Chapter 973

973.032 Annotation When a presentence investigation recommends it, nothing prohibits a court from sentencing a person to the intensive sanctions program although the sentencing guidelines would recommend probation. State v. Miller, 180 Wis. 2d 320, 509 N.W.2d 98 (Ct. App. 1993).

973.032 Annotation An extension of confinement under this provision may be appealed by common law writ of certiorari. The time for appeal is governed by s. 808.04. State v. Bridges, 195 Wis. 2d 254, 536 N.W.2d 153 (Ct. App. 1995), 94-0880.

973.032 Annotation The extension of a placement period under the intensive sanctions program must be based on public safety considerations and the participant’s need for punishment and treatment. All that needs to be shown at an extension hearing is that the participant has not made sufficient progress in the program and that more time is required to meet those concerns. State v. Turner, 200 Wis. 2d 168, 546 N.W.2d 880 (Ct. App. 1996), 95-1295.

973.032 Annotation The right, under s. 972.14 (2), of a defendant to make a statement prior to sentencing does not apply to an extension of a placement under the intensive sanctions program. State v. Turner, 200 Wis. 2d 168, 546 N.W.2d 880 (Ct. App. 1996), 95-1295.

973.032 Annotation Intensive Sanctions: A New Sentencing Option. Fiedler. Wis. Law. June 1992.

973.0335 973.0335 Sentencing; restriction on possession of body armor. Whenever a court imposes a sentence or places a defendant on probation for a conviction for a violent felony, as defined in s. 941.291 (1) (b), the court shall inform the defendant of the requirements and penalties under s. 941.291.

973.0335 History History: 2001 a. 95.

973.035 973.035 Transfer to state-local shared correctional facilities. Any person serving a sentence of imprisonment to the Wisconsin state prisons, a county jail, a county reforestation camp or a county house of correction or serving a sentence to the intensive sanctions program may be transferred to a state-local shared correctional facility under s. 302.45 (1).

973.035 History History: 1983 a. 332; 1989 a. 31; 1991 a. 39.

973.04 973.04 Credit for imprisonment under earlier sentence for the same crime. When a sentence is vacated and a new sentence is imposed upon the defendant for the same crime, the department shall credit the defendant with confinement previously served.

973.04 History History: 1983 a. 66, 528.

973.04 Annotation While periods of time served due to an indigent’s inability to post bail prior to trial must be credited as time served on a prison sentence imposed, a court need not credit time served by an indigent offender against probationary confinement. State v. Avila, 192 Wis. 2d 870, 532 N.W.2d 423 (1995).

973.04 Annotation An offender is not entitled to additional sentence credit under this section when: 1) the vacated sentence was originally imposed concurrent to a separate sentence; 2) the separate sentence is not vacated; 3) the vacated sentence is reimposed consecutively to the non-vacated sentence; and 4) the time that the defendant requested was served in satisfaction of the sentence that was not vacated. State v. Lamar, 2011 WI 50, 334 Wis. 2d 536, 799 N.W.2d 758, 08-2206.

973.042 973.042 Child pornography surcharge.

973.042(1) (1) In this section, “image” includes a video recording, a visual representation, a positive or negative image on exposed film, and data representing a visual image.

973.042(2) (2) If a court imposes a sentence or places a person on probation for a crime under s. 948.05, 948.12, or 948.125 and the person was at least 18 years of age when the crime was committed, the court shall impose a child pornography surcharge of $500 for each image or each copy of an image associated with the crime. The court shall determine the number of images or copies of images associated with the crime by a preponderance of the evidence and without a jury.

973.042(4) (4) After determining the amount due, the clerk of court shall collect and transmit the amount to the county treasurer under s. 59.40 (2) (m). The county treasurer shall then make payment to the secretary of administration under s. 59.25 (3) (f) 2.

973.042(5) (5) The secretary of administration shall credit the surcharge to the appropriation account under s. 20.455 (5) (gj).

