Section 973.15. Sentence, terms, escapes.

 

(1)  Except as provided in s. 973.032 , all sentences to the Wisconsin state prisons shall be for one year or more. Except as otherwise provided in this section, all sentences commence at noon on the day of sentence, but time which elapses after sentence while the convicted offender is at large on bail shall not be computed as any part of the term of imprisonment.

(2)  

(a) Except as provided in par. (b) , the court may impose as many sentences as there are convictions and may provide that any such sentence be concurrent with or consecutive to any other sentence imposed at the same time or previously.

(b) The court may not impose a sentence to the intensive sanctions program consecutive to any other sentence. The court may not impose a sentence to the intensive sanctions program concurrent with a sentence imposing imprisonment, except that the court may impose a sentence to the program concurrent with an imposed and stayed imprisonment sentence or with a prison sentence for which the offender has been released on extended supervision or parole. The court may impose concurrent intensive sanctions program sentences. The court may impose an intensive sanctions program sentence concurrent to probation. The court may impose any sentence for an escape from a sentence to the intensive sanctions program concurrent with the sentence to the intensive sanctions program.

(2m)  

(a) Definitions. In this subsection:

1. “Determinate sentence" means a bifurcated sentence imposed under s. 973.01 or a life sentence under which a person is eligible for release to extended supervision under s. 973.014 (1g) (a) 1. or 2.

2. “Indeterminate sentence" means a sentence to the Wisconsin state prisons other than one of the following:

a. A determinate sentence.

b. A sentence under which the person is not eligible for release on parole under s. 939.62 (2m) (c) or 973.014 (1) (c) .

3. “Period of confinement in prison," with respect to any sentence to the Wisconsin state prisons, means any time during which a person is incarcerated under that sentence, including any extensions imposed under s. 302.11 (3) , 302.113 (3) , or 302.114 (3) and any period of confinement in prison required to be served under s. 302.11 (7) (am) , 302.113 (9) (am) , or 302.114 (9) (am) .

(b) Determinate sentences imposed to run concurrent with or consecutive to determinate sentences.

1. If a court provides that a determinate sentence is to run concurrent with another determinate sentence, the person sentenced shall serve the periods of confinement in prison under the sentences concurrently and the terms of extended supervision under the sentences concurrently.

2. If a court provides that a determinate sentence is to run consecutive to another determinate sentence, the person sentenced shall serve the periods of confinement in prison under the sentences consecutively and the terms of extended supervision under the sentences consecutively and in the order in which the sentences have been pronounced.

(c) Determinate sentences imposed to run concurrent with or consecutive to indeterminate sentences.

1. If a court provides that a determinate sentence is to run concurrent with an indeterminate sentence, the person sentenced shall serve the period of confinement in prison under the determinate sentence concurrent with the period of confinement in prison under the indeterminate sentence and the term of extended supervision under the determinate sentence concurrent with the parole portion of the indeterminate sentence.

2. If a court provides that a determinate sentence is to run consecutive to an indeterminate sentence, the person sentenced shall serve the period of confinement in prison under the determinate sentence consecutive to the period of confinement in prison under the indeterminate sentence.

(d) Indeterminate sentences imposed to run concurrent with or consecutive to determinate sentences.

1. If a court provides that an indeterminate sentence is to run concurrent with a determinate sentence, the person sentenced shall serve the period of confinement in prison under the indeterminate sentence concurrent with the period of confinement in prison under the determinate sentence and the parole portion of the indeterminate sentence concurrent with the term of extended supervision required under the determinate sentence.

2. If a court provides that an indeterminate sentence is to run consecutive to a determinate sentence, the person sentenced shall serve the period of confinement in prison under the indeterminate sentence consecutive to the period of confinement in prison under the determinate sentence.

(e) Revocation in multiple sentence cases. If a person is serving concurrent determinate sentences and extended supervision is revoked in each case, or if a person is serving a determinate sentence concurrent with an indeterminate sentence and both extended supervision and parole are revoked, the person shall concurrently serve any periods of confinement in prison required under those sentences under s. 302.11 (7) (am) , 302.113 (9) (am) , or 302.114 (9) (am) .

