Chapter 778

778.25(1)(a)3. 3. Under s. 167.32 or under a local ordinance strictly conforming to s. 167.32 brought against an adult in circuit court.

778.25(1)(a)4. 4. Under s. 254.92 or under a local ordinance strictly conforming to s. 254.92 brought against an adult in circuit court or against a minor in the court assigned to exercise jurisdiction under chs. 48 and 938.

778.25(1)(a)5. 5. Under administrative rules promulgated by the board of regents under s. 36.11 (1) (c) brought against an adult in circuit court or against a minor in the court assigned to exercise jurisdiction under chs. 48 and 938.

778.25(1)(a)6. 6. Under an administrative rule promulgated by the department of administration under s. 16.846 brought against an adult in circuit court or against a minor in the court assigned to exercise jurisdiction under chs. 48 and 938.

778.25(1)(a)8. 8. Under s. 173.41 (15) (b).

778.25(1)(b) (b) The citation form provided by this section may serve as the initial pleading for the action and is adequate process to give a court jurisdiction over the person if the citation is filed with the court.

778.25(2) (2) A citation under this section shall be signed by the issuing agent or officer or by an officer who has authority to make arrests for the violation and shall contain substantially the following information:

778.25(2)(a) (a) The name, address and date of birth of the defendant and the name and address of the defendant’s parents or guardian, if a minor.

778.25(2)(b) (b) The name and department of the issuing agent or officer.

778.25(2)(c) (c) The violation alleged, the time and place of occurrence, a statement that the defendant committed the violation, the statute, rule or ordinance violated and a designation of the violation in language which can be readily understood.

778.25(2)(d) (d) A date, time and place for the court appearance, and a notice to appear.

778.25(2)(f) (f) Provisions for deposit in lieu of a court appearance.

778.25(2)(g) (g) Notice that if the defendant makes a deposit and fails to appear in court at the time fixed in the citation, the failure to appear will be considered tender of a plea of no contest and submission to a forfeiture, plus costs, fees, and surcharges imposed under ch. 814, not to exceed the amount of the deposit. The notice shall also state that the court may decide to summon the defendant or, if the defendant is an adult, issue an arrest warrant for the defendant rather than accept the deposit and plea.

778.25(2)(i) (i) Notice that the defendant may by mail prior to the court appearance enter a plea of not guilty and request another date for a court appearance.

778.25(2)(j) (j) Notice that if the defendant does not make a deposit and fails to appear in court at the time fixed in the citation, the court may consider the nonappearance to be a plea of no contest and enter judgment accordingly or the court may issue a summons or an arrest warrant.

778.25(2)(k) (k) Any other pertinent information.

778.25(3) (3) If a person is issued a citation under this section, the person may deposit the amount of money that the issuing agent or officer directs by mailing or delivering the deposit and a copy of the citation to the clerk of court of the county where the violation occurred or the office or headquarters of the agent or officer who issued the citation prior to the court appearance date. The basic amount of the deposit shall be determined under a deposit schedule established by the judicial conference. The judicial conference shall annually review and revise the schedule. In addition to the basic amount determined by the schedule, the deposit shall include costs, fees, and surcharges imposed under ch. 814.

778.25(5) (5) A person receiving a deposit shall prepare a receipt in triplicate showing the purpose for which the deposit is made, stating that the defendant may inquire at the office of the clerk of court regarding the disposition of the deposit, and notifying the defendant that if he or she fails to appear in court at the time fixed in the citation he or she will be deemed to have tendered a plea of no contest and submitted to a forfeiture, plus costs, fees, and surcharges imposed under ch. 814, not to exceed the amount of the deposit which the court may accept. The original of the receipt shall be delivered to the defendant in person or by mail. If the defendant pays by check, the check is the receipt.

778.25(7) (7) If a citation is issued to a minor the issuing agency shall, within 7 days, mail or deliver a copy of the citation to the child’s parent or guardian.

778.25(8) (8) If a defendant issued a citation under this section fails to appear in court at the time fixed in the citation or by subsequent postponement, the following procedure applies:

778.25(8)(a) (a)

778.25(8)(a)1. 1. If the defendant has not made a deposit, the court may consider the nonappearance to be a plea of no contest and enter judgment accordingly or the court may issue a summons or an arrest warrant, except if the defendant is a minor the court shall proceed under s. 938.28. Chapter 938 governs taking and holding a minor in custody.

778.25(8)(a)2. 2. If the court considers the nonappearance to be a plea of no contest and enters judgment accordingly, the court shall promptly mail a copy or notice of the judgment to the defendant. The judgment shall allow the defendant not less than 20 working days from the date the judgment copy or notice is mailed to pay the forfeiture, plus costs, fees, and surcharges imposed under ch. 814.

778.25(8)(b) (b) If the defendant has made a deposit, the citation may serve as the initial pleading and the defendant shall be considered to have tendered a plea of no contest and submitted to a forfeiture, plus costs, fees, and surcharges imposed under ch. 814, not exceeding the amount of the deposit. The court may either accept the plea of no contest and enter judgment accordingly, or reject the plea and issue a summons or arrest warrant, except that if the defendant is a minor the court shall proceed under s. 938.28. Chapter 938 governs taking and holding a minor in custody.

778.25(8)(c) (c) If the court accepts a plea of no contest, the defendant may move within 90 days after the date set for appearance to withdraw the plea of no contest, open the judgment, and enter a plea of not guilty if the defendant shows to the satisfaction of the court that failure to appear was due to mistake, inadvertence, surprise, or excusable neglect. If a party is relieved from the plea of no contest, the court or judge may order a written complaint or petition to be filed. If on reopening the defendant is found not guilty, the court shall delete the record of conviction and shall order the defendant’s deposit returned.

778.25(9) (9) If a citation or summons is issued to a defendant under this section and he or she is unable to appear in court on the day specified, the defendant may enter a plea of not guilty by mailing a letter stating that inability to the court at the address indicated on the citation. The letter must show the defendant’s return address. The letter may include a request for trial during normal daytime business hours. Upon receipt of the letter, the court shall reply by notice to the defendant’s address setting forth a time and place for trial, and the time shall be during normal business hours if so requested. The date of the trial shall be at least 10 days after the date on which the court sent the notice. Nothing in this subsection forbids the setting of the trial at any time convenient to all parties concerned.

778.25(10) (10) An officer collecting moneys for a forfeiture, plus costs, fees, and surcharges imposed under ch. 814, under this section shall pay the same to the appropriate municipal or county treasurer within 20 days after their receipt by the officer, except that all jail surcharges imposed under ch. 814 shall be paid to the county treasurer. If the officer fails to make timely payment, the municipal or county treasurer may collect the payment from the officer by an action in the treasurer’s name of office and upon the official bond of the officer, with interest at the rate of 12 percent per year from the time when it should have been paid.

778.25 History History: 1979 c. 331, 359; 1981 c. 79 s. 18; 1981 c. 317; 1983 a. 74 ss. 30, 32; 1983 a. 336; 1985 a. 254; 1987 a. 27, 336, 399; 1989 a. 31, 121, 179; 1991 a. 134, 194; 1995 a. 77, 174, 352, 448; 1997 a. 27, 288, 290; 1999 a. 9; 2001 a. 75; 2003 a. 139, 193; 2005 a. 116, 306; 2009 a. 90; 2017 a. 59.

778.25 Annotation Civil discovery procedures are available to persons subject to an action to recover a forfeiture commenced under this section because the legislature has not prescribed a different procedure for such forfeitures. State v. Bausch, 2014 WI App 12, 352 Wis. 2d 500, 842 N.W.2d 654, 13-0752.

778.26 778.26 Citation procedure; violation of land trespass laws.

778.26(1) (1) The citation procedures established by this section may be used only in an action to recover a forfeiture under s. 943.13. The citation form provided by this section may serve as the initial pleading for the action and is adequate process to give a court jurisdiction over the person if the citation is filed with the circuit court.

778.26(2) (2) A citation under this section shall be signed by an officer who has authority to make arrests for the violation and shall contain substantially the following information:

778.26(2)(a) (a) The name, address and date of birth of the defendant.

778.26(2)(b) (b) The name and department of the issuing officer.

778.26(2)(c) (c) The violation alleged, the time and place of occurrence, a statement that the defendant committed the violation, the statute violated and a designation of the violation in language which can be readily understood by a person making a reasonable effort to do so.

778.26(2)(d) (d) A date, time and place for the court appearance, and a notice to appear.

778.26(2)(e) (e) The maximum forfeiture, plus costs, fees, and surcharges imposed under ch. 814, for which the defendant is liable.

778.26(2)(f) (f) Provisions for deposit and stipulation in lieu of a court appearance.

778.26(2)(g) (g) Notice that, if the defendant makes a deposit and fails to appear in court at the time specified in the citation, the failure to appear will be considered tender of a plea of no contest and submission to a forfeiture, plus costs, fees, and surcharges imposed under ch. 814, not to exceed the amount of the deposit. The notice shall also state that the court, instead of accepting the deposit and plea, may decide to summon the defendant or may issue an arrest warrant for the defendant upon failure to respond to a summons.

