Wis. Stat. § 973.01 — Bifurcated sentence of imprisonment and extended supervision

973.01 AnnotationWhile an offender must meet the eligibility requirements of s. 302.045 (2) to participate in the challenge incarceration program, the trial court must, pursuant to sub. (3m), also determine if the offender is eligible for the program, in the exercise of its sentencing discretion. State v. Steele, 2001 WI App 160, 246 Wis. 2d 744, 632 N.W.2d 112, 00-2864.

973.01 AnnotationThe exercise of sentencing discretion requires the court to exercise its discretion to create a sentence within the range provided by the legislature that reflects the circumstances of the situation and the particular characteristics of the offender. The court must consider the gravity of the offense, the offender’s character, and the public’s need for protection. The weight given to any factor is left to the trial court’s discretion. State v. Steele, 2001 WI App 160, 246 Wis. 2d 744, 632 N.W.2d 112, 00-2864.

973.01 AnnotationIf a defendant makes a fraudulent representation to the court, which the court accepts and relies upon in granting a sentence, the court may later declare the sentence void, and double jeopardy does not bar a subsequently increased sentence. State v. Jones, 2002 WI App 208, 257 Wis. 2d. 163, 650 N.W.2d 844, 01-2969.

973.01 AnnotationA court may, in specific circumstances, consider credit for time spent in presentence custody as a factor in determining an appropriate sentence. Because the length of the defendant’s presentence custody affected the time the defendant would actually spend in prison and the expected incarceration term impacted the circuit court’s goal that the defendant receive sex offender treatment in an institutional setting while not remaining incarcerated longer than was necessary to receive treatment, presentence credit was appropriately considered. State v. Fenz, 2002 WI App 244, 258 Wis. 2d 281, 653 N.W.2d 280, 01-1434.

973.01 AnnotationEvents subsequent to sentencing and relating to rehabilitation do not constitute a new sentencing factor justifying sentence modification. State v. Champion, 2002 WI App 267, 258 Wis. 2d 781, 654 N.W.2d 242, 01-1894.

973.01 AnnotationSub. (2) (c) does not authorize a sentencing court to impose any portion of a penalty enhancer as extended supervision. State v. Volk, 2002 WI App 274, 258 Wis. 2d 584, 654 N.W.2d 24, 01-3342.

973.01 AnnotationDespite the failure to object, a defendant may be entitled to resentencing if the sentence was affected by a trial court’s reliance on an improper factor. State v. Groth, 2002 WI App 299, 258 Wis. 2d 889, 655 N.W.2d 163, 01-3000.

973.01 AnnotationWhen a statutory definition is available that provides a defendant with sufficient notice as to the expected course of conduct and an ascertainable standard for enforcement, the condition of extended supervision is not unconstitutionally vague. The definition of “dating relationship” in s. 813.12 (1) (ag) provided the defendant an objective standard and adequate notice of when a condition applied that required the defendant to introduce any person the defendant was “dating” to the defendant’s supervising agent. State v. Koenig, 2003 WI App 12, 259 Wis. 2d 833, 656 N.W.2d 499, 02-1076.

973.01 AnnotationDiscussing calculation of confinement and extended supervision for the presumptive minimum for unclassified felonies under this section prior to the February 1, 2003, amendments. State v. Cole, 2003 WI 59, 262 Wis. 2d 167, 663 N.W.2d 700, 02-0681.

973.01 AnnotationResentencing on convictions that remain intact after one or more counts in a multi-count case is vacated is not always required. When the vacated count does not affect the overall dispositional structure of the original sentence, resentencing on the remaining counts is unnecessary. State v. Church, 2003 WI 74, 262 Wis. 2d 678, 665 N.W.2d 141, 01-3100.

973.01 AnnotationSubs. (2) and (5) prohibit confinement in any facility as a condition of extended supervision. Absent express authority, a trial court cannot order confinement as a condition of extended supervision. State v. Larson, 2003 WI App 235, 268 Wis. 2d 162, 672 N.W.2d 322, 03-0019.

973.01 AnnotationA penalty enhancer under s. 939.62 is not subject to bifurcation, nor is it to be added to the underlying term of imprisonment. State v. Jackson, 2004 WI 29, 270 Wis. 2d 113, 676 N.W.2d 872, 02-0947.

973.01 AnnotationRequisite to a prima facie valid sentence is a statement by the trial judge detailing the reasons for selecting the particular sentence imposed. Circuit courts shall: 1) specify the objectives of the sentence on the record and identify the general objectives of greatest importance; 2) describe the facts relevant to those objectives and explain why the particular component parts of the sentence imposed advance the specified objectives; 3) identify the factors that were considered in arriving at the sentence and indicate how those factors fit the objectives and influence the decision. State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197, 01-0051.

