Section 973.10. Control and supervision of probationers.

 

(1)  Imposition of probation shall have the effect of placing the defendant in the custody of the department and shall subject the defendant to the control of the department under conditions set by the court and rules and regulations established by the department for the supervision of probationers, parolees and persons on extended supervision.

(1m)  

(a) The department may order that a probationer perform community service work for a public agency or a nonprofit charitable organization. An order may apply only if agreed to by the probationer and the organization or agency. The department shall ensure that the probationer is provided a written statement of the terms of the community service order and shall monitor the probationer's compliance with the community service order. Compliance with this subsection does not entitle a probationer to credit under s. 973.155 .

(b) Any organization or agency acting in good faith to which a probationer is assigned under 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. The department has immunity from any civil liability for acts or omissions by or impacting on the probationer regarding the assignment under this subsection.

(2)  If a probationer violates the conditions of probation, the department of corrections may initiate a proceeding before the division of hearings and appeals in the department of administration. Unless waived by the probationer, a hearing examiner for the division shall conduct an administrative hearing and enter an order either revoking or not revoking probation. Upon request of either party, the administrator of the division shall review the order. If the probationer waives the final administrative hearing, the secretary of corrections shall enter an order either revoking or not revoking probation. If probation is revoked, the department shall:

(a) If the probationer has not already been sentenced, order the probationer brought before the court for sentence which shall then be imposed without further stay under s. 973.15 ; or

(b) If the probationer has already been sentenced, order the probationer to prison, and the term of the sentence shall begin on the date the probationer enters the prison.

(2g)  Upon demand prior to a revocation hearing under sub. (2) , the district attorney shall disclose to a defendant the existence of any audiovisual recording of an oral statement of a child under s. 908.08 which is within the possession, custody or control of the state and shall make reasonable arrangements for the defendant and defense counsel to view the statement. If, after compliance with this subsection, the state obtains possession, custody or control of such a statement, the district attorney shall promptly notify the defendant of that fact and make reasonable arrangements for the defendant and defense counsel to view the statement.

(2m)  In any administrative hearing under sub. (2) , the hearing examiner may order that a deposition be taken by audiovisual means and allow the use of a recorded deposition under s. 967.04 (7) to (10) .

(2s)  If a probationer signs a statement admitting a violation of a condition or rule of probation, the department may, as a sanction for the violation, confine the probationer for up to 90 days in a regional detention facility or, with the approval of the sheriff, in a county jail. If the department confines the probationer in a county jail under this subsection, the department shall reimburse the county for its actual costs in confining the probationer from the appropriations under s. 20.410 (1) (ab) and (b) .

(3)  A copy of the order of the department of corrections in the case of a waiver or the division of hearings and appeals in the department of administration in the case of a final administrative hearing is sufficient authority for the officer executing it to take the probationer to court or to prison. The officer shall execute the order as a warrant for arrest but any officer may, without order or warrant, take the probationer into custody whenever necessary in order to prevent escape or enforce discipline or for violation of probation.

(4)  The division of hearings and appeals in the department of administration shall make either an electronic or stenographic record of all testimony at each probation revocation hearing. The division shall prepare a written transcript of the testimony only at the request of a judge who has granted a petition for judicial review of the revocation decision. Each hearing notice shall include notice of the provisions of this subsection and a statement that any person who wants a written transcript may record the hearing at his or her own expense.

