probationer from the appropriations under s. 20.410 (1) (ab) and (b).

973.10(3) (3) A copy of the order of the department of corrections in the case of a waiver or the division of hearings and appeals in the department of administration in the case of a final administrative hearing is sufficient authority for the officer executing it to take the probationer to court or to prison. The officer shall execute the order as a warrant for arrest but any officer may, without order or warrant, take the probationer into custody whenever necessary in order to prevent escape or enforce discipline or for violation of probation.

973.10(4) (4) The division of hearings and appeals in the department of administration shall make either an electronic or stenographic record of all testimony at each probation revocation hearing. The division shall prepare a written transcript of the testimony only at the request of a judge who has granted a petition for judicial review of the revocation decision. Each hearing notice shall include notice of the provisions of this subsection and a statement that any person who wants a written transcript may record the hearing at his or her own expense.

973.10 History History: 1971 c. 298; 1975 c. 41, 157, 199; 1977 c. 347; 1981 c. 50; 1983 a. 27, 197; 1985 a. 262 s. 8; 1989 a. 31, 107; 1995 a. 96, 387; 1997 a. 283; 2005 a. 42; 2013 a. 196.

973.10 Cross-reference Cross-reference: See also ss. DOC 330.02 and 331.01, Wis. adm. code.

973.10 Note Judicial Council Note, 1981: Sub. (2) (a) has been amended to clarify that, upon revocation of probation of an offender from whom sentence was originally withheld, the court must impose sentence in accordance with s. 973.15. That section now permits the court to order that any sentence be concurrent with or consecutive to any sentence imposed at the same time or previously. [Bill 341-A]

973.10 Annotation Before probation can be revoked, the Department of Health and Social Services must hold a hearing and make a record so that on judicial review it can be determined whether the department acted arbitrarily or capriciously. The hearing need not be formal. State ex rel. Johnson v. Cady, 50 Wis. 2d 540, 185 N.W.2d 306 (1971).

973.10 Annotation Revocation of probation is an integral part of the sentencing process; a defendant is entitled to assistance of counsel at parole or probation revocation hearings without regard to whether the hearing occurs in a withheld sentence or a postsentence situation. Oestrich v. State, 55 Wis. 2d 222, 198 N.W.2d 664 (1972).

973.10 Annotation Since probation revocation hearings are independent from the original conviction and sentencing, a judge disqualified in the original case may preside at the hearing in the absence of a challenge. State v. Fuller, 57 Wis. 2d 408, 204 N.W.2d 452 (1973).

973.10 Annotation Witnesses at a probation revocation hearing need not be sworn. State v. Gerard, 57 Wis. 2d 611, 205 N.W.2d 374 (1973).

973.10 Annotation Adopting and applying American Bar Association standards relating to probation. State ex rel. Plotkin v. DHSS, 63 Wis. 2d 535, 217 N.W.2d 641 (1974).

973.10 Annotation A certiorari proceeding in the committing court to review a revocation of parole or probation is not a criminal proceeding. State ex rel. Hanson v. DHSS, 64 Wis. 2d 367, 219 N.W.2d 267 (1974).

973.10 Annotation The right to counsel at a preliminary revocation hearing is within the discretion of the Department of Health and Social Services based on the need to meet the applicable due process requirements. State ex rel. Hawkins v. Gagnon, 64 Wis. 2d 394, 219 N.W.2d 252 (1974).

973.10 Annotation A defendant whose probation was transferred to Tennessee and who was charged with a violation of probation there was denied due process when the revocation hearing was held in Wisconsin and the Department of Health and Social Services refused to allow deposition of witnesses in Tennessee. When the witnesses’ testimony is of a direct and unequivocally exculpatory nature rather than cumulative, character, or background testimony that might have been adequately presented by deposition or affidavit, an opportunity to present live testimony with cross-examination of the witnesses is required. State ex rel. Harris v. Schmidt, 69 Wis. 2d 668, 230 N.W.2d 890 (1975).

973.10 Annotation Department of Health and Social Services probation files and records are public records and admissible at a probation revocation hearing. State ex rel. Prellwitz v. Schmidt, 73 Wis. 2d 35, 242 N.W.2d 227 (1976).

973.10 Annotation Time spent in jail awaiting revocation is deducted from a maximum sentence despite the option available to the defendant to spend the time in prison. State ex rel. Solie v. Schmidt, 73 Wis. 2d 76, 242 N.W.2d 244 (1976).

973.10 Annotation When the Department of Health and Social Services overrules its hearing examiner and revokes probation, it must provide a statement of the evidence relied upon and the reasons for revoking probation. Ramaker v. State, 73 Wis. 2d 563, 243 N.W.2d 534 (1976).

973.10 Annotation A warrantless search by a probation officer was constitutionally permissible when probable cause existed for the officer’s attempt to determine whether the probationer had violated probation. State v. Tarrell, 74 Wis. 2d 647, 247 N.W.2d 696 (1976).

973.10 Annotation The trial court had no authority to extend the probation of a defendant brought before the court under sub. (2). State v. Balgie, 76 Wis. 2d 206, 251 N.W.2d 36 (1977).

973.10 Annotation The court exceeded its jurisdiction by releasing the defendant on bail pending revocation proceedings. State ex rel. DHSS v. Circuit Court, 84 Wis. 2d 707, 267 N.W.2d 373 (1978).

973.10 Annotation Equal protection does not require symmetry in probation and parole systems. State v. Aderhold, 91 Wis. 2d 306, 284 N.W.2d 108 (Ct. App. 1979).

973.10 Annotation A probationer’s due process right to prompt revocation proceedings was not triggered when the probationer was detained as a result of unrelated criminal proceedings. State ex rel. Alvarez v. Lotter, 91 Wis. 2d 329, 283 N.W.2d 408 (Ct. App. 1979).

973.10 Annotation Probation can be revoked for a violation of a criminal statute absent a written probation agreement. State ex rel. Rodriguez v. DHSS, 133 Wis. 2d 47, 393 N.W.2d 105 (Ct. App. 1986).

973.10 Annotation A probation officer may conduct a warrantless search. That the underlying conviction is subsequently overturned does not retroactively invalidate a warrantless search by the probation officer. State v. Angiolo, 207 Wis. 2d 561, 558 N.W.2d 701 (Ct. App. 1996), 96-0099.

973.10 Annotation A probationer has a right to a competency determination when during a revocation proceeding the administrative law judge has reason to doubt the probationer’s competence. The determination shall be made by the circuit court in the county of sentencing, which shall adhere to ss. 971.13 and 971.14 to the extent practicable. State ex rel. Vanderbeke v. Endicott, 210 Wis. 2d 502, 563 N.W.2d 883 (1997), 95-0907.

973.10 Annotation Because an administrative decision may be reviewed upon a timely petition for certiorari, an adequate remedy exists at law to correct defects and relief under habeas corpus will not be granted. State ex rel. Reddin v. Galster, 215 Wis. 2d 179, 572 N.W.2d 505 (Ct. App. 1997), 97-0111.

973.10 Annotation A certiorari proceeding to review a probation revocation must be heard in the circuit court of conviction, but it need not be by the same branch. Drow v. Schwarz, 225 Wis. 2d 362, 592 N.W.2d 623 (1999), 97-1867.

973.10 Annotation Sub (2) is constitutional. Probation and probation revocation are within the powers shared by the branches of government. Legislative delegation of revocation to the executive branch does not unduly burden or substantially interfere with the judiciary’s constitutional function to impose criminal penalties. State v. Horn, 226 Wis. 2d 637, 594 N.W.2d 772 (1999), 97-2751.

973.10 Annotation Sub. (2) prohibits judicial revocation of probation by the trial courts. State v. Burchfield, 230 Wis. 2d 348, 602 N.W.2d 154 (Ct. App. 1999), 99-0716.

973.10 Annotation If a probationer refuses to incriminate himself or herself as required by a condition of supervision, the probationer cannot be automatically revoked on that ground. If the probationer refuses despite a grant of immunity, the probationer’s probation may be revoked on that basis. Any incriminating statements the probationer provides under the grant of immunity may be used as justification for revocation, but not used in any criminal proceedings. If a probationer is compelled by way of probation rules to incriminate himself or herself, the resulting statements may not be used in any criminal proceeding. State v. Peebles, 2010 WI App 156, 330 Wis. 2d 243, 792 N.W.2d 212, 09-3111.

973.10 Annotation When both the circuit court and the defendant’s probation agent ordered the defendant to attend sex offender counseling, his supervision rules required that he be truthful, that he submit to lie detector tests, and that he fully cooperate with and successfully complete sex offender counseling, the probation supervision rules documents explicitly informed the defendant he could be revoked for failure to comply with any conditions, and the defendant gave his statements, at least in part, because he was required to take lie detector tests, his statements were compelled for purposes of the 5th amendment. Because the statements were then used against him at sentencing to increase his prison sentence, they were incriminating and should have been excluded. State v. Peebles, 2010 WI App 156, 330 Wis. 2d 243, 792 N.W.2d 212, 09-3111.

973.10 Annotation Wisconsin law empowers circuit courts to impose conditions of extended supervision and probation and to modify those conditions through a formal statutory process. However, actual administration of the sentence and conditions is entrusted to the Department of Corrections. In this case, the circuit court likely stepped over the line when the court imposed a condition that the defendant could not live with any women or unrelated children without the permission of the court, and the court intended to administer that condition through case-by-case oversight. State v. Williams-Holmes, 2023 WI 49, 408 Wis. 2d 1, 991 N.W.2d 373, 21-0809.

973.10 Annotation When a probationer or parolee is charged with a crime and may have otherwise violated conditions of release, revocation hearings based on the non-criminal violations should be held without delay. 65 Atty. Gen. 20.

973.10 Annotation A state may require probation officers, among other “peace officers,” to be U.S. citizens. Cabell v. Chavez-Salido, 454 U.S. 432, 102 S. Ct. 735, 70 L. Ed. 2d 677 (1982).

973.10 Annotation Revocation of probation without a hearing is a denial of due process. Hahn v. Burke, 430 F.2d 100 (1970).

973.10 Annotation A probation revocation hearing may be administrative. Retained or appointed counsel must be allowed to participate. Gunsolus v. Gagnon, 454 F.2d 416 (1971).

973.10 Annotation Criminal Law—Probation Revocation—Right to a Hearing—Right to Counsel. 1971 WLR 648.

973.10 Annotation Constitutional Law—Due Process—Criminal Law—Probation and Parole Revocation in Wisconsin. Fisher. 1977 WLR 503.

973.11 973.11 Placements with volunteers in probation program.

973.11(1) (1) Placements. If a person is convicted of or pleads guilty or no contest to one or more misdemeanors for which either mandatory periods of imprisonment are not required or the person is sentenced under s. 346.65 (2) (bm) or (cm), (2j) (bm) or (cm), or (3r), if the chief judge of the judicial administrative district has approved a volunteers in probation program established in the applicable county, and if the court decides that volunteer supervision under the program will likely benefit the person and the community and subject to the limitations under sub. (3), the court may withhold sentence or judgment of conviction and order that the person be placed with that volunteers in probation program. A person’s participation in the program may not be used to conceal, withhold, or mask information regarding the judgment of conviction if the conviction is required to be included in a record kept under s. 343.23 (2) (a). Except as provided in sub. (3), the order shall provide any conditions that the court determines are reasonable and appropriate and may include, but need not be limited to, one or more of the following:

973.11(1)(a) (a) A directive to a volunteer to provide one or more of the following functions for the defendant:

973.11(1)(a)1. 1. Role model.

973.11(1)(a)2. 2. Informal counseling.

973.11(1)(a)3. 3. General monitoring.

973.11(1)(a)4. 4. Monitoring of conditions set by the court.

973.11(1)(b) (b) Any requirement that the court may impose under s. 973.09 (1g), (4), and (7m).

973.11(2) (2) Approval of programs. In each judicial administrative district under s. 757.60, the chief judge of the district may approve volunteers in probation programs established in the district for placements under this section.

973.11(3) (3) Status. A defendant who is placed with a volunteers in probation program under sub. (1) is subject to the conditions set by the court. The defendant is not on probation under ss. 973.09 and 973.10 and the department is not responsible for supervising him or her. A court may place a defendant under sub. (1) prior to conviction only if a deferred prosecution agreement is reached under s. 971.40. In that case, the person is subject to the conditions set by the court under this section and the conditions provided in the agreement.

973.11(4) (4) Term. The court shall set the length of the order, which may not exceed 2 years unless extended pursuant to a hearing under sub. (5). When the defendant has satisfied the conditions of the order, the court shall discharge the defendant and dismiss the charges against the defendant if a judgment of conviction was not previously entered.

973.11(5) (5) Failure to comply with order.

973.11(5)(a) (a) If the defendant is alleged to have violated the conditions of an order under sub. (1), the court may hold a hearing regarding the allegations. The court shall notify the defendant at least 7 days prior to holding any such hearing. At the hearing, the defendant has the right to each of the following:

973.11(5)(a)1. 1. Counsel.

973.11(5)(a)2. 2. Remain silent.

973.11(5)(a)3. 3. Present and cross-examine witnesses.

973.11(5)(a)4. 4. Have the hearing recorded by a court reporter.

973.11(5)(b) (b) The court may extend the period of supervision for up to 45 days to accommodate a hearing under this subsection.

973.11(5)(c) (c) Failure of the defendant to appear at a hearing under this subsection tolls the running of the period of supervision.

973.11(5)(d) (d) If the court finds that the violation occurred, it may impose a sentence, revise the conditions of the order or allow the order to continue.

973.11(6) (6) Other modifications to order. At any time prior to the expiration of the order the court may shorten the length of the order or modify the conditions of the order. The court shall hold a hearing regarding a determination under this subsection if the defendant or district attorney requests a hearing.