973.01(8)(b)
(b) The court's explanation under
par. (a) 3. of a person's potential period of extended supervision does not create a right to a minimum period of extended supervision.
973.01 Annotation
Sub. (2) (c) does not authorize a sentencing court to impose any portion of a penalty enhancer as extended supervision rather than confinement in prison. State v. Jones, 2002 WI App 29,
250 Wis. 2d 77,
640 N.W.2d 151.
973.01 Annotation
While an offender must meet the eligibility requirements of s. 302.045 (2) to participate in the challenge incarceration program the trial court must, pursuant to sub. (3m), also determine if the offender is eligible for the program, in the exercise of its sentencing discretion. State v. Steele, 2001 WI App 160,
246 Wis. 2d 744,
632 N.W.2d 112.
973.01 Annotation
The exercise of sentencing discretion requires the court to exercise its discretion to create a sentence within the range provided by the legislature that reflects the circumstances of the situation and the particular characteristics of the offender. The court must consider the gravity of the offense, the offender's character and the public's need for protection. The weight given to any factor is left to the trial court's discretion. State v. Steele, 2001 WI App 160,
246 Wis. 2d 744,
632 N.W.2d 112.
973.01 Annotation
If a defendant makes a fraudulent representation to the court, which the court accepts and relies upon in granting a sentence, the court may later declare the sentence void, and double jeopardy does not bar a subsequently increased sentence. State v. Jones, 2002 WI App 208, 257 Wis. 2d. 163,
650 N.W.2d 844.
973.01 Annotation
A court may, in specific circumstances, consider credit for time spent in presentence custody as a factor in determining an appropriate sentence. Because the length of the defendant's presentence custody affected the time the defendant would actually spend in prison and the expected incarceration term impacted the circuit court's goal that the defendant receive sex offender treatment in an institutional setting while not remaining incarcerated longer than was necessary to receive treatment, presentence credit was appropriately considered. State v. Fenz, 2002 WI App 244,
258 Wis. 2d 281,
653 N.W.2d 280,
01-1434.
973.01 Annotation
Previously existing rules governing sentencing discretion are not unconstitutional when applied to sentences imposed under this section. State v. Gallion, 2002 WI App 265,
258 Wis. 2d 473,
653 N.W.2d 284.
973.01 Annotation
Sub. (2) (c) does not authorize a sentencing court to impose any portion of a penalty enhancer as extended supervision. State v. Volk, 2002 WI App 274,
258 Wis. 2d 584,
654 N.W.2d 479.
973.01 Annotation
Events subsequent to sentencing and relating to rehabilitation do not constitute a new sentencing factor justifying sentence modification. State v. Champion, 2002 WI App 267,
258 Wis. 2d 781,
654 N.W.2d 242.
973.01 Annotation
Despite the failure to object, a defendant may be entitled to resentencing if the sentence was affected by a trial court's reliance on an improper factor. State v. Groth, 2002 WI App 299,
258 Wis. 2d 889,
655 N.W.2d 163.
973.01 Annotation
When a statutory definition is available that provides a defendant with sufficient notice as to the expected course of conduct and an ascertainable standard for enforcement, the condition of extended supervision is not unconstitutionally vague. The definition of "dating relationship" in s. 813.12 (1) (ag) 1. provided the appellant an objective standard and adequate notice of when a condition applied that required her to introduce any person she was "dating" to her supervising agent. State v. Koenig, 2003 WI App 12,
259 Wis. 2d 833,
656 N.W.2d 499,
02-1076.
973.01 Annotation
Calculation of confinement and extended supervision for the presumptive minimum for unclassified felonies under this section prior to February 1, 2003 amendments are discussed. State v. Cole, 2003 WI 59,
262 Wis. 2d 167,
663 N.W.2d 700,
02-0681.
973.01 Annotation
Resentencing on convictions that remain intact after one or more counts in a multi-count case is vacated is not always required. When the vacated count does not affect the overall dispositional structure of the original sentence, resentencing on the remaining counts is unnecessary. State v. Church, 2003 WI 74,
262 Wis. 2d 678,
665 N.W.2d 141,
01-3100.