1971 c. 298 ; 1975 c. 41 , 157 , 199 ; 1977 c. 347 ; 1981 c. 50 ; 1983 a. 27 , 197 ; 1985 a. 262 s. 8 ; 1989 a. 31 , 107 ; 1995 a. 96 , 387 ; 1997 a. 283 ; 2005 a. 42 ; 2013 a. 196 . Cross-reference: See also ss. DOC 330.02 and 331.01 , Wis. adm. code. Judicial Council Note, 1981: Sub. (2) (a) has been amended to clarify that, upon revocation of probation of an offender from whom sentence was originally withheld, the court must impose sentence in accordance with s. 973.15. That section now permits the court to order that any sentence be concurrent with or consecutive to any sentence imposed at the same time or previously. [Bill 341-A] Before probation can be revoked, the department must hold a hearing and make a record so that on judicial review it can be determined whether the department acted arbitrarily or capriciously. The hearing need not be formal. State ex rel. Johnson v. Cady, 50 Wis. 2d 540 , 185 N.W.2d 306 (1971). Revocation of probation is an integral part of the sentencing process; a defendant is entitled to assistance of counsel at parole or probation revocation hearings without regard to whether the hearing occurs in a withheld sentence or a postsentence situation. Oestrich v. State, 55 Wis. 2d 222 , 198 N.W.2d 664 (1974). Since probation revocation hearings are independent from the original conviction and sentencing, a judge disqualified in the original case may preside at the hearing in the absence of a challenge. State v. Fuller, 57 Wis. 2d 408 , 204 N.W.2d 452 (1973). Witnesses at a probation revocation hearing need not be sworn. State v. Gerard, 57 Wis. 2d 611 , 205 N.W.2d 374 (1973). ABA standards relating to probation are adopted and applied. State ex rel. Plotkin v. DHSS, 63 Wis. 2d 535 , 217 N.W.2d 641 (1974). A certiorari proceeding in the committing court to review a revocation of parole or probation is not a criminal proceeding. State ex rel. Hanson v. DHSS, 64 Wis. 2d 367 , 219 N.W.2d 267 (1974). The right to counsel at a preliminary revocation hearing is within the discretion of the department based on the need to meet the applicable due process requirements. State ex rel. Hawkins v. Gagnon, 64 Wis. 2d 394 , 219 N.W.2d 252 (1974). A defendant whose probation was transferred to Tennessee and who was charged with a violation of probation there was denied due process when the revocation hearing was held in Wisconsin and the department refused to allow deposition of witnesses in Tennessee. When the witnesses' testimony is of a direct and unequivocally exculpatory nature rather than cumulative, character, or background testimony that might have been adequately presented by deposition or affidavit, an opportunity to present live testimony with cross-examination of the witnesses is required. State ex rel. Harris v. Schmidt, 69 Wis. 2d 668 , 230 N.W.2d 890 (1975). Department probation files and records are public records and admissible at a probation revocation hearing. State ex rel. Prellwitz v. Schmidt, 73 Wis. 2d 35 , 242 N.W.2d 227 (1976). Time spent in jail awaiting revocation is deducted from a maximum sentence despite the option available to the defendant to spend the time in prison. State ex rel. Solie v. Schmidt, 73 Wis. 2d 76 , 242 N.W.2d 244 (1976). When the department overrules its hearing examiner and revokes probation, it must provide a statement of the evidence relied upon and the reasons for revoking probation. Ramaker v. State, 73 Wis. 2d 563 , 243 N.W.2d 534 (1976). A warrantless search by a probation officer was constitutionally permissible when probable cause existed for the officer's attempt to determine whether the probationer had violated probation. State v. Tarrell, 74 Wis. 2d 647 , 247 N.W.2d 696 (1976). The trial court had no authority to extend the probation of a defendant brought before the court under sub. (2). State v. Balgie, 76 Wis. 2d 206 , 251 N.W.2d 36 (1977). The court exceeded its jurisdiction by releasing the defendant on bail pending revocation proceedings. State ex rel. DHSS v. Second Judicial Circuit Court, 84 Wis. 2d 707 , 267 N.W.2d 373 (1978). Equal protection does not require symmetry in probation and parole systems. State v. Aderhold, 91 Wis. 2d 306 , 284 N.W.2d 108 (Ct. App. 1979). A probationer's due process right to prompt revocation proceedings was not triggered when