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939.621 939.621 Increased penalty for certain domestic abuse offenses.
939.621(1)(1) In this section, "domestic abuse repeater" means either of the following:
939.621(1)(a) (a) A person who commits, during the 72 hours immediately following an arrest for a domestic abuse incident as set forth in s. 968.075 (5), an act of domestic abuse, as defined in s. 968.075 (1) (a) that constitutes the commission of a crime. For the purpose of the definition under this paragraph, the 72-hour period applies whether or not there has been a waiver by the victim under s. 968.075 (5) (c).
939.621(1)(b) (b) A person who was convicted, on 2 separate occasions, of a felony or a misdemeanor for which a court imposed a domestic abuse surcharge under s. 973.055 (1) or waived a domestic abuse surcharge pursuant to s. 973.055 (4), during the 10-year period immediately prior to the commission of the crime for which the person presently is being sentenced, if the convictions remain of record and unreversed. For the purpose of the definition under this paragraph, it is immaterial that sentence was stayed, withheld or suspended, or that the person was pardoned, unless such pardon was granted on the ground of innocence. In computing the preceding 10-year period, time that the person spent in actual confinement serving a criminal sentence shall be excluded.
939.621(2) (2) If a person commits an act of domestic abuse, as defined in s. 968.075 (1) (a) and the act constitutes the commission of a crime, the maximum term of imprisonment for that crime may be increased by not more than 2 years if the person is a domestic abuse repeater. The victim of the domestic abuse crime does not have to be the same as the victim of the domestic abuse incident that resulted in the prior arrest or conviction. The penalty increase under this section changes the status of a misdemeanor to a felony.
939.621 History History: 1987 a. 346; 1995 a. 304; 2011 a. 277.
939.621 Annotation When two penalty enhancers are applicable to the same crime, the length of the second penalty enhancer is based on the maximum term for the base crime as extended by the first penalty enhancer. State v. Quiroz, 2002 WI App 52, 251 Wis. 2d 245, 641 N.W.2d 715, 01-1549.
939.63 939.63 Penalties; use of a dangerous weapon.
939.63(1) (1) If a person commits a crime while possessing, using or threatening to use a dangerous weapon, the maximum term of imprisonment prescribed by law for that crime may be increased as follows:
939.63(1)(a) (a) The maximum term of imprisonment for a misdemeanor may be increased by not more than 6 months.
939.63(1)(b) (b) If the maximum term of imprisonment for a felony is more than 5 years or is a life term, the maximum term of imprisonment for the felony may be increased by not more than 5 years.
939.63(1)(c) (c) If the maximum term of imprisonment for a felony is more than 2 years, but not more than 5 years, the maximum term of imprisonment for the felony may be increased by not more than 4 years.
939.63(1)(d) (d) The maximum term of imprisonment for a felony not specified in par. (b) or (c) may be increased by not more than 3 years.
939.63(2) (2) The increased penalty provided in this section does not apply if possessing, using or threatening to use a dangerous weapon is an essential element of the crime charged.
939.63(3) (3) This section applies only to crimes specified under chs. 939 to 951 and 961.
939.63 Annotation The fact that the maximum term for a misdemeanor may exceed one year under sub. (1) (a) 1. does not upgrade the crime to felony status. State v. Denter, 121 Wis. 2d 118, 357 N.W.2d 555 (1984).
939.63 Annotation Possession encompasses both actual and constructive possession. To prove a violation of this section, the state must prove that the defendant possessed the weapon to facilitate the predicate offense. State v. Peete, 185 Wis. 2d 255, 517 N.W.2d 149 (1994). See also State v. Howard, 211 Wis. 2d 269, 564 N.W.2d 753 (1997), 95-0770.
939.63 Annotation An automobile may constitute a dangerous weapon under s. 939.22 (10). State v. Bidwell, 200 Wis. 2d 200, 546 N.W.2d 507 (Ct. App. 1996).
939.63 Annotation Under Peete, there is sufficient evidence of possession if the evidence allows a reasonable jury to find beyond a reasonable doubt that the defendant possessed a dangerous weapon in order to use it or threaten to use it, even if the defendant did not use or threaten to use it in the commission of the crime. State v. Page, 2000 WI App 267, 240 Wis. 2d 276, 622 N.W.2d 285, 99-2015.
939.63 Annotation When two penalty enhancers are applicable to the same crime, the length of the second penalty enhancer is based on the maximum term for the base crime as extended by the first penalty enhancer. State v. Quiroz, 2002 WI App 52, 251 Wis. 2d 245, 641 N.W.2d 715, 01-1549.
939.632 939.632 Penalties; violent crime in a school zone.
939.632(1)(1) In this section:
939.632(1)(a) (a) "School" means a public school, parochial or private school, or tribal school, as defined in s. 115.001 (15m), that provides an educational program for one or more grades between grades 1 and 12 and that is commonly known as an elementary school, middle school, junior high school, senior high school, or high school.