(3)  Courts may impose sentences to be served in whole or in part concurrently with a sentence being served or to be served in a federal institution or an institution of another state.

(4)  When a court orders a sentence to the Wisconsin state prisons to be served in whole or in part concurrently with a sentence being served or to be served in a federal institution or an institution of another state:

(a) The court shall order the department to immediately inform the appropriate authorities in the jurisdiction where the prior sentence is to be served that the convicted offender is presently available to commence or resume serving that sentence; and

(b) The trial and commitment records required under s. 973.08 shall be delivered immediately to the warden or superintendent of the Wisconsin institution designated as the reception center to receive the convicted offender when he or she becomes available to Wisconsin authorities.

(5)  A convicted offender who is made available to another jurisdiction under ch. 976 or in any other lawful manner shall be credited with service of his or her Wisconsin sentence or commitment under the terms of s. 973.155 for the duration of custody in the other jurisdiction.

(6)   Sections 302.11 and 304.06 are applicable to an inmate serving a sentence to the Wisconsin state prisons for a crime committed before December 31, 1999, but confined in a federal institution or an institution in another state.

(7)  If a convicted offender escapes, the time during which he or she is unlawfully at large after escape shall not be computed as service of the sentence.

(8)  

(a) The sentencing court may stay execution of a sentence of imprisonment or to the intensive sanctions program only:

1. For legal cause;

2. Under s. 973.09 (1) (a) ; or

3. For not more than 60 days, except that the court may not stay execution of a person's sentence of imprisonment or to the intensive sanctions program under this subdivision if the sentence is for a 3rd or subsequent violation that is counted as a suspension, revocation, or conviction under s. 343.307 , or a violation of s. 940.09 (1) or 940.25 in the person's lifetime, or a combination thereof.

(b) If a court sentences a person under s. 973.03 (5) (b) , this subsection applies only to the first period of imprisonment.