the probationer was detained as a result of unrelated criminal proceedings. State ex rel. Alvarez v. Lotter, 91 Wis. 2d 329 , 283 N.W.2d 408 (Ct. App. 1979). Probation can be revoked for violation of a criminal statute absent a written probation agreement. State ex rel. Rodriguez v. DHSS, 133 Wis. 2d 47 , 393 N.W.2d 105 (Ct. App. 1986). A probation officer may conduct a warrantless search. That the underlying conviction is subsequently overturned does not retroactively invalidate a warrantless search by the probation officer. State v. Angiolo, 207 Wis. 2d 561 , 558 N.W.2d 701 (Ct. App. 1996), 96-0099 . A probationer has a right to a competency determination when during a revocation proceeding the administrative law judge has reason to doubt the probationer's competence. The determination shall be made by the circuit court in the county of sentencing, which shall adhere to ss. 971.13 and 971.14 to the extent practicable. State ex rel. Vanderbeke v. Endicott, 210 Wis. 2d 502 , 563 N.W.2d 883 (1997), 95-0907 . Because an administrative decision may be reviewed upon a timely petition for certiorari, an adequate remedy exists at law to correct defects and relief under habeas corpus will not be granted. State ex rel. Reddin v. Galster, 215 Wis. 2d 179 , 572 N.W.2d 505 (Ct. App. 1998), 97-0111 . A certiorari proceeding to review a probation revocation must be heard in the circuit court of conviction, but it need not be by the same branch. Drow v. Schwarz, 225 Wis. 2d 362 , 592 N.W.2d 623 (1999), 97-1867 . Sub (2) is constitutional. Probation and probation revocation are within the powers shared by the branches of government. Legislative delegation of revocation to the executive branch does not unduly burden or substantially interfere with the judiciary's constitutional function to impose criminal penalties. State v. Horn, 226 Wis. 2d 637 , 594 N.W.2d 772 (1999), 97-2751 . Sub. (2) prohibits judicial revocation of probation by the trial courts. State v. Burchfield, 230 Wis. 2d 348 , 602 N.W.2d 154 (Ct. App. 1999), 99-0716 . If a probationer refuses to incriminate himself or herself as required by a condition of supervision, he or she cannot be automatically revoked on that ground. If the probationer refuses despite a grant of immunity, his or her probation may be revoked on that basis. Any incriminating statements the probationer provides under the grant of immunity may be used as justification for revocation, but not used in any criminal proceedings. If a probationer is compelled by way of probation rules to incriminate himself or herself, the resulting statements may not be used in any criminal proceeding. State v. Peebles, 2010 WI App 156 , 330 Wis. 2d 243 , 792 N.W.2d 212 , 09-3111 . When both the circuit court and the defendant's probation agent ordered the defendant to attend sex offender counseling, his supervision rules required that he be truthful, that he submit to lie detector tests, and that he fully cooperate with and successfully complete sex offender counseling, the probation supervision rules documents explicitly informed the defendant he could be revoked for failure to comply with any conditions, and the defendant gave his statements, at least in part, because he was required to take lie detector tests, his statements were compelled for purposes of the 5th amendment. Because the statements were then used against him at sentencing to increase his prison sentence, they were incriminating and should have been excluded. State v. Peebles, 2010 WI App 156 , 330 Wis. 2d 243 , 792 N.W.2d 212 , 09-3111 . When a probationer or parolee is charged with a crime and may have otherwise violated conditions of release, revocation hearings based on the non-criminal violations should be held without delay. 65 Atty. Gen. 20. A state may require probation officers, among other "peace officers," to be U.S. citizens. Cabel v. Chavez-Solido, 454 U.S. 432 (1982). Revocation of probation without a hearing is a denial of due process. Hahn v. Burke, 430 F.2d 100 (1970). A probation revocation hearing may be administrative. Retained or appointed counsel must be allowed to participate. Gunsolus v. Gagnon, 454 F.2d 416 (1971). Probation revocation; right to a hearing and to counsel. 1971 WLR 648. Probation and parole revocation in Wisconsin. 1977 WLR 503.