Release of defendants charged with felonies. 969.03(1)(1)
A defendant charged with a felony may be released by the judge without bail or upon the execution of an unsecured appearance bond or the judge may in addition to requiring the execution of an appearance bond or in lieu thereof impose one or more of the following conditions which will assure appearance for trial:
Place the person in the custody of a designated person or organization agreeing to supervise the person.
Place restrictions on the travel, association or place of abode of the defendant during the period of release.
Prohibit the defendant from possessing any dangerous weapon.
Require the execution of an appearance bond with sufficient solvent sureties, or the deposit of cash in lieu of sureties. If the judge requires a deposit of cash in lieu of sureties, the person making the cash deposit shall be given written notice of the requirements of sub. (4)
Impose any other condition deemed reasonably necessary to assure appearance as required or any nonmonetary condition deemed reasonably necessary to protect members of the community from serious bodily harm or prevent intimidation of witnesses, including a condition requiring that the defendant return to custody after specified hours. The charges authorized by s. 303.08 (4)
shall not apply under this section.
As a condition of release in all cases, a person released under this section shall not commit any crime.
Any person who is charged with a felony and released under this section shall comply with s. 940.49
. The person shall be given written notice of this requirement.
Once bail has been given and a charge is pending or is thereafter filed or transferred to another court, the latter court shall continue the original bail in that court subject to s. 969.08
. A single bond form shall be utilized for all stages of the proceedings through conviction and sentencing or the granting of probation.
If a judgment of conviction is entered in a prosecution in which a deposit had been made in accordance with sub. (1) (d)
, the balance of the deposit, after deduction of the bond costs, shall be applied first to the payment of any restitution ordered under s. 973.20
and then, if ordered restitution is satisfied in full, to the payment of the judgment.
If the complaint against the defendant has been dismissed or if the defendant has been acquitted, the entire sum deposited shall be returned. A deposit under sub. (1) (d)
shall be returned to the person who made the deposit, his or her heirs or assigns, subject to sub. (4)
The restriction on the application of cash deposits under subs. (4)
do not apply if bail is forfeited under s. 969.13
The trial court, not the accused, decides whether to require cash or securities for a bond under sub. (1) (d). State v. Gassen, 143 Wis. 2d 761
, 422 N.W.2d 863
(Ct. App. 1988).
As used in this section, “crime" includes violations committed in another jurisdiction. State v. West, 181 Wis. 2d 792
, 512 N.W.2d 207
(Ct. App. 1993).
The application of bail posted by 3rd parties to the defendant's fines under sub. (4) was not unconstitutional. State v. Iglesias, 185 Wis. 2d 118
, 517 N.W.2d 175
The conditions that a court is authorized to impose under s. 969.01 and this section govern the release of a defendant from custody and do not apply if the defendant cannot post bond and is not released. A court may impose pretrial, no-contact provisions on incarcerated defendants under s. 940.47 if the terms of that statute are met. State v. Orlik, 226 Wis. 2d 527
, 595 N.W.2d 468
(Ct. App. 1999), 98-2826
The state need not obtain a conviction for the underlying crime in order to prove that the defendant violated the bail jumping statute by committing a crime. If there is evidence sufficient for a reasonable jury to conclude beyond a reasonable doubt that a defendant intentionally violated a bond by committing a crime, that evidence is not required to be in the form of a conviction for the underlying crime. State v. Hauk, 2002 WI App 226
, 257 Wis. 2d 579
, 652 N.W.2d 393
The retention of 10 percent of a partial bail deposit, with no penalty for release on recognizance or where full bail is given, does not violate equal protection requirements. Schilb v. Kuebel, 404 U.S. 357
Pretrial detention; denial of release from custody. 969.035(1)(1)
In this section, “violent crime" means any crime specified in s. 940.01
, 940.19 (5)
, 940.195 (5)
, 940.225 (1)
, 948.02 (1)
, or 948.085
A circuit court may deny release from custody under this section to any of the following persons:
A person accused of committing or attempting to commit a violent crime and the person has a previous conviction for committing or attempting to commit a violent crime.