973.01 Annotation
Subs. (2) and (5) prohibit confinement in any facility as a condition of extended supervision. Absent express authority, a trial court cannot order confinement as a condition of extended supervision. State v. Larson, 2003 WI App 235,
268 Wis. 2d 162,
672 N.W.2d 322,
03-0019.
973.01 Annotation
A penalty enhancer under s. 939.62 is not subject to bifurcation, nor is it to be added to the underlying term of imprisonment. State v. Jackson 2004 WI 29,
270 Wis. 2d 113,
676 N.W.2d 872,
02-0947.
973.01 Annotation
Sub. (3m) allows a sentencing court to determine not only whether a defendant is eligible for the challenge incarceration program, but also to set a date of eligibility within the term of confinement in prison. State v. Lehman, 2004 WI App 59, ___ Wis. 2d ___,
677 N.W.2d 644,
03-1269.
973.01 Annotation
Requisite to a prima facie valid sentence is a statement by the trial judge detailing the reasons for selecting the particular sentence imposed. Circuit courts shall: 1) specify the objectives of the sentence on the record and identify the general objectives of greatest importance; 2) describe the facts relevant to those objectives and explain why the particular component parts of the sentence imposed advance the specified objectives; 3) identify the factors that were considered in arriving at the sentence and indicate how those factors fit the objectives and influence the decision. State v. Gallion, 2004 WI 42,
270 Wis. 2d 535,
678 N.W.2d 197,
01-0051.
973.01 Annotation
The sentence imposed shall call for the minimum amount of custody or confinement consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant. Probation should be the disposition unless confinement is necessary to protect the public, the offender needs correctional treatment available only in confinement, or it would unduly depreciate the seriousness of the offense. State v. Gallion, 2004 WI 42,
270 Wis. 2d 535,
678 N.W.2d 197,
01-0051.
973.01 Annotation
The good character of a victim killed as the result of a crime is relevant to sentencing, but the court should not attempt to measure the relative value of the victim's life. Although there may be circumstances in which the court could weigh the positive contributions and worth of the victim in assessing the harm caused by the crime, it does not follow that there is a right to have a court consider that a victim was a terrible burden on society. State v. Gallion, 2004 WI 42,
270 Wis. 2d 535,
678 N.W.2d 197,
01-0051.
973.01 Annotation
A court, after giving consideration to the relevant sentencing factors, may give disproportionate or controlling weight to a single factor. Balancing the factors is for the trial court. Ordering a lengthy term of supervision in order to enable the defendant to pay a sizeable restitution amount did not violate the right to equal protection. State v. Longmire, 2004 WI App 90, ___ Wis. 2d ___,
681 N.W.2d 354,
03-0300.
973.01 Annotation
Truth-In-Sentencing Comes to Wisconsin. Brennan & Latorraca. Wis. Law. June 2000.
973.01 Annotation
Fully Implementing Truth-In-Sentencing. Hammer & Latorraca. Wis. Law. Nov. 2002.
973.013
973.013
Indeterminate sentence; Wisconsin state prisons. 973.013(1)(a)(a) If imprisonment in the Wisconsin state prisons for a term of years is imposed, the court may fix a term less than the prescribed maximum. The form of such sentence shall be substantially as follows: "You are hereby sentenced to the Wisconsin state prisons for an indeterminate term of not more than .... (the maximum as fixed by the court) years."
973.013(1)(b)
(b) Except as provided in
s. 973.01, the sentence shall have the effect of a sentence at hard labor for the maximum term fixed by the court, subject to the power of actual release from confinement by parole by the department or by pardon as provided by law. If a person is sentenced for a definite time for an offense for which the person may be sentenced under this section, the person is in legal effect sentenced as required by this section, said definite time being the maximum period. A defendant convicted of a crime for which the minimum penalty is life shall be sentenced for life.
973.013(2)
(2) Upon the recommendation of the department, the governor may, without the procedure required by
ch. 304, discharge absolutely, or upon such conditions and restrictions and under such limitation as the governor thinks proper, any inmate committed to the Wisconsin state prisons after he or she has served the minimum term of punishment prescribed by law for the offense for which he or she was sentenced, except that if the term was life imprisonment, 5 years must elapse after release on parole or extended supervision before such a recommendation can be made to the governor. The discharge has the effect of an absolute or conditional pardon, respectively.
