2023 Wisconsin Statutes & Annotations › Chapter 973 - Sentencing. › 973.09 - Probation.

973.09
Probation.
(1)
(a)
Except as provided in par. (c) or if probation is prohibited for a particular offense by statute, if a person is convicted of a crime, the court, by order, may withhold sentence or impose sentence under s. 973.15 and stay its execution, and in either case place the person on probation to the department for a stated period, stating in the order the reasons therefor. The court may impose any conditions which appear to be reasonable and appropriate. The period of probation may be made consecutive to a sentence on a different charge, whether imposed at the same time or previously. If the court imposes a term of probation under sub. (2) (a) 1. or 2. or (b) 2., it shall place its reasons for doing so on the record.
(b)
If the court places the person on probation, the court shall order the person to pay restitution under s. 973.20, unless the court finds there is substantial reason not to order restitution as a condition of probation. If the court does not require restitution to be paid to a victim, the court shall state its reason on the record. If the court does require restitution, it shall notify the department of justice of its decision if the victim may be eligible for compensation under subch. I of ch. 949.
(c)
When a person is convicted of any crime which is punishable by life imprisonment, the court shall not place the person on probation.
(d)
If a person is convicted of an offense that provides a mandatory or presumptive minimum period of one year or less of imprisonment, a court may place the person on probation under par. (a) if the court requires, as a condition of probation, that the person be confined under sub. (4) for at least that mandatory or presumptive minimum period. The person is eligible to earn good time credit calculated under s. 302.43 regarding the period of confinement.
(e)
The court may impose a sentence under s. 973.032, stay its execution and place the person on probation. A court may not provide that a condition of any probation involves participation in the intensive sanctions program.
(1d)
If a person is placed on probation for a felony or for any violation of ch. 940, 948, or 961, the person, his or her residence, and any property under his or her control may be searched by a law enforcement officer at any time during his or her period of supervision if the officer reasonably suspects that the person is committing, is about to commit, or has committed a crime or a violation of a condition of probation. Any search conducted pursuant to this subsection shall be conducted in a reasonable manner and may not be arbitrary, capricious, or harassing. A law enforcement officer who conducts a search pursuant to this subsection shall, as soon as practicable after the search, notify the department of corrections.
(1g)
If the court places the person on probation, the court may require, upon consideration of the factors specified in s. 973.20 (13) (a) 2. to 5., that the probationer reimburse the county or the state, as applicable, for any costs for legal representation to the county or the state for the defense of the case. In order to receive this reimbursement, the county or the state public defender shall provide a statement of its costs of legal representation to the defendant and court within the time period set by the court.
(2)
The original term of probation shall be:
(a)
1.
Except as provided in subd. 2., for any of the following misdemeanors, not less than 6 months nor more than 2 years:
a.
A misdemeanor that the defendant committed while possessing a firearm.
b.
A misdemeanor that was an act of domestic abuse, as defined in s. 968.075 (1) (a).
c.
A misdemeanor under s. 940.225 (3m) or ch. 948.
d.
A misdemeanor under s. 23.33 (4c) or (4p) (e), 23.335 (12) (a), (b), or (h), 30.681, 30.684 (5), 350.101, 350.104 (5), or 350.17 or a misdemeanor under s. 346.63 to which s. 973.09 (1) (d) applies.
1m.
Except as provided in subd. 2., for Class A misdemeanors not covered by subd. 1., not less than 6 months nor more than one year.
1r.
Except as provided in subd. 2., for misdemeanors not covered by subd. 1. or 1m., not more than one year.
2.
If the probationer is convicted of not less than 2 nor more than 4 misdemeanors at the same time, the maximum original term of probation may be increased by one year. If the probationer is convicted of 5 or more misdemeanors at the same time, the maximum original term of probation may be increased by 2 years.
(ar)
Notwithstanding par. (a) 1r., and except as provided in par. (a) 2., for a violation punishable under s. 813.12 (8) or 813.125 (7), not less than 6 months or more than the period of the injunction issued under s. 813.12 or 813.125.
(b)
1.
Except as provided in subd. 2., for felonies, not less than one year nor more than either the maximum term of confinement in prison for the crime or 3 years, whichever is greater.
2.
If the probationer is convicted of 2 or more crimes, including at least one felony, at the same time, the maximum original term of probation may be increased by one year for each felony conviction.
(2m)
If a court imposes a term of probation in excess of the maximum authorized by statute, the excess is void and the term of probation is valid only to the extent of the maximum term authorized by statute. The term is commuted without further proceedings.
(3)
(a)
Prior to the expiration of any probation period, the court, for cause and by order, may extend probation for a stated period or modify the terms and conditions thereof.
