Wis. Stat. § 973.09
Wis. Stat. § 973.09
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 3 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, N.W.2d (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 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 4th and subsequent OWI 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, ss. 973.048 or 301.45, 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 he or she 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. 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 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 392,285 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 his or her potential liability for the fees and standby counsel functions as traditional defense counsel, ss. 973.06(1) (e) and 973.09(1g) 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 his or her 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 3-year term of probation had not expired at the time the DOC commenced revocation proceedings, the DOC 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. Sub. (2) applies to all sentences pronounced at the same time, whether grouped together, because they are related or because of convenience. U.S. v. Stalbaum, 63 F.3d 537 (1995).