973.042(6) (6) If an inmate in a state prison or a person sentenced to a state prison has not paid the child pornography surcharge under this section, the department shall assess and collect the amount owed from the inmate’s wages or other moneys. Any amount collected under this subsection shall be transmitted to the secretary of administration.

973.042 History History: 2005 a. 433; 2013 a. 20; 2023 a. 224.

973.042 Annotation The child pornography surcharge under sub. (2) is not punitive. Under the intent-effects test, the primary function of the child pornography surcharge statute is not punitive nor is the child pornography surcharge punitive in effect. The surcharge is linked to funding of investigations of sexual exploitation of children and possession of child pornography and grants to eligible public agencies or nonprofit organizations that provide counseling services to victims of sexual assault. Therefore, the circuit court in this case did not need to inform the defendant of the child pornography surcharge during the plea colloquy. State v. Schmidt, 2021 WI 65, 397 Wis. 2d 758, 960 N.W.2d 888, 20-0616.

973.042 Annotation The child pornography surcharge under sub. (2) applies to every image of child pornography that forms the basis of a charge of sexual exploitation of a child or possession of child pornography, regardless of whether those images form the basis of either a convicted charge or a read-in charge, so long as those images of child pornography are connected to and brought into relation with the convicted individual’s offense of sexual exploitation of a child or possession of child pornography. A circuit court must impose the child pornography surcharge for those images. State v. Schmidt, 2021 WI 65, 397 Wis. 2d 758, 960 N.W.2d 888, 20-0616.

973.043 973.043 Drug offender diversion surcharge.

973.043(1) (1) If a court imposes a sentence or places a person on probation for a crime under ch. 943 that was committed on or after October 1, 2005, the court shall impose a drug offender diversion surcharge of $10 for each conviction.

973.043(2) (2) After determining the amount due, the clerk of court shall collect and transmit the amount to the county treasurer under s. 59.40 (2) (m). The county treasurer shall then make payment to the secretary of administration under s. 59.25 (3) (f) 2.

973.043(3) (3) All moneys collected from drug offender diversion surcharges shall be credited to the appropriation account under s. 20.455 (2) (kv) and used for the purpose of making grants to counties under s. 165.95.

973.043(4) (4) If an inmate in a state prison or a person sentenced to a state prison has not paid the drug offender diversion surcharge under this section, the department shall assess and collect the amount owed from the inmate’s wages or other moneys. Any amount collected shall be transmitted to the secretary of administration.

973.043 History History: 2005 a. 25; 2013 a. 20.

973.045 973.045 Crime victim and witness assistance surcharge.

973.045(1) (1) If a court imposes a sentence or places a person on probation, the court shall impose a crime victim and witness assistance surcharge. A surcharge imposed under this subsection may not be waived, reduced, or forgiven for any reason. The surcharge is the total amount calculated by adding up the amount for every misdemeanor count and every felony count as follows:

973.045(1)(a) (a) For each misdemeanor count on which a conviction occurred, $67.

973.045(1)(b) (b) For each felony count on which a conviction occurred, $92.

973.045(1m) (1m) 

973.045(1m)(a) (a) In this subsection, “civil offense” means an offense punishable by a forfeiture.

973.045(1m)(b) (b) If all of the following apply, the court shall impose a crime victim and witness assistance surcharge in addition to any forfeiture that it imposes:

973.045(1m)(b)1. 1. The person is charged with one or more crimes in a complaint.

973.045(1m)(b)2. 2. As a result of the complaint being amended, the person is charged with a civil offense in lieu of one of those crimes.

973.045(1m)(b)3. 3. The court finds that the person committed that civil offense on or after October 27, 2007.

973.045(1m)(c) (c) The amount of the surcharge imposed under par. (b) shall be the amount specified in sub. (1) (a) or (b), depending on whether the crime that was the subject of the amendment under par. (b) 2. was a misdemeanor or a felony.