A court may proceed under this section if the district attorney alleges to the court and provides the court with documents as follows:
Provides a copy of the complaint charging the commission or attempted commission of the present offense specified in sub. (2) (a)
Alleges that available conditions of release will not adequately protect members of the community from serious bodily harm or prevent the intimidation of witnesses.
If the court determines that the district attorney has complied with sub. (3)
, the court may order that the detention of a person who is currently in custody be continued or may issue a warrant commanding any law enforcement officer to bring the defendant without unnecessary delay before the court. When the defendant is brought before the court, he or she shall be given a copy of the documents specified in sub. (3)
and informed of his or her rights under this section and s. 970.02 (1)
A pretrial detention hearing is a hearing before a court for the purpose of determining if the continued detention of the defendant is justified. A pretrial detention hearing may be held in conjunction with a preliminary examination under s. 970.03
or a conditional release revocation hearing under s. 969.08 (5) (b)
, but separate findings shall be made by the court relating to the pretrial detention, preliminary examination and conditional release revocation. The pretrial detention hearing shall be commenced within 10 days from the date the defendant is detained or brought before the court under sub. (4)
. The defendant may not be denied release from custody in accordance with s. 969.03
for more than 10 days prior to the hearing required by this subsection.
During the pretrial detention hearing:
The state has the burden of going forward and proving by clear and convincing evidence that the defendant committed an offense specified under sub. (2) (a)
, or that the defendant committed or attempted to commit a violent crime subsequent to a prior conviction for a violent crime.
The state has the burden of going forward and proving by clear and convincing evidence that available conditions of release will not adequately protect members of the community from serious bodily harm or prevent the intimidation of witnesses.
The evidence shall be presented in open court with the right of confrontation, right to call witnesses, right to cross-examination and right to representation by counsel. The rules of evidence applicable in criminal trials govern the admissibility of evidence at the hearing.
The court may exclude witnesses until they are called to testify, may direct that persons who are expected to be called as witnesses be kept separate until called and may prevent them from communicating with one another until they have been examined.
Testimony of the defendant given shall not be admissible on the issue of guilt in any other judicial proceeding, but the testimony shall be admissible in perjury proceedings and for impeachment purposes in any subsequent proceeding.
If the court does not make the findings under sub. (6) (a)
and the defendant is otherwise eligible, the defendant shall be released from custody with or without conditions in accordance with s. 969.03
If the court makes the findings under sub. (6) (a)
, the court may deny bail to the defendant for an additional period not to exceed 60 days following the hearing. If the time period passes and the defendant is otherwise eligible, he or she shall be released from custody with or without conditions in accordance with s. 969.03
In computing the 10-day periods under sub. (5)
and the 60-day period under sub. (8)
, the court shall omit any period of time found by the court to result from a delay caused by the defendant or a continuance granted which was initiated by the defendant. Delay is caused by the defendant only if the delay is expressly requested by the defendant.
The defendant may petition the court to be released from custody with or without conditions in accordance with s. 969.03
at any time.
A person who has been detained under this section is entitled to placement of his or her case on an expedited trial calendar and his or her trial shall be given priority.
Surety may satisfy default.
Any surety may, after default, pay to the clerk of the court the amount for which the surety was bound, or such lesser sum as the court, after notice and hearing, may direct, and thereupon be discharged.
History: 1993 a. 486
Endorsement of bail upon warrants. 969.05(1)(1)
In misdemeanor actions, the judge who issues a warrant may endorse upon the warrant the amount of bail.
The amount and method of posting bail may be endorsed upon felony warrants.
History: 1981 c. 183
Judicial conference; bail alternatives.
The judicial conference shall develop guidelines for cash bail for persons accused of misdemeanors which the supreme court shall adopt by rule. The guidelines shall relate primarily to individuals. The guidelines may be revised from time to time under this section.
History: 1981 c. 183
The constitutionality of this section is upheld. Demmith v. Wisconsin Judicial Conference, 166 Wis. 2d 649
, 480 N.W.2d 502
Taking of bail by law enforcement officer.
When bail has been set for a particular defendant, any law enforcement officer may take bail in accordance with s. 969.02
and release the defendant to appear in accordance with the conditions of the appearance bond. Bail shall not be required of a defendant who has been cited for commission of a misdemeanor in accordance with s. 968.085
. The law enforcement officer shall give a receipt to the defendant for the bail so taken and within a reasonable time deposit the bail with the clerk of court before whom the defendant is to appear. Bail taken by a law enforcement officer may be taken only at a sheriff's office or police station. The receipts shall be numbered serially and shall be in triplicate, one copy for the defendant, one copy to be filed with the clerk and one copy to be filed with the police or sheriff's department which takes the bail. This section does not require the release of a defendant from custody when an officer is of the opinion that the defendant is not in a fit condition to care for his or her own safety or would constitute, because of his or her physical condition, a danger to the safety of others. If a defendant is not released under this section, s. 970.01
History: 1981 c. 183
; 1983 a. 433
Officers may validly deny bail to a misdemeanant under this section. 75 Atty. Gen. 209
Law enforcement officers may be authorized by court rule to accept surety bonds for, or, under specified circumstances, 10 percent cash deposits of, the amount listed in a misdemeanor bail schedule when an accused cannot be promptly taken before a judge for bail determination. However, such rules may not afford officers discretion as to the amount or form of bail an accused individual must post. 63 Atty. Gen. 241.
Neither a county nor a county sheriff possesses statutory authority to use county funds to establish a revolving bail fund for the purpose of making loans to persons allowing them to post bail for certain kinds of offenses for which they are booked into the county jail. OAG 1-09
Grant, reduction, increase or revocation of conditions of release. 969.08(1)(1)
Upon petition by the state or the defendant, the court before which the action is pending may increase or reduce the amount of bail or may alter other conditions of release or the bail bond or grant bail if it has been previously revoked. Except as provided in sub. (5)
, a defendant for whom conditions of release are imposed and who after 72 hours from the time of initial appearance before a judge continues to be detained in custody as a result of the defendant's inability to meet the conditions of release, upon application, is entitled to have the conditions reviewed by the judge of the court before whom the action against the defendant is pending. Unless the conditions of release are amended and the defendant is thereupon released, the judge shall set forth on the record the reasons for requiring the continuation of the conditions imposed. A defendant who is ordered released on a condition which requires that he or she return to custody after specified hours, upon application, is entitled to a review by the judge of the court before whom the action is pending. Unless the requirement is removed and the defendant thereupon released on another condition, the judge shall set forth on the record the reasons for continuing the requirement.
Violation of the conditions of release or the bail bond constitutes grounds for the court to increase the amount of bail or otherwise alter the conditions of release or, if the alleged violation is the commission of a serious crime, revoke release under this section.
Reasonable notice of petition under sub. (1)
by the defendant shall be given to the state.
Reasonable notice of petition under sub. (1)
by the state shall be given to the defendant, except as provided in sub. (5)
A court shall proceed under par. (b)
if the district attorney alleges to the court and provides the court with documents as follows:
Alleges that the defendant is released on conditions for the alleged commission of a serious crime;
Alleges that the defendant has violated the conditions of release by having committed a serious crime; and
Provides a copy of the complaint charging the commission of the serious crime specified in subd. 2.
If the court determines that the state has complied with par. (a)
, the court may issue a warrant commanding any law enforcement officer to bring the defendant without unnecessary delay before the court. When the defendant is brought before the court, he or she shall be given a copy of the documents specified in par. (a)
and informed of his or her rights under s. 970.02 (1)
. The court may hold the defendant in custody and suspend the previously imposed conditions of release pending a hearing on the alleged breach. The hearing under this paragraph and the preliminary examination under s. 970.03
, if required, shall be a combined hearing, with the court making the separate findings required under this paragraph and s. 970.03
at the conclusion of the combined hearing. The hearing shall be commenced within 7 days from the date the defendant is taken into custody. The defendant may not be held without setting conditions of release for more than 7 days unless a hearing is held and the findings required by this paragraph are established.
At a hearing on the alleged violation the state has the burden of going forward and proving by clear and convincing evidence that the violation occurred while the defendant was on conditional release. The evidence shall be presented in open court with the right of confrontation, right to call witnesses, right of cross-examination and right to representation by counsel. The rules of evidence applicable in criminal trials govern the admissibility of evidence at the hearing.