973.013(3)
(3) Female persons convicted of a felony may be committed to the Taycheedah Correctional Institution unless they are subject to
sub. (3m).
973.013(3m)
(3m) If a person who has not attained the age of 16 years is sentenced to the Wisconsin state prisons, the department shall place the person at a secured juvenile correctional facility or a secured child caring institution, unless the department determines that placement in an institution under
s. 302.01 is appropriate based on the person's prior record of adjustment in a correctional setting, if any; the person's present and potential vocational and educational needs, interests and abilities; the adequacy and suitability of available facilities; the services and procedures available for treatment of the person within the various institutions; the protection of the public; and any other considerations promulgated by the department by rule. The department may not place any person under the age of 18 years in the correctional institution authorized in
s. 301.16 (1n). This subsection does not preclude the department from designating an adult correctional institution, other than the correctional institution authorized in
s. 301.16 (1n), as a reception center for the person and subsequently transferring the person to a secured juvenile correctional facility or a secured child caring institution.
Section 302.11 and
ch. 304 apply to all persons placed in a secured juvenile correctional facility or a secured child caring institution under this subsection.
973.013(4)
(4) If information under
s. 972.15 (2m) has been provided in a presentence investigation report, the court shall consider that information when sentencing the defendant.
973.013 Annotation
The sentencing judge shall state for the record, in the presence of the defendant, the reasons for selecting the particular sentence imposed or, if the sentencing judge considers it in the interest of the defendant not to state reasons in the presence of the defendant, shall prepare a statement for transmission to the reviewing court as part of the record. McCleary v. State,
49 Wis. 2d 263,
182 N.W.2d 512 (1971).
973.013 Annotation
It was not a denial of equal protection to sentence a defendant to 4 years imprisonment, although other persons involved, all minors, received lesser or no punishment. State v. Schilz,
50 Wis. 2d 395,
184 N.W.2d 134 (1971).
973.013 Annotation
An abuse of discretion, as it relates to sentencing procedures, will be found only if there is no rational basis for the imposition of the sentence or the rationale is not articulated in, or inferable from, the record, or if discretion is exercised on the basis of clearly irrelevant or improper factors. Davis v. State,
52 Wis. 2d 697,
190 N.W.2d 890 (1971).
973.013 Annotation
The seriousness of the offense is a proper criterion for imposing a maximum sentence. While warehousing dangerous individuals is not the sole purpose for imposing long prison terms, it is a legitimate factor for a trial court to consider. Bastian v. State,
54 Wis. 2d 240,
194 N.W.2d 687 (1972).
973.013 Annotation
A prison sentence is reduced to reflect days of pretrial incarceration during which the defendant was unable to raise bail because of indigency. Wilkins v. State,
66 Wis. 2d 628,
225 N.W.2d 492 (1975).
973.013 Annotation
A defendant's change in attitude or rehabilitative progress subsequent to sentencing is a factor to be considered in determining parole but is not a proper consideration upon which a trial court might base a reduction of sentence. State v. Wuensch,
69 Wis. 2d 467,
230 N.W.2d 665 (1975).
973.013 Annotation
Although evidence concerning incidents of sexual activity abroad was relevant as to defendant's character and admissible at the sentencing hearing, the trial court abused its discretion by punishing the defendant not only for the crime of which he stood convicted, but for the events that occurred outside Wisconsin, as indicated by the fact that both sentencing hearings were devoted largely to these foreign incidents. Rosado v. State,
70 Wis. 2d 280,
234 N.W.2d 69 (1975).
973.013 Annotation
The trial court exceeded its jurisdiction by specifying conditions of incarceration. State v. Gibbons,
71 Wis. 2d 94,
237 N.W.2d 33 (1976).
973.013 Annotation
A plea bargain agreement by law enforcement officials not to reveal relevant and pertinent information to the sentencing judge was unenforceable as being against public policy. Grant v. State,