973.045(2) (2) After the clerk determines the amount due, the clerk of court shall collect and transmit the amount to the county treasurer under s. 59.40 (2) (m). The county treasurer shall then make payment to the secretary of administration under s. 59.25 (3) (f) 2. The secretary of administration shall credit to the appropriation account under s. 20.455 (5) (g) the amount paid to the secretary by the county treasurer under this subsection and any amount collected under sub. (4).

973.045(4) (4) If an inmate in a state prison or a person sentenced to a state prison has not paid the crime victim and witness assistance surcharge under this section, the department shall assess and collect the amount owed from the inmate’s wages or other moneys. Any amount collected shall be transmitted to the secretary of administration.

973.045 History History: 1983 a. 27; 1987 a. 27; 1989 a. 31; 1993 a. 16; 1995 a. 201; 2003 a. 33; 2005 a. 25; 2007 a. 20; 2009 a. 28; 2011 a. 32, 257; 2011 a. 260 s. 81; 2013 a. 20.

973.0455 973.0455 Crime prevention funding board surcharge.

973.0455(1) (1) If a court in a county that has established a crime prevention funding board under s. 59.54 (28) imposes a sentence or places a person on probation, the court shall impose a crime prevention funding board surcharge. The surcharge is the total amount calculated by adding up, for each misdemeanor or felony count on which a conviction occurred, $20.

973.0455(2) (2) After the clerk determines the amount due, the clerk of court shall collect and transmit the amount to the county treasurer under s. 59.40 (2) (n). The county treasurer shall then distribute the moneys under s. 59.25 (3) (gm).

973.0455 History History: 2015 a. 55.

973.046 973.046 Deoxyribonucleic acid analysis surcharge.

973.046(1r) (1r) If a court imposes a sentence or places a person on probation, the court shall impose a deoxyribonucleic acid analysis surcharge, calculated as follows:

973.046(1r)(a) (a) For each conviction for a felony, $250.

973.046(1r)(b) (b) For each conviction for a misdemeanor, $200.

973.046(2) (2) After the clerk of court determines the amount due, the clerk shall collect and transmit the amount to the county treasurer under s. 59.40 (2) (m). The county treasurer shall then make payment to the secretary of administration under s. 59.25 (3) (f) 2.

973.046(3) (3) All moneys collected from deoxyribonucleic acid analysis surcharges shall be deposited by the secretary of administration as specified in s. 20.455 (2) (Lp) and utilized under s. 165.77.

973.046(4) (4) If an inmate in a state prison or a person sentenced to a state prison has not paid the deoxyribonucleic acid analysis surcharge under this section, the department shall assess and collect the amount owed from the inmate’s wages or other moneys. Any amount collected shall be transmitted to the secretary of administration.

973.046 History History: 1993 a. 16; 1995 a. 201; 1997 a. 27; 1999 a. 9; 2003 a. 33; 2005 a. 277; 2013 a. 20; 2017 a. 59.

973.046 Annotation The imposition of a single $250 DNA surcharge was not punitive for ex post facto purposes because it was discretionary when the defendant committed a felony offense but mandatory when the defendant was sentenced. The defendant failed to show that the mandatory imposition of the DNA surcharge was punitive in either intent or effect and thus violative of the ex post facto prohibition. State v. Scruggs, 2017 WI 15, 373 Wis. 2d 312, 891 N.W.2d 786, 14-2981.

973.046 Annotation The mandatory DNA surcharge under sub. (1r) is not an ex post facto law because the surcharge is not punishment under the intent-effects test. The intent of the mandatory DNA surcharge is not punitive. Rather, the surcharge is intended to fund the costs associated with the broad expansion of the DNA databank and all the activities related to it. Likewise, a review of the precedential factors guiding the court’s analysis shows that the mandatory DNA surcharge does not have a punitive effect. Radaj, 2015 WI App 50, and Elward, 2015 WI App 51, were wrongly decided and are overruled. State v. Williams, 2018 WI 59, 381 Wis. 2d 661, 912 N.W.2d 373, 16-0883.