Upon a finding by the court that the state has established by clear and convincing evidence that the defendant has committed a serious crime while on conditional release, the court may revoke the release of the defendant and hold the defendant for trial without setting conditions of release. No reference may be made during the trial of the offense to the court's finding in the hearing. No reference may be made in the trial to any testimony of the defendant at the hearing, except if the testimony is used for impeachment purposes. If the court does not find that the state has established by clear and convincing evidence that the defendant has committed a serious crime while on conditional release, the defendant shall be released on bail or other conditions deemed appropriate by the court.
If the release of any defendant is revoked under subd. 3.
, the defendant may demand and shall be entitled to be brought to trial on the offense with respect to which he or she was formerly released on conditions within 60 days after the date on which he or she appeared before the court under subd. 1.
If the defendant is not brought to trial within the 60-day period he or she shall not be held longer without setting conditions of release and shall be released on bail or other conditions deemed appropriate by the court. In computing the 60-day period, the court shall omit any period of delay if the court finds that the delay results from a continuance granted at the exclusive request of the defendant.
The defendant may petition the court for reinstatement of conditions of release if any of the circumstances authorizing the revocation of release is altered. The altered conditions include, but are not limited to, the facts that the original complaint is dismissed, the defendant is found not guilty of that offense or the defendant is found guilty of a crime which is not a serious crime.
If the judge before whom the action is pending, in which a person was released on conditions, is not available, any other circuit judge of the county may act under this section.
If a person is charged with the commission of a serious crime in a county other than the county in which the person was released on conditions, the district attorney and court may proceed under sub. (6)
and certify the findings to the circuit court for the county in which the person was released on conditions. That circuit court shall make the release revocation decision based on the certified findings.
Information stated in, or offered in connection with, any order entered under this chapter setting bail or other conditions of release need not conform to the rules of evidence, except as provided under sub. (5) (b) 2.
or s. 901.05
This section does not limit any other authority of a court to revoke the release of a defendant.
A person who has had bail revoked under this section is entitled to placement of his or her case on an expedited trial calendar and his or her trial shall be given priority.
“Commission of a serious crime" includes a solicitation, conspiracy or attempt, under s. 948.35
, 1999 stats., or s. 939.30
, or 939.32
, to commit a serious crime.
“Serious crime" means any crime specified in s. 943.23 (1m)
, 1999 stats., or s. 943.23 (1r)
, 1999 stats., or s. 346.62 (4)
, 940.19 (5)
, 940.195 (5)
, 940.225 (1)
, 940.295 (3) (b) 1g.
, 940.302 (2)
, 941.20 (2)
, 943.01 (2) (c)
, 943.23 (1g)
, 948.02 (1)
, or 948.30
or, if the victim is a financial institution, as defined in s. 943.80 (2)
, a crime under s. 943.84 (1)
History: 1971 c. 298
; 1977 c. 449
; 1979 c. 112
; 1981 c. 183
; 1985 a. 293
; 1987 a. 90
; 1991 a. 153
; 1993 a. 50
; 1997 a. 143
; 1999 a. 32
; 2001 a. 109
; 2005 a. 212
; 2007 a. 97
Conditions of bond. 969.09(1)(1)
If a defendant is admitted to bail before sentencing the conditions of the bond shall include, without limitation, the requirements that the defendant will appear in the court having jurisdiction on a day certain and thereafter as ordered until discharged on final order of the court and that the defendant will submit to the orders and process of the court.
If the defendant is admitted to bail upon appeal, the conditions of the bond shall be that the defendant will duly prosecute the defendant's appeal, that the defendant will appear at such time and place as the court directs, and that if the judgment is affirmed or reversed and remanded for a new trial or further proceedings upon notice after remittitur, the defendant will surrender to the sheriff of the county in which the defendant was tried.
A defendant shall receive a copy of the bond which the defendant executes pursuant to this chapter.
History: 1993 a. 486
; 1995 a. 225
A petition for a writ of habeas corpus properly named the state department with custody of probationers, rather than the sheriff, as the respondent if the petitioner was released on bail pending appeal. Dreske v. DHSS, 483 F. Supp. 783