1973 c. 90 ; 1977 c. 347 , 353 , 447 ; 1981 c. 50 , 292 ; 1983 a. 528 ; 1989 a. 31 , 85 ; 1991 a. 39 ; 1993 a. 79 ; 1995 a. 390 ; 1997 a. 283 ; 2001 a. 109 ; 2009 a. 100 . Judicial Council Note, 1981: Sub. (2) has been simplified to allow a court, in imposing a criminal sentence, to order that it be concurrent with or consecutive to any other sentence imposed at the same time or previously. The prior statute, although lengthier and more complicated, failed to achieve its apparent purpose of allowing consecutive sentencing in situations involving probation and parole revocations, escapes, etc. See Drinkwater v. State, 69 Wis. 2d 60 (1975); Guyton v. State, 69 Wis. 2d 663 (1975); Bruneau v. State, 77 Wis. 2d 166 (1977); Smith v. State, 85 Wis. 2d 650 (1978); and Donaldson v. State, 93 Wis. 2d 306 (1980). This revision allows sentences to be made consecutive to any previously or simultaneously imposed sentence, without regard to whether the offender is “then serving" such sentence, is subject to parole revocation proceedings, or has received a new sentence between the time of an escape and a return to a state facility. The revised statute also governs the sentencing of probationers by virtue of the cross-references in ss. 973.09 (1) (a) and 973.10 (2) (a). [Bill 341-A] Judicial Council Note, 1981: Sub. (8) has been added to specify the circumstances under which execution of a sentence of imprisonment may be stayed. Par. (a) references the rule of Reinex v. State, 51 Wis. 152 (1881) and Weston v. State, 28 Wis. 2d 136 (1965), whereby execution can be stayed for “legal cause", such as during the pendency of an appeal. Par. (b) cross-references the probation statute. Par. (c) is new. It allows the court to delay the commencement of a sentence for up to 60 days. The Wisconsin supreme court recently held that courts have no authority to stay execution of a sentence of imprisonment in the absence of such a statutory provision or legal cause. State v. Braun, 100 Wis. 2d 77 (1981). [Bill 736-A] Under s. 973.15 (2) and (3), a court may impose a sentence consecutive to an out-of-state sentence. State v. Toy, 125 Wis. 2d 216 , 371 N.W.2d 386 (Ct. App. 1985). A sentencing court has authority to stay a sentence and order it be served consecutive to a ss. 345.47 and 973.07 commitment for failure to pay a fine and penalty assessment. State v. Strohbeen, 147 Wis. 2d 566 , 433 N.W.2d 288 (Ct. App. 1988). An adult sentence cannot run consecutive to a juvenile disposition. State v. Woods, 173 Wis. 2d 129 , 496 N.W.2d 144 (Ct. App. 1992). The sentence of a defendant convicted of committing a crime while committed under a prior not guilty by reason of mental incompetence commitment under s. 971.17 may not be served concurrent with the commitment. State v. Szulczewski, 209 Wis. 2d 1 , 561 N.W.2d 781 (Ct. App. 1997), 96-1323 . A court may not order a prison sentence consecutive to an s. 971.17 commitment. A sentence can only be imposed concurrent or consecutive to another sentence. State v. Harr, 211 Wis. 2d 584 , 568 N.W.2d 307 (Ct. App. 1997), 96-2815 . The power under sub. (2) to impose consecutive sentences does not grant authority to impose a sentence to be served consecutively to jail time being served as a condition of probation. State v. Maron, 214 Wis. 2d 384 , 571 N.W.2d 454 (Ct. App. 1997), 97-0790 . A commitment under s. 971.17 is legal cause under s. 973.15 (8) to stay the sentence of a defendant who commits a crime while serving the commitment. Whether to stay the sentence while the commitment is in effect or to begin the sentence immediately is within the sentencing court's discretion. State v. Szulczewski, 216 Wis. 2d 495 , 574 N.W.2d 660 (1998), 96-1323 . Sub. (2) authorizes a trial court to impose a sentence consecutive to a previously imposed sentence upon revocation of parole on that sentence. Prior revocation of parole on the earlier sentence is not required before a consecutive sentence may be issued. State v. Cole, 2000 WI App 52 , 233 Wis. 2d 577 , 608 N.W.2d 432 , 98-3336 . That a sentence begins at noon under sub. (1) was not relevant to a double jeopardy analysis in regard to a sentence pronounced in the morning and then corrected and lengthened the same afternoon before the judgment was entered into the record. State v. Burt, 2000 WI App 126 , 237 Wis. 2d 610 , 614 N.W.2d 42 , 99-1209 . Double jeopardy prevents a court that, under a mistaken view of the law, entered a valid concurrent sentence from 3 months later revising the sentence to be a consecutive sentence. State v. Willett, 2000 WI App 212 , 238 Wis. 2d 621 , 618 N.W.2d 881 , 99-2671 . When applicable, sub. (5) dictates giving sentencing credit for the duration of custody in the other jurisdiction. Here, the applicability of s. 973.10 (2) (b) or 973.155 were not dispositive. Whether the petitioner entered a Wisconsin prison before starting his federal sentences, or whether his federal sentences were in connection with the course of conduct for which sentence was imposed, was not the correct test. The question to be answered was whether the petitioner fell within the ambit of sub. (5). State v. Brown, 2006 WI App 41 , 289 Wis. 2d 823 , 711 N.W.2d 708 , 05-0361 . Sections 302.113 (4), 973.01, and 973.15 establish that consecutive periods of extended supervision are to be served consecutively, aggregated into one continuous period, so that revocation of extended supervision at any time allows revocation as to all consecutive sentences. State v. Collins, 2008 WI App 163 , 314 Wis. 2d 653 , 760 N.W.2d 438 , 07-2580 . A sentencing court may consider a COMPAS risk assessment at sentencing without violating a defendant's right to due process if the risk assessment is used properly with an awareness of the limitations and cautions set forth in the opinion. Risk scores may not be used: 1) to determine whether an offender is incarcerated; or 2) to determine the severity of the sentence. Additionally, risk scores may not be used as the determinative factor in deciding whether an offender can be supervised safely and effectively in the community. Any Presentence Investigation Report (PSI) containing a COMPAS risk assessment must contain a written advisement listing those limitations and informing sentencing courts of certain cautions set forth in the opinion. State v. Loomis, 2016 WI 68 , ___ Wis. 2d ___, 881 N.W.2d 749 , 15-0157 . Overcrowding does not constitute legal cause under sub. (8) (a). 76 Atty. Gen. 165 .