(b)
The department shall notify the sentencing court, any person to whom unpaid restitution is owed and the district attorney of the status of the ordered restitution payments unpaid at least 90 days before the probation expiration date. If payment as ordered has not been made, the court shall hold a probation review hearing prior to the expiration date, unless the hearing is voluntarily waived by the probationer with the knowledge that waiver may result in an extension of the probation period or in a revocation of probation. If the court does not extend probation, it shall issue a judgment for the unpaid restitution and direct the clerk of circuit court to file and enter the judgment in the judgment and lien docket, without fee, unless it finds that the victim has already recovered a judgment against the probationer for the damages covered by the restitution order. If the court issues a judgment for the unpaid restitution, the court shall send to the person at his or her last-known address written notification that a civil judgment has been issued for the unpaid restitution. The judgment has the same force and effect as judgments entered under s. 806.10.
(bg)
1.
At least 90 days before the expiration date of a probationer's period of probation, the department shall notify the sentencing court and district attorney that a probationer owes an unpaid surcharge imposed under s. 973.045. Upon receiving notice from the department, the court shall schedule a probation review hearing to be held before the expiration date of the period of probation unless the probationer either pays the unpaid surcharge before the scheduled hearing date or voluntarily waives the hearing. A waiver of a probation review hearing under this paragraph must include an acknowledgment by the probationer that waiver may result in an extension of the probation period, a modification of the terms and conditions of probation, or a revocation of probation.
2.
If the court does not extend probation, the court shall issue a judgment for the unpaid surcharge and direct the clerk of circuit court to file and enter the judgment in the judgment and lien docket. The judgment has the same force and effect as judgments entered under s. 806.10.
3.
At a probation review hearing scheduled under subd. 1., the department has the burden of proving that the probationer owes an unpaid surcharge imposed under s. 973.045 and the amount of the unpaid surcharge. If the department proves by a preponderance of the evidence that the probationer owes an unpaid surcharge under s. 973.045, the court may, by order, extend the period of probation for a stated period or modify the terms and conditions of probation.
4.
If the court does not extend or modify the terms of probation under subd. 3., the court shall issue a judgment for the unpaid surcharge and direct the clerk of circuit court to file and enter the judgment in the judgment and lien docket without fee. If the court issues a judgment for the unpaid surcharge, the court shall send to the department a written notification that a civil judgment has been issued for the unpaid fees. The judgment has the same force and effect as judgments entered under s. 806.10.
(bm)
1.
At least 90 days before the expiration date of a probationer's period of probation, the department may notify the sentencing court and the district attorney that a probationer owes unpaid fees to the department under s. 304.074.
2.
Upon receiving notice from the department under subd. 1., the court shall schedule a probation review hearing to be held before the expiration date of the period of probation unless the probationer either pays the fees before the scheduled hearing date or voluntarily waives the hearing. A waiver of a probation review hearing under this subdivision shall include an acknowledgement by the probationer that waiver may result in an extension of the probation period, a modification of the terms and conditions of probation or a revocation of probation.
3.
At a probation review hearing under subd. 2., the department has the burden of proving that the probationer owes unpaid fees under s. 304.074 and the amount of the unpaid fees. If the department proves by a preponderance of the evidence that the probationer owes unpaid fees under s. 304.074, the court may, by order, extend the period of probation for a stated period or modify the terms and conditions of probation.
4.
If the court does not extend or modify the terms of probation under subd. 3., it shall issue a judgment for the unpaid fees and direct the clerk of circuit court to file and enter the judgment in the judgment and lien docket, without fee. If the court issues a judgment for the unpaid fees, the court shall send to the department a written notification that a civil judgment has been issued for the unpaid fees. The judgment has the same force and effect as judgments entered under s. 806.10.
(c)
Any of the following may constitute cause for the extension of probation:
1.
The probationer has not made a good faith effort to discharge court-ordered payment obligations or to pay fees owed under s. 304.074.
2.
The probationer is not presently able to make required restitution payments and the probationer and the person to whom restitution is owed consent to the performance of community service work under sub. (7m) in satisfaction of restitution ordered for that person, for which an extended period of probation is required.
3.
The probationer stipulates to the extension of supervision and the court finds that extension would serve the purposes for which probation was imposed.
(d)
The court may modify a person's period of probation and discharge the person from probation if all of the following apply:
1.
The department petitions the court to discharge the person from probation.
2.
The probationer has completed 50 percent of his or her period of probation.
3.
The probationer has satisfied all conditions of probation that were set by the sentencing court.
4.
The probationer has satisfied all rules and conditions of probation that were set by the department.
5.
The probationer has fulfilled all financial obligations to his or her victims, the court, and the department, including the payment of any fine, forfeiture, fee or surcharge, or order of restitution.
6.
The probationer is not required to register under s. 301.45.