973.01 AnnotationThe sentence imposed shall call for the minimum amount of custody or confinement consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant. Probation should be the disposition unless confinement is necessary to protect the public, the offender needs correctional treatment available only in confinement, or it would unduly depreciate the seriousness of the offense. State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197, 01-0051.

973.01 AnnotationThe good character of a victim killed as the result of a crime is relevant to sentencing, but the court should not attempt to measure the relative value of the victim’s life. Although there may be circumstances in which the court could weigh the positive contributions and worth of the victim in assessing the harm caused by the crime, it does not follow that there is a right to have a court consider that a victim was a terrible burden on society. State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197, 01-0051.

973.01 AnnotationSub. (3m) allows a sentencing court to determine not only whether a defendant is eligible for the challenge incarceration program, but also to set a date of eligibility within the term of confinement in prison. State v. Lehman, 2004 WI App 59, 270 Wis. 2d 695, 677 N.W.2d 644, 03-1269.

973.01 AnnotationA court, after giving consideration to the relevant sentencing factors, may give disproportionate or controlling weight to a single factor. Balancing the factors is for the trial court. Ordering a lengthy term of supervision in order to enable the defendant to pay a sizeable restitution amount did not violate the right to equal protection. State v. Longmire, 2004 WI App 90, 272 Wis. 2d 759, 681 N.W.2d 534, 03-0300.

973.01 AnnotationThe defendant’s life expectancy, coupled with a lengthy sentence, while perhaps guaranteeing that the defendant will spend the balance of the defendant’s life in prison, does not have to be taken into consideration by the circuit court. If the circuit court chooses to consider a defendant’s life expectancy, it must explain, on the record, how the defendant’s life expectancy fits into the sentencing objectives. State v. Stenzel, 2004 WI App 181, 276 Wis. 2d 224, 688 N.W.2d 20, 03-2974.

973.01 AnnotationConsistent with Lehman, 2004 WI App 59, sub. (3g) allows a sentencing court to determine whether a defendant is eligible for the earned release program and to set a date of eligibility within the term of confinement in prison. State v. White, 2004 WI App 237, 277 Wis. 2d 580, 690 N.W.2d 880, 04-1211.

973.01 AnnotationA defendant’s age is a secondary factor that the trial court may, but is not required to, consider in fashioning an appropriate sentence. The trial court, if it considers age, determines whether it should carry any weight. State v. Davis, 2005 WI App 98, 281 Wis. 2d 118, 698 N.W.2d 823, 04-1163.

973.01 AnnotationA condition of extended supervision and probation that the defendant have no contact with the drug community was not unconstitutionally overbroad or vague. When the trial court specifically told the defendant not be around any person when, or be in any place where, drugs are being possessed, used, or sold, the condition was clear and gave fair notice of what a drug community was. State v. Trigueros, 2005 WI App 112, 282 Wis. 2d 445, 701 N.W.2d 54, 04-1701.

973.01 AnnotationA condition of extended supervision need not directly relate to the defendant’s criminal conduct in the underlying conviction. Trial courts are granted broad discretion in determining conditions necessary for extended supervision subject only to a standard of reasonableness and appropriateness determined by how well the condition serves the dual goals of supervision: 1) rehabilitation of the defendant; and 2) protection of a state or community interest. A condition of extended supervision that the defendant maintain child support payments was reasonable and appropriate. State v. Miller, 2005 WI App 114, 283 Wis. 2d 465, 701 N.W.2d 47, 04-1406.

973.01 AnnotationWhen a person is being sentenced after revocation of extended supervision, discretion can exist without an explicit delineation of the McCleary, 49 Wis. 2d 263 (1971), sentencing factors: 1) the gravity of the offense; 2) the character of the offender; and 3) the need to protect the public. There must be an indication that the court considered those factors. State v. Jones, 2005 WI App 259, 288 Wis. 2d 475, 707 N.W.2d 876, 05-0018.

973.01 AnnotationA defendant who requests resentencing due to the circuit court’s use of inaccurate information at the sentencing hearing must show both that the information was inaccurate and that there was actual reliance, not prejudicial reliance, on the inaccurate information by the court in the sentencing. Once actual reliance on inaccurate information is shown, the burden then shifts to the state to prove the error was harmless. State v. Tiepelman, 2006 WI 66, 291 Wis. 2d 179, 717 N.W.2d 1, 04-0914.

973.01 AnnotationGallion, 2004 WI 42, does not require that the trial court explain why it imposed three years as opposed to one or two. State v. Klubertanz, 2006 WI App 71, 291 Wis. 2d 751, 713 N.W.2d 116, 05-1256.