73 Wis. 2d 441,
243 N.W.2d 186 (1976).
973.013 Annotation
Chronic offenses of theft by fraud by promising to marry several persons provided a rational basis for a lengthy sentence. Lambert v. State,
73 Wis. 2d 590,
243 N.W.2d 524 (1976).
973.013 Annotation
A sentencing judge does not deny due process by considering pending criminal charges in determining a sentence. The scope of judicial inquiry prior to sentencing is discussed. Handel v. State,
74 Wis. 2d 699,
247 N.W.2d 711 (1976).
973.013 Annotation
A defendant's refusal to name accomplices was properly considered by the sentencing judge. Because the defendant had pleaded guilty to the crime, self-incrimination would not have resulted from the requested cooperation. Holmes v. State,
76 Wis. 2d 259,
251 N.W.2d 56 (1977).
973.013 Annotation
Courts may correct formal or clerical errors or an illegal sentence at any time. Krueger v. State,
86 Wis. 2d 435,
272 N.W.2d 847 (1979).
973.013 Annotation
The double jeopardy clause did not bar prosecution of a charge after it was considered as evidence of character in sentencing the defendant on a prior unrelated conviction. State v. Jackson,
110 Wis. 2d 548,
329 N.W.2d 182 (1983).
973.013 Annotation
Increasing a sentence following the vacation of a bargained for no contest plea did not violate due process. The test for judicial vindictiveness is discussed. State v. Stubbendick,
110 Wis. 2d 693,
329 N.W.2d 399 (1983).
973.013 Annotation
An 80-year sentence for a first-time sexual offender was not an abuse of discretion. State v. Curbello-Rodriguez,
119 Wis. 2d 414,
351 N.W.2d 758 (Ct. App. 1984).
973.013 Annotation
An unambiguous sentence pronounced orally and recorded in the sentencing transcript controls over the written judgment of conviction. State v. Perry,
136 Wis. 2d 92,
401 N.W.2d 748 (1987).
973.013 Annotation
The sentencing court does not abuse its discretion by considering a victim's statements and recommendations. State v. Johnson,
158 Wis. 2d 458,
463 N.W.2d 352 (Ct. App. 1990).
973.013 Annotation
The primary factors to be considered in exercising discretion in sentencing are: 1) the gravity of the offense; 2) the rehabilitative needs of the defendant; and 3) the protection of the public. State v. Paske,
163 Wis. 2d 52,
471 N.W.2d 55 (1991).
973.013 Annotation
Due process does not require the presence of counsel at a presentence investigation interview of the defendant. State v. Perez,
170 Wis. 2d 130,
487 N.W.2d 630 (Ct. App. 1992).
973.013 Annotation
Whether a particular factor will be considered as a mitigating or aggravating factor will depend on the particular defendant and case. State v. Thompson,
172 Wis. 2d 257,
493 N.W.2d 729 (Ct. App. 1992).
973.013 Annotation
The trial court's possible consideration at sentencing of the defendant's culpability in a more serious offense, although the jury convicted on a lesser included offense, was not error. State v. Marhal,
172 Wis. 2d 491,
493 N.W.2d 758 (Ct. App. 1992). See also State v. Bobbitt,
178 Wis. 2d 11,
503 N.W.2d 11 (Ct. App. 1993).
973.013 Annotation
No specific burden of proof is imposed as to read-in offenses that bear upon sentencing; all sentencing is under the standard for judicial discretion. State v. Hubert,
181 Wis. 2d 333,
510 N.W.2d 799 (Ct. App. 1993).
973.013 Annotation
A sentencing court may consider a defendant's religious beliefs and practices only if a reliable nexus exists between the defendant's criminal conduct and those beliefs and practices. State v. Fuerst,
181 Wis. 2d 903,
512 N.W.2d 243 (Ct. App. 1994).
973.013 Annotation
If an oral pronouncement is ambiguous, it is proper to look to the written judgment to ascertain a court's intent in sentencing. An omission in the oral pronouncement can create an ambiguity. State v. Lipke,
186 Wis. 2d 358,
521 N.W.2d 444 (Ct. App. 1994).
973.013 Annotation
Under s. 973.013 [now sub. (1)], life imprisonment without parole is not an option. State v. Setagord,
187 Wis. 2d 339,
523 N.W.2d 124 (Ct. App. 1994).
973.013 Annotation
A trial court in exercising sentencing discretion is not prohibited from entertaining general predispositions based on experience, but the judge's predispositions may never be so specific as to ignore the particular circumstances of the individual offender. State v. Ogden,
199 Wis. 2d 566,
544 N.W.2d 574 (1996),
94-1485.