939.632(1)(b) (b) "School bus" has the meaning given in s. 340.01 (56).
939.632(1)(c) (c) "School premises" means any school building, grounds, recreation area or athletic field or any other property owned, used or operated for school administration.
939.632(1)(d) (d) "School zone" means any of the following:
939.632(1)(d)1. 1. On the premises of a school.
939.632(1)(d)2. 2. Within 1,000 feet from the premises of a school.
939.632(1)(d)3. 3. On a school bus or public transportation transporting students to and from a public or private school or to and from a tribal school, as defined in s. 115.001 (15m).
939.632(1)(d)3m. 3m. At school bus stops where students are waiting for a school bus or are being dropped off by a school bus.
939.632(1)(e) (e) "Violent crime" means any of the following:
939.632(1)(e)2. 2. The solicitation, conspiracy or attempt, under s. 939.30, 939.31 or 939.32, to commit a Class A felony.
939.632(2) (2) If a person commits a violent crime in a school zone, the maximum term of imprisonment is increased as follows:
939.632(2)(a) (a) If the violent crime is a felony, the maximum term of imprisonment is increased by 5 years.
939.632(2)(b) (b) If the violent crime is a misdemeanor, the maximum term of imprisonment is increased by 3 months and the place of imprisonment is the county jail.
939.632(3) (3)
939.632(3)(a)(a) In addition to any other penalties that may apply to the crime under sub. (2), the court may require the person to complete 100 hours of community service work for a public agency or a nonprofit charitable organization. The court shall ensure that the defendant is provided a written statement of the terms of the community service order. Any organization or agency acting in good faith to which a defendant is assigned under an order under this paragraph has immunity from any civil liability in excess of $25,000 for acts or omissions by or impacting on the defendant.
939.632(3)(b) (b) The court shall not impose the requirement under par. (a) if the court determines that the person would pose a threat to public safety while completing the requirement.
939.632(4) (4) This section provides for the enhancement of the penalties applicable for the underlying crime. The court shall direct that the trier of fact find a special verdict as to all of the issues specified in sub. (2).
939.632 Annotation The violent crime in a school zone penalty enhancer is not unconstitutional as applied to the defendant. The legislature seeks to deter violent crime near schools in an effort to create a safety zone around schools. The 1,000-foot perimeter is a reasonable distance to try to accomplish this legislative goal. State v. Quintana, 2007 WI App 29, 299 Wis. 2d 234, 729 N.W.2d 776, 06-0499.
939.635 939.635 Increased penalty for certain crimes against children committed by a child care provider. If a person commits a violation of s. 948.02, 948.025, or 948.03 (2) or (3) against a child for whom the person was providing child care for compensation, the maximum term of imprisonment for that crime may be increased by not more than 5 years.
939.635 History History: 2011 a. 82.
939.645 939.645 Penalty; crimes committed against certain people or property.
939.645(1)(1) If a person does all of the following, the penalties for the underlying crime are increased as provided in sub. (2):
939.645(1)(a) (a) Commits a crime under chs. 939 to 948.
939.645(1)(b) (b) Intentionally selects the person against whom the crime under par. (a) is committed or selects the property that is damaged or otherwise affected by the crime under par. (a) in whole or in part because of the actor's belief or perception regarding the race, religion, color, disability, sexual orientation, national origin or ancestry of that person or the owner or occupant of that property, whether or not the actor's belief or perception was correct.
939.645(2) (2)
939.645(2)(a)(a) If the crime committed under sub. (1) is ordinarily a misdemeanor other than a Class A misdemeanor, the revised maximum fine is $10,000 and the revised maximum term of imprisonment is one year in the county jail.
939.645(2)(b) (b) If the crime committed under sub. (1) is ordinarily a Class A misdemeanor, the penalty increase under this section changes the status of the crime to a felony and the revised maximum fine is $10,000 and the revised maximum term of imprisonment is 2 years.
939.645(2)(c) (c) If the crime committed under sub. (1) is a felony, the maximum fine prescribed by law for the crime may be increased by not more than $5,000 and the maximum term of imprisonment prescribed by law for the crime may be increased by not more than 5 years.
939.645(3) (3) This section provides for the enhancement of the penalties applicable for the underlying crime. The court shall direct that the trier of fact find a special verdict as to all of the issues specified in sub. (1).
939.645(4) (4) This section does not apply to any crime if proof of race, religion, color, disability, sexual orientation, national origin or ancestry or proof of any person's perception or belief regarding another's race, religion, color, disability, sexual orientation, national origin or ancestry is required for a conviction for that crime.
939.645 History History: 1987 a. 348; 1991 a. 291; 2001 a. 109.
939.645 Annotation When two penalty enhancers are applicable to the same crime, the length of the second penalty enhancer is based on the maximum term for the base crime as extended by the first penalty enhancer. State v. Quiroz, 2002 WI App 52, 251 Wis. 2d 245, 641 N.W.2d 715, 01-1549.
939.645 Annotation The "hate crimes" law, s. 939.645, does not unconstitutionally infringe upon free speech. State v. Mitchell, 508 U.S. 476, 124 L. Ed. 2d 436 (1993); 178 Wis. 2d 597, 504 N.W.2d 610 (1993).
939.645 Annotation Hate Crimes: New Limits on the Scope of the 1st Amendment. Resler. 77 MLR 415 (1993).
939.645 Annotation Put to the Proof: Evidentiary Considerations in Wisconsin Hate Crime Prosecutions. Read. 89 MLR 453 (2005).
939.645 Annotation Talking about Hate Speech: A Rhetorical Analysis of American and Canadian Regulation of Hate Speech. Moran. 1994 WLR 1425.
939.645 Annotation Hate Crimes. Kassel. Wis. Law. Oct. 1992.
subch. V of ch. 939 SUBCHAPTER V
RIGHTS OF THE PROSECUTION
939.65 939.65 Prosecution under more than one section permitted. Except as provided in s. 948.025 (3), if an act forms the basis for a crime punishable under more than one statutory provision, prosecution may proceed under any or all such provisions.
939.65 History History: 1993 a. 227.
939.65 Annotation Due process does not require that a person know with certainty which crime, among several, the person is committing, at least until the prosecution exercises its charging discretion. Harris v. State, 78 Wis. 2d 357, 254 N.W.2d 291 (1977).
939.66 939.66 Conviction of included crime permitted. Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:
939.66(1) (1) A crime which does not require proof of any fact in addition to those which must be proved for the crime charged.
939.66(2) (2) A crime which is a less serious type of criminal homicide than the one charged.
939.66(2m) (2m) A crime which is a less serious or equally serious type of battery than the one charged.
939.66(2p) (2p) A crime which is a less serious or equally serious type of violation under s. 948.02 than the one charged.
939.66(2r) (2r) A crime which is a less serious type of violation under s. 943.23 than the one charged.
939.66(3) (3) A crime which is the same as the crime charged except that it requires recklessness or negligence while the crime charged requires a criminal intent.
939.66(4) (4) An attempt in violation of s. 939.32 to commit the crime charged.
939.66(4m) (4m) A crime of failure to timely pay child support under s. 948.22 (3) when the crime charged is failure to pay child support for more than 120 days under s. 948.22 (2).
939.66(5) (5) The crime of attempted battery when the crime charged is sexual assault, sexual assault of a child, robbery, mayhem or aggravated battery or an attempt to commit any of them.
939.66(6) (6) A crime specified in s. 940.285 (2) (b) 4. or 5. when the crime charged is specified in s. 940.19 (2) to (6), 940.225 (1), (2) or (3) or 940.30.
939.66(6c) (6c) A crime that is a less serious type of violation under s. 940.285 than the one charged.
939.66(6e) (6e) A crime that is a less serious type of violation under s. 940.295 than the one charged.
939.66(7) (7) The crime specified in s. 940.11 (2) when the crime charged is specified in s. 940.11 (1).
939.66 Annotation To submit a lesser included offense, there must be some reasonable ground in the evidence for conviction on the lesser and acquittal on the greater. A lesser offense is permissible when the evidence requires the jury to find a disputed factual element in the charged offense that is not required for the lesser and the jury might find the disputed fact either way. State v. Melvin, 49 Wis. 2d 246, 181 N.W.2d 490 (1970).
939.66 Annotation Attempted battery can only be an included crime as to the specific offenses listed. State v. Melvin, 49 Wis. 2d 246, 181 N.W.2d 490 (1970).
939.66 Annotation A charge of possession of a pistol by a minor is not an included crime in a charge of attempted first-degree murder because it includes the element of minority that the greater crime does not. State v. Melvin, 49 Wis. 2d 246, 181 N.W.2d 490 (1970).
939.66 Annotation Disorderly conduct is not a lesser included offense of criminal damage to property. State v. Chacon, 50 Wis. 2d 73, 183 N.W.2d 84 (1971).
939.66 Annotation While attempted aggravated battery is not an included crime of aggravated battery under sub. (1), it is under sub. (4). The reduced charge does not put the defendant in double jeopardy. Dunn v. State, 55 Wis. 2d 192, 197 N.W.2d 749 (1972).
939.66 Annotation Under sub. (1), the emphasis is on the proof, not the pleading, and the "stricken word test" stated in Eastway v. State, 189 Wis. 56, is not incorporated in the statute. Martin v. State, 57 Wis. 2d 499, 204 N.W.2d 499 (1973).
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2011-12 Wisconsin Statutes updated though 2013 Wis. Act 200 and all Supreme Court Orders entered before April 18, 2014. Published and certified under s. 35.18. Changes effective after April 18, 2014 are designated by NOTES. (Published 4-18-14)