778.26(2)(h) (h) Notice that, if the defendant makes a deposit and signs the stipulation, the stipulation will be treated as a plea of no contest and submission to a forfeiture, plus costs, fees, and surcharges imposed under ch. 814, not to exceed the amount of the deposit. The notice shall also state that the court, instead of accepting the deposit and stipulation, may decide to summon the defendant or issue an arrest warrant for the defendant upon failure to respond to a summons, and that the defendant may, at any time prior to or at the time of the court appearance date, move the court for relief from the effect of the stipulation.

778.26(2)(i) (i) Notice that the defendant may, by mail prior to the court appearance, enter a plea of not guilty and request another date for a court appearance.

778.26(2)(j) (j) Notice that if the defendant does not make a deposit and fails to appear in court at the time specified in the citation, the court may issue a summons or an arrest warrant.

778.26(3) (3) A defendant issued a citation under this section may deposit the amount of money that the issuing officer directs by mailing or delivering the deposit and a copy of the citation prior to the court appearance date to the clerk of the circuit court in the county where the violation occurred or to the sheriff’s office or police headquarters of the officer who issued the citation. The basic amount of the deposit shall be determined under a deposit schedule established by the judicial conference. The judicial conference shall annually review and revise the schedule. In addition to the basic amount determined by the schedule, the deposit shall include the costs, fees, and surcharges imposed under ch. 814.

778.26(4) (4) A defendant may make a stipulation of no contest by submitting a deposit and a stipulation in the manner provided by sub. (3) prior to the court appearance date. The signed stipulation is a plea of no contest and submission to a forfeiture, plus the costs, fees, and surcharges imposed under ch. 814, not to exceed the amount of the deposit.

778.26(5) (5) Except as provided by sub. (6), a person receiving a deposit shall prepare a receipt in triplicate showing the purpose for which the deposit is made, stating that the defendant may inquire at the office of the clerk of the circuit court regarding the disposition of the deposit, and notifying the defendant that if he or she fails to appear in court at the time specified in the citation he or she shall be considered to have tendered a plea of no contest and submitted to a forfeiture, plus costs, fees, and surcharges imposed under ch. 814, not to exceed the amount of the deposit and that the court may accept the plea. The original of the receipt shall be delivered to the defendant in person or by mail. If the defendant pays by check, the canceled check is the receipt.

778.26(6) (6) The person receiving a deposit and stipulation of no contest shall prepare a receipt in triplicate showing the purpose for which the deposit is made, stating that the defendant may inquire at the office of the clerk of the circuit court regarding the disposition of the deposit, and notifying the defendant that if the stipulation of no contest is accepted by the court the defendant will be considered to have submitted to a forfeiture, plus costs, fees, and surcharges imposed under ch. 814, not to exceed the amount of the deposit. Delivery of the receipt shall be made in the same manner as provided in sub. (5).

778.26(7) (7) If a defendant issued a citation under this section fails to appear in court at the time specified in the citation or by subsequent postponement, the following procedure applies:

778.26(7)(a) (a) If the defendant has not made a deposit, the court may issue a summons or an arrest warrant.

778.26(7)(b) (b) If the defendant has made a deposit, the citation may serve as the initial pleading and the defendant shall be considered to have tendered a plea of no contest and submitted to a forfeiture, plus costs, fees, and surcharges imposed under ch. 814, not to exceed the amount of the deposit. The court may either accept the plea of no contest and enter judgment accordingly, or reject the plea and issue a summons. If the defendant fails to appear in response to the summons, the court shall issue an arrest warrant. If the court accepts the plea of no contest, the defendant may, within 90 days after the date set for appearance, move to withdraw the plea of no contest, open the judgment, and enter a plea of not guilty if the defendant shows to the satisfaction of the court that failure to appear was due to mistake, inadvertence, surprise, or excusable neglect. If a defendant is relieved from the plea of no contest, the court may order a written complaint or petition to be filed. If on reopening the defendant is found not guilty, the court shall delete the record of conviction and shall order the defendant’s deposit returned.

778.26(7)(c) (c) If the defendant has made a deposit and stipulation of no contest, the citation serves as the initial pleading and the defendant shall be considered to have tendered a plea of no contest and submitted to a forfeiture, plus costs, fees, and surcharges imposed under ch. 814, not to exceed the amount of the deposit. The court may either accept the plea of no contest and enter judgment accordingly, or reject the plea and issue a summons or an arrest warrant. After signing a stipulation of no contest, the defendant may, at any time prior to or at the time of the court appearance date, move the court for relief from the effect of the stipulation. The court may act on the motion, with or without notice, for cause shown by affidavit and upon just terms, and relieve the defendant from the stipulation and the effects of the stipulation.

778.26(8) (8) If a citation or summons is issued to a defendant under this section and he or she is unable to appear in court on the day specified, the defendant may enter a plea of not guilty by mailing a letter stating that inability to the judge at the address indicated on the citation. The letter must show the defendant’s return address. The letter may include a request for trial during normal daytime business hours. Upon receipt of the letter, the judge shall reply by letter to the defendant’s address setting a time and place for trial. The time shall be during normal business hours if so requested. The date of the trial shall be at least 10 days from the date the letter was mailed by the judge. Nothing in this subsection forbids the setting of the trial at any time convenient to all parties concerned.

778.26(9) (9) An officer who collects a forfeiture, and costs, fees, and surcharges imposed under ch. 814, under this section shall pay the money to the county treasurer within 20 days after its receipt. If the officer fails to make timely payment, the county treasurer may collect the payment from the officer by an action in the treasurer’s name of office and upon the official bond of the officer, with interest at the rate of 12 percent per year from the time when it should have been paid.

778.26 History History: 1983 a. 418; 1987 a. 27; 1997 a. 27; 2003 a. 139.

778.30 778.30 Collection of forfeitures and related charges by assignment.

778.30(1) (1) In addition to the procedures under s. 23.795 or 345.47 or under this chapter for the collection of forfeitures, costs, assessments, surcharges, municipal court judgments, or restitution payments if a defendant fails to pay the forfeiture, costs, assessment, surcharge, municipal court judgment, or restitution payment within the period specified by the circuit court, the court may do any of the following:

778.30(1)(a) (a) Issue a judgment for the unpaid amount and direct the clerk of circuit court to file and docket a transcript of the judgment, without fee. If the court issues a judgment for the unpaid amount, the clerk of circuit 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 forfeiture, costs, assessment, surcharge or restitution payment. The judgment has the same force and effect as judgments docketed under s. 806.10.

778.30(1)(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 forfeiture, costs, or restitution fees or surcharges. In this paragraph, “employer” includes the state and its political subdivisions.

778.30(1)(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 forfeiture, costs, assessment, surcharge or restitution payment.

778.30(1)(d) (d) A child support withholding assignment or order listed under s. 767.75 (4) has priority over any assignment under this section.

778.30(2) (2) 

778.30(2)(a) (a)

778.30(2)(a)1. 1. Upon entry of the assignment under sub. (1) (b), unless the court finds that income withholding is likely to cause the defendant irreparable harm, the clerk of circuit 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 clerk of circuit 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. (1) (b) shall inform the intended recipient that, if a prior assignment under sub. (1) (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.

778.30(2)(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. (1) (c), the clerk shall inform the court of that determination. If the court issues an order under sub. (1) (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.

778.30(2)(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.

778.30(2)(b) (b) For each payment made under the assignment under sub. (1) (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.

778.30(2)(c) (c) A person who receives notice of the assignment under sub. (1) (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 that provided the notice. If the person has already received a notice of an assignment under sub. (1) (b) related to the same defendant, 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. (1) (b). Section 241.09 does not apply to assignments under this section.

778.30(2)(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 this chapter 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.

778.30(2)(e) (e) If an employer who receives notice of an assignment under sub. (1) (b) fails to notify the clerk of circuit court within 10 days after an employee is terminated or after the employee 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.

778.30(3) (3) Compliance by the person from whom the defendant receives money with the order under sub. (1) (b) operates as a discharge of the person’s liability to the defendant as to that portion of the defendant’s commissions, earnings, salaries, wages, benefits or other money so affected.

778.30(4) (4) No employer may use an assignment under sub. (1) (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 subsection 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 subsection.

778.30(5) (5) 

778.30(5)(a) (a) In this subsection, “payroll period” has the meaning given in s. 71.63 (5).

778.30(5)(b) (b) If after an assignment of earnings is in effect the defendant’s employer changes its payroll period, or the defendant changes employers and the new employer’s payroll period is different from the former employer’s payroll period, the clerk of circuit court may, unless otherwise ordered by a judge, amend the withholding assignment or order so that all of the following apply:

778.30(5)(b)1. 1. The withholding frequency corresponds to the new payroll period.

778.30(5)(b)2. 2. The amounts to be withheld reflect the adjustment to the withholding frequency.

778.30(5)(c) (c) The clerk of circuit court shall provide notice of the amended withholding assignment or order under this subsection by regular mail to the defendant’s employer and to the defendant.

778.30 History History: 1997 a. 148; 2003 a. 139; 2005 a. 253; 2005 a. 443 s. 265; 2009 a. 402.