973.013 Annotation
A defendant who requests resentencing must show that specific information was inaccurate and that the court relied on it. When facts stated in a presentence report are not challenged at sentencing, the sentencing judge may appropriately consider them. State v. Mosley,
201 Wis. 2d 36,
547 N.W.2d 806 (Ct. App. 1996),
95-1340.
973.013 Annotation
A court must consider 3 primary factors in exercising discretion in sentencing: 1) the gravity of the offense; 2) the character of the offender; and 3) the need to protect the public. Remorse is an additional factor that may be considered. State v. Rodgers,
203 Wis. 2d 83,
552 N.W.2d 123 (Ct. App. 1996). For enumeration of other additional factors that may be considered, see State v. Barnes,
203 Wis. 2d 132,
552 N.W.2d 857 (Ct. App. 1996).
973.013 Annotation
A defendant is automatically prejudiced when the prosecutor materially and substantially breaches a plea agreement. New sentencing is required. State v. Smith,
207 Wis. 2d 259,
558 N.W.2d 379 (1997).
973.013 Annotation
When resentencing a defendant, a court should consider all information relevant about a defendant, including information not existing or not known when sentence was first passed. State v. Carter,
208 Wis. 2d 142,
560 N.W.2d 256 (1997).
973.013 Annotation
A marital relationship between a case's prosecutor and the presentence report writer was sufficient to draw the objectivity of the report into question. It was error not to strike the report. State v. Suchocki,
208 Wis. 2d 509,
561 N.W.2d 332 (Ct. App. 1997).
973.013 Annotation
Evidence of unproven offenses involving the defendant my be considered in sentencing decisions, as the court must consider whether the crime is an isolated act or part of a pattern of conduct. State v. Fisher,
211 Wis. 2d 664,
565 N.W.2d 565 (Ct. App. 1997).
973.013 Annotation
A defendant's argument that his sentence was excessive in relation to other sentences for similar crimes committed in the same county was without merit. There is no requirement that persons convicted of similar offenses must receive similar sentences. State v. Lechner,
217 Wis. 2d 392,
576 N.W.2d 912 (1998).
973.013 Annotation
That a conviction followed an Alford plea did not prevent requiring the defendant, as a condition, to complete a treatment program that required acknowledging responsibility for the crime which resulted in the conviction. The imposition of the condition did not violate the defendant's due process rights. There is nothing inherent in an Alford plea that gives a defendant any rights as to punishment. State ex rel. Warren v. Schwarz,
219 Wis. 2d 616,
579 N.W.2d 698 (1998).
973.013 Annotation
When a victim's criminal record supports a defendant's version of a crime, the gravity of which crime is a sentencing factor, the criminal record should be admitted as evidence at the defendant's sentencing hearing. State v. Spears,
227 Wis. 2d 495,
596 N.W.2d 375 (1999).
973.013 Annotation
Proper sentencing discretion can exist without delineation of sentencing factors; what is required is consideration of the sentencing factors (see the note to Rodgers). When the same judge presides at sentencing after probation revocation and the original sentencing, the judge does not have to restate the reasons supporting the original sentencing, which is implicitly adopted. State v. Wegner, 2000 WI App 231,
239 Wis. 2d 96,
619 N.W.2d 289.
973.013 Annotation
It is entirely reasonable that a competency examination designed to address a defendant's ability to understand the proceedings and assist counsel may also address issues of future dangerousness, which a court may reasonably consider when gauging the need for public protection in setting a sentence. State v. Slagoski, 2001 WI App 112,