7.
The probationer is on probation for a violation other than a crime specified in s. 941.29 (1g) (a); a crime specified in s. 941.29 (1g) (b), not including s. 951.02, 951.08, 951.09, or 951.095; or a crime under s. 948.02 (3), 948.055, 948.075, or 948.095.
(3m)
(a)
In this subsection, “victim" has the meaning given in s. 950.02 (4).
(b)
When a court receives a petition under sub. (3) (d), the clerk of the circuit court shall send a notice of hearing to the victim of the crime committed by the probationer, if the victim has submitted a card under par. (c) requesting notification. The notice shall inform the victim that he or she may appear at any hearing scheduled under sub. (3) (d) and shall inform the victim of the manner in which he or she may provide a statement concerning the modification of the probationer's term of probation. The clerk of the circuit court shall make a reasonable attempt to send the notice of hearing to the last-known address of the victim, postmarked at least 10 days before the date of the hearing.
(c)
The director of state courts shall design and prepare cards for a victim to send to the clerk of the circuit court for the county in which the probationer was convicted and sentenced. The cards shall have space for a victim to provide his or her name and address, the name of the applicable probationer, and any other information that the director of state courts determines is necessary. The director of state courts shall provide the cards, without charge, to clerks of circuit court. Clerks of circuit court shall provide the cards, without charge, to victims. Victims may send completed cards to the clerk of the circuit court for the county in which the probationer was convicted and sentenced. All court records or portions of records that relate to mailing addresses of victims are not subject to inspection or copying under s. 19.35 (1).
(4)
(a)
The court may also require as a condition of probation that the probationer be confined during such period of the term of probation as the court prescribes, but not to exceed one year. The court may grant the privilege of leaving the county jail, Huber facility, work camp, or tribal jail during the hours or periods of employment or other activity under s. 303.08 (1) while confined under this subsection. The court may specify the necessary and reasonable hours or periods during which the probationer may leave the jail, Huber facility, work camp, or tribal jail or the court may delegate that authority to the sheriff. In those counties without a Huber facility under s. 303.09, a work camp under s. 303.10, or an agreement under s. 302.445, the probationer shall be confined in the county jail. In those counties with a Huber facility under s. 303.09, the sheriff shall determine whether confinement under this subsection is to be in that facility or in the county jail. In those counties with a work camp under s. 303.10, the sheriff shall determine whether confinement is to be in the work camp or the county jail. The sheriff may transfer persons confined under this subsection between a Huber facility or a work camp and the county jail. In those counties with an agreement under s. 302.445, the sheriff shall determine whether a person who is confined under this subsection but who is not subject to an order under par. (b) is to be confined in the tribal jail or the county jail, unless otherwise provided under the agreement. In those counties, the sheriff may transfer persons confined under this subsection between a tribal jail and a county jail, unless otherwise provided under the agreement.
(b)
With the consent of the department and when recommended in the presentence investigation, the court may order that a felony offender subject to this subsection be confined in a facility located in the city of Milwaukee under s. 301.13 or 301.16 (1q), for the purpose of allowing the offender to complete an alcohol and other drug abuse treatment program.
(c)
While subject to this subsection, the probationer is subject to s. 303.08 (1), (3) to (6), (8) to (12), and (14) or to s. 303.10, whichever is applicable, to all the rules of the facility to which the probationer is confined, and to the discipline of the department, if confined to a facility under par. (b), or the sheriff.
(4m)
The department shall inform each probationer who is disqualified from voting under s. 6.03 (1) (b) that he or she may not vote in any election until his or her civil rights are restored. The department shall use the form designed under s. 301.03 (3a) to inform the probationer, and the probationer and a witness shall sign the form.
(5)
When the period of probation for a probationer has expired, the probationer shall be discharged from probation and the department shall do all of the following:
(a)
If the probationer was placed on probation for a felony, issue the probationer one of the following:
1.
A certificate of discharge from probation for the felony for which he or she was placed on probation if, at the time of discharge, the probationer is on probation or parole for another felony.
2.
A certificate of final discharge if, at the time of discharge, the probationer is not on probation or parole for another felony. A certificate of final discharge under this subdivision shall list the civil rights which have been restored to the probationer and the civil rights which have not been restored to the probationer.
(b)
If the probationer was placed on probation for a misdemeanor, notify the probationer that his or her period of probation has expired.
(c)
In all cases, notify the court that placed the probationer on probation that the period of probation has expired.
(7m)
(a)
Except as provided in s. 943.017 (3), the court may require as a condition of probation that the probationer perform community service work for a public agency or a nonprofit charitable organization. The number of hours of work required may not exceed what would be reasonable considering the seriousness of the offense and any other offense which is read into the record at the time of conviction. An order may only apply if agreed to by the probationer and the organization or agency. The court shall ensure that the probationer is provided a written statement of the terms of the community service order and that the community service order is monitored. If the court requires the conditions provided in this subsection and sub. (4), the probationer reduces the period of confinement under sub. (4) at a rate of one day for each 3 days of work performed. A day of work equals 8 hours of work performed.
(b)
Any organization or agency acting in good faith to which a probationer is assigned pursuant to an order under this subsection has immunity from any civil liability in excess of $25,000 for acts or omissions by or impacting on the probationer.
History:  1971 c. 298; 1979 c. 119, 189, 238, 355, 356; 1981 c. 50, 88, 326, 352, 391; 1983 a. 27, 104, 254, 346, 519, 538; 1985 a. 150; 1987 a. 347, 398, 403, 412; 1989 a. 31, 121, 188; 1991 a. 39; 1993 a. 48, 486; 1995 a. 24, 224, 281; 1997 a. 27, 41, 289; 1999 a. 9, 58, 69, 186; 2001 a. 16, 104, 109; 2003 a. 33, 121, 139, 141; 2005 a. 25, 149, 451; 2007 a. 20, 84; 2009 a. 28, 100; 2011 a. 38, 266; 2013 a. 20, 79; 2015 a. 170, 371; 2021 a. 227.
Judicial Council Note, 1981: A cross-reference to s. 973.15 has been inserted to clarify that the provisions of that statute govern the imposition of sentence even though the court stays execution of the sentence under this statute. [Bill 341-A]
Judicial Council Note, 1987: Sub. (1g) is amended to require the court to consider the defendant's ability to pay when ordering reimbursement of the costs of legal representation.
Sub. (3) (c) specifies grounds for extending probation. The availability of a civil judgment for unpaid restitution enforceable by the victim under s. 973.20 (1), stats., substantially reduces the necessity of extending probation solely for the purpose of enforcing court-ordered payments, a practice of questionable cost-effectiveness. See legislative audit bureau report No. 85-10, April 15, 1985, at 17-18. Probation may, however, be extended upon stipulation of the defendant, to enforce community service in satisfaction of restitution, or when the probationer has not made a good faith effort to make restitution or other payments. Huggett v. State, 83 Wis. 2d 790, 803 (1978). [87 Act 398]
The terminology of work-release under sub. (4) and Huber law privileges under s. 56.08 [now s. 303.08] cannot be used interchangeably without the danger of an inappropriate sentence. Yingling v. State, 73 Wis. 2d 438, 243 N.W.2d 420 (1976).
Claims of credit for pretrial or preconviction incarceration may be made only as to sentences imposed, and not to periods of confinement during nonworking hours imposed as a condition of probation under sub. (4). Full confinement for one year as a condition of probation is not authorized under sub. (4). State v. Gloudemans, 73 Wis. 2d 514, 243 N.W.2d 220 (1976).
A probation condition that the probationer not contact her codefendant fiance was a permissible infringement of her constitutional rights because the condition was reasonably related to rehabilitation and was not overly broad. Edwards v. State, 74 Wis. 2d 79, 246 N.W.2d 109 (1976).
Failure to make restitution is not cause for extending probation under sub. (3) if the probationer demonstrates good faith effort to pay but lacks the capacity to do so during probation. Huggett v. State, 83 Wis. 2d 790, 266 N.W.2d 403 (1978).
An order to pay restitution, in an amount to be determined later, authorized collection of funds from the defendant. Thieme v. State, 96 Wis. 2d 98, 291 N.W.2d 474 (1980).
Remand for resentencing was the proper procedure when the trial court improperly imposed a period of probation to run concurrently with a period of parole. State v. Givens, 102 Wis. 2d 476, 307 N.W.2d 178 (1981).
Issuance of a warrant during a probationary term tolls the running of the term. State ex rel. Cox v. DHSS, 105 Wis. 2d 378, 314 N.W.2d 148 (Ct. App. 1981).
In setting restitution, the court must consider the probationer's resources and future ability to pay. State v. Pope, 107 Wis. 2d 726, 321 N.W.2d 359 (Ct. App. 1982).
There was a denial of due process in revoking probation without notice of the total extent and nature of the alleged violations of probation. State ex rel. Thompson v. Riveland, 109 Wis. 2d 580, 326 N.W.2d 768 (1982).
Reimposition of a sentence after a defendant had been placed on probation, absent violation of a probation condition, violated the double jeopardy clause. State v. Dean, 111 Wis. 2d 361, 330 N.W.2d 630 (Ct. App. 1983).
The court erred in imposing consecutive terms of probation. Increased punishment on resentencing did not violate double jeopardy protections. State v. Pierce, 117 Wis. 2d 83, 342 N.W.2d 776 (Ct. App. 1983). See also State v. Gereaux, 114 Wis. 2d 110, 338 N.W.2d 118 (Ct. App. 1983).
When probation was conditioned on the defendant's voluntary commitment to a mental hospital, but the hospital refused admittance, the court properly modified the original sentence by imposing a new sentence of three years' imprisonment. Double jeopardy was not violated. State v. Sepulveda, 120 Wis. 2d 231, 353 N.W.2d 790 (1984).
A court may not assess the cost of a special prosecutor as a condition of probation. State v. Amato, 126 Wis. 2d 212, 376 N.W.2d 75 (Ct. App. 1985).
A court may order a defendant to reimburse the police for funds used for a drug purchase that resulted in the conviction. State v. Connelly, 143 Wis. 2d 500, 421 N.W.2d 859 (Ct. App. 1988).
A lack of counsel at a probation revocation hearing does not deny the probationer's constitutional rights if the probationer does not face the loss of liberty. State v. Hardwick, 144 Wis. 2d 54, 422 N.W.2d 922 (Ct. App. 1988).
Sub. (1) (b) does not restrict a court's authority to condition probation on any reasonable and appropriate requirement under sub. (1) (a). State v. Heyn, 155 Wis. 2d 621, 456 N.W.2d 157 (1990).
Sub. (3) (a) authorizes a court to modify all conditions of probation established for a specific probationer, including those imposed by the corrections department. State ex rel. Taylor v. Linse, 161 Wis. 2d 719, 469 N.W.2d 201 (Ct. App. 1991).
A plea agreement to amend a judgment of conviction upon successful completion of probation is not authorized by statute. State v. Hayes, 167 Wis. 2d 423, 481 N.W.2d 699 (Ct. App. 1992).
Probationers at a hearing to modify probation are entitled: 1) to notice of the hearing and the reasons for the requested change; 2) to be present; 3) to cross-examine and present witnesses; 4) to have conditions modified based on correct information; and 5) to counsel, if jail confinement is possible. State v. Hayes, 173 Wis. 2d 439, 496 N.W.2d 645 (Ct. App. 1992).
Requiring a convicted defendant to deposit money for possible future counselling costs of victims was impermissible. State v. Handley, 173 Wis. 2d 838, 496 N.W.2d 725 (Ct. App. 1993).
Requiring a defendant convicted of sexual assault to pay a victim's costs of tuition to attend another school to avoid harassment that arose after the assault was a reasonable condition of probation. State v. Brown, 174 Wis. 2d 550, 497 N.W.2d 463 (Ct. App. 1993).
A condition of probation not related to the underlying conviction but related to prior convictions was reasonable and appropriate. State v. Miller, 175 Wis. 2d 204, 499 N.W.2d 215 (Ct. App. 1993).
The notification provisions of sub. (3) apply only in the case of probation extension proceedings, not revocations. Bartus v. DHSS, 176 Wis. 2d 1063, 501 N.W.2d 419 (1993).
Sub. (2) (a) applies to probation for misdemeanors and sub. (2) (b) to felonies; sub. (2) (b) 2. does not authorize increasing probation for a misdemeanor if the defendant is convicted of a felony at the same time. State v. Reagles, 177 Wis. 2d 168, 501 N.W.2d 861 (Ct. App. 1993).
A forced confession as a condition of probation does not violate the right against self-incrimination. The constitution protects against the use of confessions in subsequent criminal prosecutions but does not protect against the use of such statements in a revocation proceeding. State v. Carrizales, 191 Wis. 2d 85, 528 N.W.2d 29 (Ct. App. 1995).
While 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 that time against probationary confinement. State v. Avila, 192 Wis. 2d 870, 532 N.W.2d 423 (Ct. App. 1995).
A jail term probationer eligible for good time credit under sub. (1) (d) may not be denied the possibility of earning good time as a sentence condition. State v. McClinton, 195 Wis. 2d 344, 536 N.W.2d 413 (Ct. App. 1995), 94-0747.
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.
A court was authorized to order a defendant to pay the cost of DNA testing by a private laboratory as a condition of probation. State v. Beiersdorf, 208 Wis. 2d 492, 561 N.W.2d 749 (Ct. App. 1997), 95-1234.
A condition of probation placed on a sex offender that he not engage in a sexual relationship without first discussing it with his agent and obtaining his agent's approval did not unreasonably restrict the probationer's constitutional rights of privacy. Krebs v. Schwartz, 212 Wis. 2d 127, 568 N.W.2d 26 (Ct. App. 1997), 96-2596.
An unfulfilled condition of probation does not automatically extend the probation period; an extension must be obtained. If the probation has not been stayed and the probation period has been served, the probationer is entitled to discharge even in the face of an unfulfilled condition of probation; at that point the trial court loses jurisdiction. State v. Stefanovic, 215 Wis. 2d 310, 572 N.W.2d 140 (Ct. App. 1997), 97-1791.
A conviction following an Alford, 400 U.S. 25 (1970), plea of no contest under which the defendant does not admit guilt, does not prevent imposing as a condition of probation that the defendant complete a treatment program that requires acknowledging responsibility for the crime that resulted in the conviction. The imposition of the condition does not violate the defendant's due process rights. State ex rel. Warren v. Schwarz, 219 Wis. 2d 615, 579 N.W.2d 698 (1998), 96-2441.
When a court orders probation under sub. (1) (d), it lacks authority to order monitored home detention in lieu of confinement under sub. (4). State v. Eastman, 220 Wis. 2d 330, 582 N.W.2d 749 (Ct. App. 1998), 97-2173.
The 90-day notice requirement in sub. (3) (b) is directory, not mandatory. The extension of probation for the sole purpose of collecting a debt, when the record contained substantial reasons not to extend, was an abuse of discretion. State v. Olson, 222 Wis. 2d 283, 588 N.W.2d 256 (Ct. App. 1998), 98-0201.
Sub. (3) (a) allows circuit courts to modify conditions of probation at any time before the period of probation expires, even before the period of probation begins. State v. Gray, 225 Wis. 2d 39, 590 N.W.2d 918 (1999), 96-3363.
The court has broad discretion to fashion appropriate conditions of probation in each individual case. The validity of conditions of probation are tested by how well they serve the goals of rehabilitation and protection of the public. State v. Simonetto, 2000 WI App 17, 232 Wis. 2d 315, 606 N.W.2d 275, 99-0486.
A probationer has the right to refuse probation not only when it is first granted but at any time while serving it. State v. McCready, 2000 WI App 68, 234 Wis. 2d 110, 608 N.W.2d 762, 99-1822.
The trial court exceeded its authority in authorizing a probation agent to decide whether to require the defendant to serve three months in jail that the court ordered as a part of probation and then stayed. State v. Fearing, 2000 WI App 229, 239 Wis. 2d 105, 619 N.W.2d 115, 99-2849.
Generally, neither probation or imprisonment as a condition of probation is considered to be a sentence. As such, a person confined as a condition of probation cannot earn good time. State v. Fearing, 2000 WI App 229, 239 Wis. 2d 105, 619 N.W.2d 115, 99-2849.
Corroboration of a confession is not required for the confession to be used as the basis of a revocation of probation. The appropriate test for admission of the confession is that it must carry sufficient indicia of reliability that the fact finder can rely upon to support the conclusion that revocation is appropriate and necessary. State ex rel. Washington v. Schwarz, 2000 WI App 235, 239 Wis. 2d 443, 620 N.W.2d 414, 00-0004.
Sentencing a defendant to consecutive terms of probation is not authorized. State v. Schwebke, 2001 WI App 99, 242 Wis. 2d 585, 627 N.W.2d 213, 99-3204.
Affirmed on other grounds. 2002 WI 55, 253 Wis. 2d 1, 644 N.W.2d 666, 99-3204.
There is no statutory authority to order, as a condition of probation, payment of restitution obligations in a separate criminal case. State v. Torpen, 2001 WI App 273, 248 Wis. 2d 951, 637 N.W.2d 481, 01-0182.
Probation is permitted under sub. (1) (d) for fourth and subsequent operating while intoxicated violations as long as the probation requires confinement for at least the mandatory minimum time period under s. 346.65. State v. Eckola, 2001 WI App 295, 249 Wis. 2d 276, 638 N.W.2d 903, 01-1044.
Revocation hearing examiners must specifically find that good cause exists for not allowing confrontation of adverse witnesses, but failure to do so does not require automatic reversal. Good cause should generally be based upon a balancing of the need of the probationer in cross-examining the witness and the interest of the state in denying confrontation, including consideration of the reliability of the evidence and the difficulty, expense, or other barriers to obtaining live testimony. State ex rel. Simpson v. Schwarz, 2002 WI App 7, 250 Wis. 2d 214, 640 N.W.2d 527, 01-0008.
The right against self-incrimination survives conviction and remains active while a direct appeal is pending. A probationer may be compelled to answer self-incriminating questions from a probation or parole agent, or suffer revocation for refusing to do so, only if there is a grant of immunity rendering the testimony inadmissible in a criminal prosecution. State ex rel. Tate v. Schwarz, 2002 WI 127, 257 Wis. 2d 40, 654 N.W.2d 438, 00-1635.
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 is not unconstitutionally vague. The definition of “dating relationship" in s. 813.12 (1) (ag) 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.
It is not required that a defendant's rejection of probation be clear and unequivocal. A court's focus should be on whether a defendant communicates the intent to refuse probation rather than on the defendant's choice of words. State v. Pote, 2003 WI App 31, 260 Wis. 2d 426, 659 N.W.2d 82, 02-0670.
Section 302.425 allows the sheriff to place persons on home monitoring when they are given jail time as a probation condition. A circuit court may not prohibit the sheriff from ordering home monitoring for a probationer ordered to serve jail time as a probation condition. By precluding the sheriff from releasing the probation on home monitoring, the trial court substantially interfered with the sheriff's power in violation of the separation of powers doctrine. State v. Schell, 2003 WI App 78, 261 Wis. 2d 841, 661 N.W.2d 503.
Sex-offender registration as a condition of bail-jumping probation was not authorized by sub. (1) (a). Bail jumping is not one of the offenses enumerated in the sex-offender registration statutes, s. 301.45 or 973.048, that permit or require registration, and read-in, but dismissed, sexual assault charges do not bring a case within s. 973.048. State v. Martel, 2003 WI 70, 262 Wis. 2d 483, 664 N.W.2d 69, 02-1599.
A trial court has the discretionary authority to stay a probationer's conditional jail time while the probationer is hospitalized. When the trial court chooses to stay confinement time, the probationer is not a prisoner and is not entitled to credit against such confinement time because the probationer could not be charged with escape. State v. Edwards, 2003 WI App 221, 267 Wis. 2d 491, 671 N.W.2d 371, 03-0790.
An agreement that provided that following a plea of no contest, the defendant would have the opportunity prior to sentencing to procure and return stolen items, and if so the state would amend the charge to a lesser offense and the sentencing would proceed accordingly, was not invalid under Hayes, 167 Wis. 2d 423 (1992). The concerns of the Hayes court regarding the limitations of the probation statute and the trial court's lack of authority to amend a judgment after completion of a sentence were not implicated. State v. Cash, 2004 WI App 63, 271 Wis. 2d 451, 677 N.W.2d 709, 03-1614.
A court cannot avoid the holding in Schell, 2003 WI App 78, by modifying the conditions of probation to order the probationer to refuse home monitoring. State v. Galecke, 2005 WI App 172, 285 Wis. 2d 691, 702 N.W.2d 392, 04-0779.
This section provides no authority for issuing orders to county sheriffs to transfer prisoners from one county jail to another. State v. Galecke, 2005 WI App 172, 285 Wis. 2d 691, 702 N.W.2d 392, 04-0779.
Convicted at the same time under sub. (2) (a) or (b) is not the same as sentenced at the same time. Because the defendant, although sentenced in separate child support and drug cases at a single hearing, was not convicted at the same time within the meaning of the statute, and therefore not serving a single probationary term, the trial court had the statutory authority to order consecutive periods of conditional jail time exceeding one year in total. State v. Johnson, 2005 WI App 202, 287 Wis. 2d 313, 704 N.W.2d 318, 04-2176.
Sub. (2) plainly and unambiguously provides that the maximum term of probation is dependent upon the maximum term of confinement for the crime committed and not the maximum term of imprisonment. The maximum term of probation for Class B to H felonies equals the maximum initial term of confinement for those crimes. State v. Stewart, 2006 WI App 67, 291 Wis. 2d 480, 713 N.W.2d 165, 05-0979.
Conditions of probation may impinge upon constitutional rights as long as they are not overly broad and are reasonably related to the person's rehabilitation. Geographical limitations, while restricting a defendant's rights to travel and associate, are not per se unconstitutional. Each case must be analyzed on its facts to determine whether the geographic restriction is narrowly drawn. State v. Stewart, 2006 WI App 67, 291 Wis. 2d 480, 713 N.W.2d 165, 05-0979.
A civil settlement agreement can have no effect upon a restitution order while the defendant is on probation unless the circuit court first finds that continued enforcement of the restitution order would result in a double recovery for the victim. After a defendant is released from probation and any unpaid restitution becomes a civil judgment, however, a settlement agreement between the victim and the defendant may preclude the victim from enforcing the judgment. Huml v. Vlazny, 2006 WI 87, 293 Wis. 2d 169, 716 N.W.2d 807, 04-0036.
When a defendant agrees to reimburse the county for the attorney fees of standby counsel or the circuit court informs the defendant of the defendant's potential liability for the fees and standby counsel functions as traditional defense counsel, sub. (1g) and s. 973.06 (1) (e) give a circuit court the authority to impose the attorney fees of standby counsel as a condition of probation. If a defendant does not agree to reimburse the county or is not informed of the potential obligation to pay the fees of standby counsel, payment of attorney fees may not be a condition of probation under s. 973.06 (1) (e). When standby counsel acts primarily for the benefit of the court rather than as defense counsel, attorney fees for standby counsel are inappropriate. State v. Campbell, 2006 WI 99, 294 Wis. 2d 100, 718 N.W.2d 649, 04-0803.
When a defendant has served jail time as a condition of probation and the defendant's probation is later revoked and the defendant commences serving an imposed and stayed sentence, the defendant is entitled to sentence credit for days spent in custody while in conditional jail time status, even if that custody is concurrent with service of an unrelated prison sentence. State v. Yanick, 2007 WI App 30, 299 Wis. 2d 456, 728 N.W.2d 365, 06-0849.
Sub. (2) limits the length of an original term of probation. There is no way to reasonably interpret “original" to mean original plus any extensions. The statute plainly distinguishes limitations on original terms of probation from possible subsequent extensions. Extensions of probation are limited by requiring that they be “for cause," and requiring courts to specify the length of the extension. This interpretation does not render the statute unconstitutional for failing to provide sufficient notice of potential punishment. While “for cause" leaves the determination of maximum sentences to the court, no unlawful delegation of legislative power is involved. State v. Luu, 2009 WI App 91, 319 Wis. 2d 778, 769 N.W.2d 125, 08-2138.
Whether or not circuit courts possess inherent authority to reduce a period of probation that is comparable to the inherent authority courts possess to reduce a sentence, courts have no inherent authority to reduce probation based on a finding of successful rehabilitation. Even assuming that circuit courts possess this inherent authority, that authority must be circumscribed in the same way as the inherent authority of courts to modify sentences already imposed. A claim of rehabilitation sufficient to obviate public protection concerns is not grounds for sentence modification. State v. Dowdy, 2010 WI App 158, 330 Wis. 2d 444, 792 N.W.2d 230, 10-0772.
Sub. (3) (a) does not grant a circuit court authority to reduce the length of probation. Sub. (3) (a) grants a circuit court authority only to “extend probation for a stated period" or to “modify the terms and conditions" of probation. When read in context, it is clear that the authority to “modify the terms and conditions" of probation does not include the authority to reduce the length of probation. State v. Dowdy, 2012 WI 12, 338 Wis. 2d 565, 808 N.W.2d 691, 10-0772.
Probation is not a sentence; it is an alternative to sentence. Probation is a privilege, not a right. Unlike with a maximum sentence or a penalty enhancer, there is no statutory requirement that an accused be advised of potential probation terms or conditions. In this case, the statute itself provided the defendant with sufficient notice of the potential probationary term for acts of domestic abuse. The state did not need to set forth in the information and complaint that it was seeking two years of probation under sub. (2) (a) 1. b. That the state did indicate that it sought a finding of domestic abuse in the first two counts in the complaint did not create a duty to do so in a third. State v. Edwards, 2013 WI App 51, 347 Wis. 2d 526, 830 N.W.2d 109, 12-0758.
Because the defendant's court-ordered three-year term of probation had not expired at the time the Department of Corrections commenced revocation proceedings, the department retained jurisdiction over the defendant despite its issuance of a discharge certificate. The defendant's due process rights were not violated, and equitable estoppel was not available in the context of certiorari review. Greer v. Wiedenhoeft, 2014 WI 19, 353 Wis. 2d 307, 845 N.W.2d 373, 11-2188.
Probation is a statutory creation, and the power to reduce or terminate a term of probation is not necessary for courts to accomplish their constitutionally mandated functions. Therefore, Wisconsin courts do not have the inherent authority to reduce or terminate a period of probation. State v. Schwind, 2019 WI 48, 386 Wis. 2d 526, 926 N.W.2d 742, 17-0141.
Discussing searches under 2013 Wis. Act 79's reasonable suspicion standard. State v. Anderson, 2019 WI 97, 389 Wis. 2d 106, 935 N.W.2d 285, 17-1104.
In this case, as conditions of supervision, the circuit court ordered that the defendant not reside with any member of the opposite sex, nor any child not related by blood, without the permission of the court. That “permission," if given, must be granted by the court through the means of an actual modification of the supervision conditions via sub. (3) or s. 302.113 (7m) and the procedures and requirements related to those statutes. A circuit court does not have the authority to engage in informal, situation-by-situation oversight of a defendant on supervision because it would amount to the court usurping the Department of Corrections' statutorily granted authority to “administer" extended supervision and probation matters under s. 301.03 (3). State v. Williams-Holmes, 2022 WI App 38, 404 Wis. 2d 88, 978 N.W.2d 523, 21-0809.
Sub. (2) applies to all sentences pronounced at the same time, whether grouped together because they are related or because of convenience. United States v. Stalbaum, 63 F.3d 537 (1995).