973.046 Annotation Circuit courts do not have discretion under sub. (1r) to waive imposition of DNA analysis surcharges for crimes committed after January 1, 2014. State v. Cox, 2018 WI 67, 382 Wis. 2d 338, 913 N.W.2d 780, 16-1745.

973.046 Annotation Plea hearing courts do not have a duty to inform defendants about the mandatory DNA surcharge as part of the plea colloquy because the surcharge is not punishment and therefore not a direct consequence of a plea. State v. Freiboth, 2018 WI App 46, 383 Wis. 2d 733, 916 N.W.2d 643, 15-2535.

973.046 Annotation Sub. (4) and s. 165.755 (6) allow the Department of Corrections to determine the deduction percentage for these surcharges. Additionally, it is clear from the statutory language of these sections that the department’s authority to collect funds to pay these surcharges is not limited to an inmate’s prison wages. The statutes also provide that the assessments can be collected from the inmate’s “other moneys,” which unambiguously include gifted funds. State ex rel. Bryson v. Carr, 2022 WI App 34, 404 Wis. 2d 307, 978 N.W.2d 595, 20-1949.

973.047 973.047 Deoxyribonucleic acid analysis requirements.

973.047(1f) (1f) If a court imposes a sentence or places a person on probation, the court shall require the person to provide a biological specimen to the state crime laboratories for deoxyribonucleic acid analysis. The court shall inform the person that he or she may request expungement under s. 165.77 (4).

973.047(1m) (1m) The results from deoxyribonucleic acid analysis of a specimen provided under this section may be used only as authorized under s. 165.77 (3).

973.047(2) (2) Biological samples required under sub. (1f) shall be obtained and submitted as specified in rules promulgated by the department of justice under s. 165.76 (4).

973.047 History History: 1993 a. 16, 98, 227; 1995 a. 440; 1999 a. 9; 2005 a. 275; 2009 a. 202, 261; 2013 a. 20; 2013 a. 173 s. 33.

973.048 973.048 Sex offender reporting requirements.

973.048(1m) (1m) 

973.048(1m)(a) (a) Except as provided in sub. (2m), if a court imposes a sentence or places a person on probation for any violation, or for the solicitation, conspiracy, or attempt to commit any violation, under ch. 940, 944, or 948 or s. 942.08 or 942.09, or ss. 943.01 to 943.15, the court may require the person to comply with the reporting requirements under s. 301.45 if the court determines that the underlying conduct was sexually motivated, as defined in s. 980.01 (5), and that it would be in the interest of public protection to have the person report under s. 301.45.

973.048(1m)(b) (b) If a court under par. (a) orders a person to comply with the reporting requirements under s. 301.45 in connection with a violation, or the solicitation, conspiracy, or attempt to commit a violation, of s. 942.09 and the person was under the age of 21 when he or she committed the offense, the court may provide that the person be released from the requirement to comply with the reporting requirements under s. 301.45 upon successfully completing the sentence or probation imposed for the offense. A person successfully completes a sentence if he or she is not convicted of a subsequent offense during the term of the sentence. A person successfully completes probation if probation is not revoked and the person satisfies the conditions of probation.

973.048(2m) (2m) If a court imposes a sentence or places a person on probation for a violation, or for the solicitation, conspiracy or attempt to commit a violation, of s. 940.22 (2), 940.225 (1), (2), or (3), 944.06, 948.02 (1) or (2), 948.025, 948.05, 948.051, 948.055, 948.06, 948.07, 948.075, 948.08, 948.085, 948.095, 948.11 (2) (a) or (am), 948.12, 948.125, 948.13, or 948.30, of s. 940.302 (2) if s. 940.302 (2) (a) 1. b. applies, or of s. 940.30 or 940.31 if the victim was a minor and the person was not the victim’s parent, the court shall require the person to comply with the reporting requirements under s. 301.45 unless the court determines, after a hearing on a motion made by the person, that the person is not required to comply under s. 301.45 (1m).