244 Wis. 2d 49,
629 N.W.2d 50.
973.013 Annotation
Spears does not stand for the proposition that a defendant may, at sentencing, present any and all evidence that he or she wishes to present. State v. Robinson, 2001 WI App 127,
246 Wis. 2d 180,
629 N.W.2d 810.
973.013 Annotation
When a plea agreement indicates that a recommendation was to be for concurrent sentences and consecutive sentences were recommended, without correction at the sentencing hearing, there is a material and substantial breach of the agreement. Absent an objection, the right to directly appeal is waived and the defendant is entitled to a remedy for the breach only if there was ineffective assistance of counsel, the remedy for which is allowing the withdrawal of the plea or specific performance of the agreement. State v. Howard, 2001 WI App 137,
246 Wis. 2d 475,
630 N.W.2d 244.
973.013 Annotation
The exercise of sentencing discretion requires the court to exercise its discretion to create a sentence within the range provided by the legislature that reflects the circumstances of the situation and the particular characteristics of the offender. The court must consider the gravity of the offense, the offender's character and the public's need for protection. The weight given to any factor is left to the trial court's discretion. State v. Steele, 2001 WI App 160,
246 Wis. 2d 744,
632 N.W.2d 112.
973.013 Annotation
In sentencing after probation revocation, if the judge did not preside at the original sentencing, the judge must be able to rely upon the entire record, including comments at the first sentencing. When the record at the second sentencing reflected no recognition by the second judge of trial testimony, the presentence investigation report, or the trial judge's comments on the severity of the offense, the sentence could not stand. State v. Reynolds, 2002 WI App 15,
249 Wis. 2d 798,
640 N.W.2d 140.
973.013 Annotation
A court's correction of an invalid sentence by increasing the punishment does not constitute double jeopardy; the initial sentence being invalid, the second sentence is the only valid sentence imposed. An increased sentence is permissible at resentencing only when it is based upon a desire to implement the original dispositional scheme from the first sentencing and when the initial conviction and sentence are invalid, the resentencing court has no new information or newly known information, and the resentencing court seeks to impose a greater sentence. State v. Helm, 2002 WI App 154,
256 Wis. 2d 285,
647 N.W.2d 405.
973.013 Annotation
In fixing a sentence within statutory limits, the judge may consider the defendant's false testimony observed by the judge during trial. United States v. Grayson,
438 U.S. 41 (1978).
973.013 Annotation
Appellate sentence review. 1976 WLR 655. (1983).
973.0135
973.0135
Sentence for certain serious felonies; parole eligibility determination. 973.0135(1)(a)
(a) "Prior offender" means a person who meets all of the following conditions:
973.0135(1)(a)1.
1. The person has been convicted of a serious felony on at least one separate occasion at any time preceding the serious felony for which he or she is being sentenced.
973.0135(1)(a)2.
2. The person's conviction under
subd. 1. remains of record and unreversed.
973.0135(1)(a)3.
3. As a result of the conviction under
subd. 1., the person was sentenced to more than one year of imprisonment.
973.0135(1)(b)2.
2. Any felony under s.
940.09 (1), 1999 stats., s.
943.23 (1m) or
(1r), 1999 stats., s.
948.35 (1) (b) or
(c), 1999 stats., or s.
948.36, 1999 stats.,
s. 940.01,
940.02,
940.03,
940.05,
940.09 (1c),
940.16,
940.19 (5),
940.195 (5),
940.21,
940.225 (1) or
(2),
940.305,
940.31,
941.327 (2) (b) 4.,
943.02,
943.10 (2),
943.23 (1g),
943.32 (2),
946.43 (1m),
948.02 (1) or
(2),
948.025,
948.03 (2) (a) or
(c),
948.05,
948.06,
948.07,
948.075,
948.08, or
948.30 (2).
973.0135(1)(b)4.
4. A crime at any time under federal law or the law of any other state or, prior to April 21, 1994, under the law of this state that is comparable to a crime specified in
subd. 1.,
2. or
3.
973.0135(2)
(2) Except as provided in
sub. (3), when a court sentences a prior offender to imprisonment in a state prison for a serious felony committed on or after April 21, 1994, but before December 31, 1999, the court shall make a parole eligibility determination regarding the person and choose one of the following options:
