A rule that inmates must always be released from physical custody before any revocation is commenced would elevate form over substance. When inmates violate probation terms immediately and simultaneously with their scheduled mandatory release dates, the department of corrections may maintain continuous custody, even though that person's status changes from a prisoner serving a sentence to a parolee detained on a parole hold. Riesch v. Schwarz, 2005 WI 11
, 278 Wis. 2d 24
, 692 N.W.2d 219
304.06 Annotation2011 Wis. Act 38
repealed or modified ss. 302.113 (2) (b) and 304.06 (1) (bg) 1., 2009 stats., which afforded certain prisoners convicted of Class F to Class I felonies an opportunity to earn early release from confinement, resulting in the petitioner being required to serve the full term of the initial confinement portion of his sentence. Because the law in effect when he was convicted afforded him the opportunity to be released earlier and the 2011 Act 38
modifications resulted in a significant risk of prolonging the defendant's incarceration, the portions of Act 38 that eliminated the defendant's eligibility for early release under the 2009 law violated the ex post facto clauses when applied to the defendant's offenses. Singh v. Kemper, 2014 WI App 43
, 353 Wis. 2d 520
, 846 N.W.2d 820
When required by the right to effectively present a defense, the state must issue, and for an indigent pay the costs of, compulsory process to obtain the attendance of witnesses on behalf of probationers and parolees at revocation proceedings. 63 Atty. Gen. 176.
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.
A convict has no constitutional right to be paroled. Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1
A state administrative rule imposing an absolute bar on international travel by parolees is constitutional. Williams v. State, 336 F.3d 576
Probation and parole revocation in Wisconsin. 1977 WLR 503.
Ordering parolees and persons on extended supervision to perform community service work. 304.062(1)(1)
The department may order that a parolee or a person on extended supervision perform community service work for a public agency or a nonprofit charitable organization. An order may apply only if agreed to by the parolee or the person on extended supervision and the organization or agency. The department shall ensure that the parolee or the person on extended supervision is provided a written statement of the terms of the community service order and shall monitor the compliance of the parolee or person on extended supervision with the community service order.
Any organization or agency acting in good faith to which a parolee or person on extended supervision is assigned under 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 parolee or person on extended supervision. The department has immunity from any civil liability for acts or omissions by or impacting on the parolee or person on extended supervision regarding the assignment under this section.
History: 1995 a. 96
; 1997 a. 283
Notification prior to release on extended supervision or parole. 304.063(1)(a)
“Member of the family" means spouse, child, sibling, parent or legal guardian.
“Victim" means a person against whom a crime has been committed.
Before a prisoner is released on parole under s. 302.11
or on extended supervision under s. 302.113
, if applicable, for a violation of s. 940.01
, 940.225 (1)
, 948.02 (1)
, or 948.085
, the department shall make a reasonable attempt to notify all of the following persons, if they can be found, in accordance with sub. (3)
and after receiving a completed card under sub. (4)
The victim of the crime committed by the prisoner or, if the victim died as a result of the crime, an adult member of the victim's family or, if the victim is younger than 18 years old, the victim's parent or legal guardian.
Any witness who testified against the prisoner in any court proceeding involving the offense.
The department shall make a reasonable attempt to send the notice, postmarked at least 7 days before a prisoner is released on parole or extended supervision, to the last-known address of the persons under sub. (2)
The department shall design and prepare cards for any person specified in sub. (2)
to send to the department. The cards shall have space for any such person to provide his or her name and address, the name of the applicable prisoner and any other information the department determines is necessary. The department shall provide the cards, without charge, to district attorneys. District attorneys shall provide the cards, without charge, to persons specified in sub. (2)
. These persons may send completed cards to the department. All department records or portions of records that relate to mailing addresses of these persons are not subject to inspection or copying under s. 19.35 (1)
Offender release information.
The department shall obtain computer software and use the software to provide local law enforcement agencies with information regarding offenders who have been released to or placed in the agencies' jurisdictions.
History: 1993 a. 98
The parole commission may at any time grant a parole to any prisoner in any penal institution of this state, or the department may at any time suspend the supervision of any person who is on probation or parole to the department, if the prisoner or person on probation or parole is eligible for induction into the U.S. armed forces. The suspension of parole or probation shall be for the duration of his or her service in the armed forces; and the parole or probation shall again become effective upon his or her discharge from the armed forces in accordance with regulations prescribed by the department. If he or she receives an honorable discharge from the armed forces, the governor may discharge him or her and the discharge has the effect of a pardon. Upon the suspension of parole or probation by the department, the department shall issue an order setting forth the conditions under which the parole or probation is suspended, including instructions as to where and when and to whom the person on parole shall report upon discharge from the armed forces.
Period of probation, extended supervision or parole tolled. 304.072(1)(1)
If the department of corrections in the case of a parolee, probationer or person on extended supervision who is reinstated or waives a hearing or the division of hearings and appeals in the department of administration in the case of a hearing determines that a parolee, probationer or person on extended supervision has violated the terms of his or her supervision, the department or division may toll all or any part of the period of time between the date of the violation and the date an order of revocation or reinstatement is entered, subject to credit according to the terms of s. 973.155
for any time the parolee, probationer or person on extended supervision spent confined in connection with the violation.
If a parolee, probationer or person on extended supervision is alleged to have violated the terms of his or her supervision but the department or division determines that the alleged violation was not proven, the period between the alleged violation and the determination shall be treated as service of the probationary, extended supervision or parole period.
Except as provided in s. 973.09 (3) (b)
, the department preserves jurisdiction over a probationer, parolee or person on extended supervision if it commences an investigation, issues a violation report or issues an apprehension request concerning an alleged violation prior to the expiration of the probationer's, parolee's or person's term of supervision.
The sentence of a revoked parolee or person on extended supervision resumes running on the day he or she is received at a correctional institution subject to sentence credit for the period of custody in a jail, correctional institution or any other detention facility pending revocation according to the terms of s. 973.155
The sentence of a revoked probationer shall be credited with the period of custody in a jail, correctional institution or any other detention facility pending revocation and commencement of sentence according to the terms of s. 973.155
See also s. DOC 331.01
, Wis. adm. code.
The court could revoke a probation after the original probationary period had expired but the defendant had committed several crimes during the period. Williams v. State, 50 Wis. 2d 709
, 184 N.W.2d 844
Before the tolling statute applies, the department must make a final determination that a violation occurred. Locklear v. State, 87 Wis. 2d 392
, 274 N.W.2d 898
(Ct. App. 1978).
When revocation proceedings were initiated prior to expiration of the parole period, parole was properly revoked after the period expired. State ex rel. Avery v. Percy, 99 Wis. 2d 459
, 299 N.W.2d 886
(Ct. App. 1980).
The department may not grant jail credit where it is not provided for by statute. 71 Atty. Gen. 102
The preceding annotations concern s. 57.072, 1975 stats., [now s. 304.072] which was repealed and recreated by ch. 353, laws of 1977 and again by Act 528, laws of 1983
Sub. (3) applies to all parole violations that occur before the offender's date of discharge from his or her entire sentence. DOC had jurisdiction to revoke a 2nd period of parole for a violation that the defendant committed during his first, and later revoked, period of parole when the violation was not discovered until the 2nd parole period. Department of Corrections v. Schwarz, 2005 WI 34
, 279 Wis. 2d 223
, 693 N.W.2d 703
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
A term of supervision under sub. (3) includes the nonconfinement and confinement time arising from the same sentencing decision. With regard to identifying a term of supervision, probation, incarceration, and extended supervision are each a component of the sentence. A person who initially serves a term of probation that is ultimately revoked, and following revocation serves a bifurcated prison term, can be revoked from that prison term's extended supervision component on the basis of a rules violation that occurred during the initial term of probation. McElvaney v. Schwarz, 2008 WI App 102
, 313 Wis. 2d 125
, 756 N.W.2d 441
The “sentence" to which sub. (4) refers is the sentence that was issued by the circuit court subsequent to conviction. Sub. (4) looks back at a sentence earlier commenced. In this case when the defendant's parole was revoked, the indeterminate sentence for the defendant's felony conviction caused reincarceration. The reincarceration order did not establish reincarceration as a new sentence. Rather, it was a continuation of the sentence meted out by the circuit court judge. Therefore, if the defendant had not received all the sentence credit that was available to apply to the felony sentence when that sentence was imposed, he could have received it when his parole was revoked. State v. Obriecht, 2015 WI 66
, 363 Wis. 2d 816
, 867 N.W.2d 387
Reimbursement fee for persons on probation, parole, and extended supervision. 304.074(2)(2)
The department shall charge a reasonable fee as determined by the department to probationers, parolees, and persons on extended supervision to partially reimburse the department for the costs of providing supervision and services and, as provided under s. 302.33 (2) (a) 3.
, to reimburse counties and tribal governing bodies. Subject to sub. (3m)
, the department shall collect moneys for the fees charged under this subsection and credit those moneys to the appropriation account under s. 20.410 (1) (gf)
The department may decide to waive for a period a fee under sub. (2)
for reasons established under department policy, including if the person is unemployed, has a health issue or is disabled, or is participating in education or treatment-related programming.
The department may not collect a fee charged under this section until all restitution payments due pursuant to any order under s. 973.20
from the probationer, parolee, or person on extended supervision have been paid.
If a probationer, parolee or person on extended supervision who owes unpaid fees to the department under sub. (2)
is discharged from probation or from his or her sentence before the department collects the unpaid fees, the department shall, at the time of discharge, issue a notice to the probationer, parolee or person on extended supervision that states that he or she owes unpaid fees under sub. (2)
and that he or she is responsible for the payment of the unpaid fees. The notice under this paragraph shall be issued with the certificate of discharge required under s. 304.078
or 973.09 (5)
The department may request the attorney general to bring a civil action to recover unpaid fees owed to the department under sub. (2)
by a person who has been discharged from probation or from his or her sentence and who, at the time of discharge, owed the department unpaid fees under sub. (2)
. Before requesting the attorney general to bring a civil action under this paragraph, the department shall deduct any fees owed to the department that were inaccurately assessed against the person.
The department shall promulgate rules providing the procedure and timing for collecting fees charged under sub. (2)
304.074 AnnotationArticle I, section 9m
, of the Wisconsin Constitution provides for restitution only insofar as the legislature confers such rights through statute. The legislature makes restitution available to crime victims under s. 973.20 and other statutes, but crime victims are not guaranteed restitution in every instance. Section 973.20 (12) (b) makes clear that restitution payments take priority over specific statutory fees, surcharges, fines, and costs, but the priority scheme does not include supervision fees under this section. OAG 2-15
Restoration of civil rights of convicted persons. 304.078(1)(a)
“Imprisonment" includes parole and extended supervision.
Except as provided in sub. (3)
, every person who is convicted of a crime obtains a restoration of his or her civil rights by serving out his or her term of imprisonment or otherwise satisfying his or her sentence. The certificate of the department or other responsible supervising agency that a convicted person has served his or her sentence or otherwise satisfied the judgment against him or her is evidence of that fact and that the person is restored to his or her civil rights. The department or other agency shall list in the person's certificate rights which have been restored and which have not been restored. Persons who served out their terms of imprisonment or otherwise satisfied their sentences prior to August 14, 1947, are likewise restored to their civil rights from and after September 25, 1959.
If a person is disqualified from voting under s. 6.03 (1) (b)
, his or her right to vote is restored when he or she completes the term of imprisonment or probation for the crime that led to the disqualification. The department or, if the person is sentenced to a county jail or house of correction, the jailer shall inform the person in writing at the time his or her right to vote is restored under this subsection.
History: 1987 a. 226
; 1989 a. 31
; Stats. 1989 s. 304.078; 2003 a. 121
A person convicted of a crime whose sentence has been satisfied may vote. 61 Atty. Gen. 260.
A convicted felon whose civil rights have been restored pursuant to s. 57.078 [now s. 304.078] is barred from the office of notary public unless he or she has been pardoned. 63 Atty. Gen. 74.
The operation of this section on a prior conviction is irrelevant to a conviction for which a prior conviction is a predicate. Roehl v. U.S. 977 F.2d 375
Applications for pardon; regulations.
All applications for pardon of any convict serving sentence of one year or more, except for pardons to be granted within 10 days next before the time when the convict would be otherwise entitled to discharge pursuant to law, shall be made and conducted in the manner hereinafter prescribed, and according to such additional regulations as may from time to time be prescribed by the governor.
History: 1989 a. 31
; Stats. 1989 s. 304.08.
Executive clemency in Wisconsin. Bauer, 1973 WLR 1154.
Notice of pardon application. 304.09(1)(a)
“Member of the family" means spouse, domestic partner under ch. 770
, child, sibling, parent or legal guardian.
“Victim" means a person against whom a crime has been committed.
The notice of the pardon application shall state the name of the convict, the crime of which he or she was convicted, the date and term of sentence and the date if known, when the application is to be heard by the governor. The notice shall be served on the following persons, if they can be found:
The judge who participated in the trial of the convict.
The district attorney who participated in the trial of the convict.
The victim or, if the victim is dead, an adult member of the victim's family.
The notice shall inform the persons under sub. (2)
of the manner in which they may provide written statements or participate in any applicable hearing. The applicant shall serve notice on the persons under sub. (2) (a)
at least 3 weeks before the hearing of the application. The governor shall make a reasonable attempt to serve notice on the person under sub. (2) (c)
at least 3 weeks before the hearing of the application. The notice shall be published at least once each week for 2 successive weeks before the hearing in a newspaper of general circulation in the county where the offense was committed. If there is no such newspaper, the notice shall be posted in a conspicuous place on the door of the courthouse of the county for 3 weeks before the hearing and published once each week for 2 consecutive weeks before the hearing in a newspaper published in an adjoining county. Publication as required in this subsection shall be completed by a date designated by the governor. The date shall be a reasonable time prior to the hearing date.
History: 1983 a. 364
; 1989 a. 31
; Stats. 1989 s. 304.09; 1997 a. 181
; 2009 a. 28
Pardon application papers; victim's statement. 304.10(1)(1)
An application for pardon shall be accompanied by the following papers:
Notice of application and acknowledgments or affidavits showing due service and affidavits showing due publication and posting whenever required;
A certified copy of the court record entries, the indictment or information, and any additional papers on file in the court, if obtainable, as the governor requires;
A full sworn statement by the applicant of all facts and reasons upon which the application is based;
Written statements by the judge and the district attorney who tried the case, if obtainable, indicating their views regarding the application and stating any circumstances within their knowledge in aggravation or extenuation of the applicant's guilt;
A certificate of the keeper of the prison where the applicant has been confined showing whether the applicant has conducted himself or herself in a peaceful and obedient manner.
When a victim or member of the victim's family receives notice under s. 304.09 (3)
, he or she may provide the governor with written statements indicating his or her views regarding the application and stating any circumstances within his or her knowledge in aggravation or extenuation of the applicant's guilt. Upon receipt of any such statement, the governor shall place the statement with the other pardon application papers.
Any statement or paper containing a reference to the address of a victim or a member of the victim's family which is contained in a statement or other paper accompanying a pardon application is not subject to s. 19.35
and shall be closed to the public. The governor, using the procedure under s. 19.36 (6)
, shall delete any reference to the address in any statement or paper made public.
History: 1983 a. 364
; 1989 a. 31
; Stats. 1989 s. 304.10; 1991 a. 269
; 1995 a. 224