973.048(3) (3) In determining under sub. (1m) (a) whether it would be in the interest of public protection to have the person report under s. 301.45, the court may consider any of the following:

973.048(3)(a) (a) The ages, at the time of the violation, of the person and the victim of the violation.

973.048(3)(b) (b) The relationship between the person and the victim of the violation.

973.048(3)(c) (c) Whether the violation resulted in bodily harm, as defined in s. 939.22 (4), to the victim.

973.048(3)(d) (d) Whether the victim suffered from a mental illness or mental deficiency that rendered him or her temporarily or permanently incapable of understanding or evaluating the consequences of his or her actions.

973.048(3)(e) (e) The probability that the person will commit other violations in the future.

973.048(3)(g) (g) Any other factor that the court determines may be relevant to the particular case.

973.048(4) (4) If the court orders a person to comply with the reporting requirements under s. 301.45, the court may order the person to continue to comply with the reporting requirements until his or her death.

973.048(5) (5) If the court orders a person to comply with the reporting requirements under s. 301.45, the clerk of the court in which the order is entered shall promptly forward a copy of the order to the department of corrections. If the conviction on which the order is based is reversed, set aside or vacated, the clerk of the court shall promptly forward to the department of corrections a certificate stating that the conviction has been reversed, set aside or vacated.

973.048 History History: 1995 a. 440; 1997 a. 130; 1999 a. 89; 2001 a. 109; 2003 a. 50; 2005 a. 277; 2007 a. 116; 2009 a. 137; 2023 a. 224.

973.048 Cross-reference Cross-reference: See also ch. Jus 9, Wis. adm. code.

973.048 Annotation Sex-offender registration as a condition of bail-jumping probation was not authorized by s. 973.09 (1) (a). Bail jumping is not one of the offenses enumerated in the sex-offender registration statutes, this section or s. 301.45, that permit or require registration, and read-in, but dismissed, sexual assault charges do not bring a case within this section. State v. Martel, 2003 WI 70, 262 Wis. 2d 483, 664 N.W.2d 69, 02-1599.

973.048 Annotation Sub. (1m) authorizes the circuit court to require that a person convicted of specified crimes, including crimes enumerated in ch. 940, register as a sex offender if the court determines that the underlying conduct was sexually motivated, as defined in s. 980.01 (5), and if registration would be in the interest of public protection. Under Martel, 2003 WI 70, a read-in offense, including sexual assault, may not serve as a basis to order a defendant to register as a sex offender. State v. Jackson, 2012 WI App 76, 343 Wis. 2d 602, 819 N.W.2d 288, 10-2689.

973.049 973.049 Sentencing; restrictions on contact.

973.049(1) (1) In this section:

973.049(1)(a) (a) “Co-actor” means any individual who was a party to a crime considered at sentencing, whether or not the individual was charged with or convicted of the crime considered at sentencing.

973.049(1)(b) (b) “Crime considered at sentencing” means any crime for which the defendant was convicted or any read-in crime, as defined in s. 973.20 (1g) (b).

973.049(2) (2) When a court imposes a sentence on an individual or places an individual on probation for the conviction of a crime, the court may prohibit the individual from contacting victims of, witnesses to, or co-actors in, a crime considered at sentencing during any part of the individual’s sentence or period of probation if the court determines that the prohibition would be in the interest of public protection. For purposes of the prohibition, the court may determine who are the victims of or witnesses to any crime considered at sentencing.

973.049(3) (3) If a court issues an order under sub. (2), the court shall inform the individual of the prohibition and include the prohibition in the judgment of conviction for the crime.

973.049 History History: 2005 a. 32; 2011 a. 267.