973.01 AnnotationThat test of whether the statutory language is capable of being understood by reasonably well-informed persons in two or more different ways is adopted for sentence construction disputes. As it looks for legislative intent when faced with an ambiguous statute, the appellate court should look for the trial court’s sentencing intent when faced with an ambiguous oral sentencing pronouncement. The appellate court is required to determine the trial court’s sentencing intent from other parts of the record, including the judgment of conviction. Without more, the bald recital of a consecutive sentence in the judgment of conviction is insufficient to overcome the presumption of a concurrent sentence. State v. Oglesby, 2006 WI App 95, 292 Wis. 2d 716, 715 N.W.2d 727, 05-1565.

973.01 AnnotationSubs. (3g) and (3m) are not applicable to reconfinement under s. 302.113 (9) (am). State v. Hall, 2007 WI App 168, 304 Wis. 2d 504, 737 N.W.2d 13, 06-1439.

973.01 AnnotationSub. (5) does not require a sentencing court to make an ability-to-pay determination when the court orders a contribution payment as a condition of extended supervision. Neither the requirement that an ability-to-pay determination be made when a contribution surcharge is taxed against a defendant under s. 973.06 (1) or when a contribution surcharge is imposed as a condition of probation under former s. 973.09 (1x), 2005 stats., applies to sub. (5). State v. Galvan, 2007 WI App 173, 304 Wis. 2d 466, 736 N.W.2d 890, 06-2052.

973.01 AnnotationA fine that an offender has the ability to pay may satisfy sentencing objectives the trial court has found to be material and relevant to the particular defendant. A trial court is not required to explain the reason for a specific amount of a fine, but some explanation of why the court imposes a fine is required. If the sentencing court intends to impose a fine, the court must determine at the time of sentencing whether a defendant has the ability to pay a fine during the total sentence. The standard for imposing a fine, which is part of the punishment, should require no less consideration of the defendant’s ability to pay than is required as part of an order of restitution. State v. Ramel, 2007 WI App 271, 306 Wis. 2d 654, 743 N.W.2d 502, 07-0355. See also State v. Vesper, 2018 WI App 31, 382 Wis. 2d 207, 912 N.W.2d 418, 17-0173.

973.01 AnnotationA defendant has a due process right to be sentenced based on accurate information. State v. Payette, 2008 WI App 106, 313 Wis. 2d 39, 756 N.W.2d 423, 07-1192.

973.01 AnnotationThe circuit court had the authority to order the defendant to reimburse the defendant’s mother for forfeited bail the defendant’s mother paid, either as restitution or as a condition of extended supervision. State v. Agosto, 2008 WI App 149, 314 Wis. 2d 385, 760 N.W.2d 415, 06-2646.

973.01 AnnotationThis section and ss. 302.113 (4) 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.

973.01 AnnotationDue process requires that vindictiveness against a defendant for having successfully attacked the defendant’s first conviction play no part in the sentence received after a new trial. When a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for doing so must be free from a retaliatory motive. Because retaliatory motives can be complex and difficult to prove, the U.S. Supreme Court has found it necessary to presume an improper vindictive motive, which also applies when a defendant is resentenced following a successful attack on an invalid sentence. However, the presumption stands only when a reasonable likelihood of vindictiveness exists. A new sentence that is longer than the original sentence that implements the original dispositional scheme is not tainted by vindictiveness. State v. Sturdivant, 2009 WI App 5, 316 Wis. 2d 197, 763 N.W.2d 185, 07-2508.

973.01 AnnotationA sentencing court may consider uncharged and unproven offenses and facts related to offenses for which the defendant has been acquitted. Sentencing courts are obliged to acquire full knowledge of the character and behavior pattern of the defendant before imposing sentence. State v. Prineas, 2009 WI App 28, 316 Wis. 2d 414, 766 N.W.2d 206, 07-1982.

973.01 AnnotationA court may certainly tell a defendant what could happen if the defendant’s extended supervision is revoked. But telling a defendant what will happen imperils the defendant’s due process right to an impartial judge at a reconfinement hearing. State v. Goodson, 2009 WI App 107, 320 Wis. 2d 166, 771 N.W.2d 385, 08-2623.

973.01 AnnotationA defendant has a constitutional due process right not to be sentenced on the basis of race or gender. The defendant has the burden to prove that the circuit court actually relied on race or gender in imposing its sentence. The standard of proof is clear and convincing evidence. The defendant must provide evidence indicating that it is highly probable or reasonably certain that the circuit court actually relied on race or gender when imposing its sentence. A reasonable observer test is rejected. State v. Harris, 2010 WI 79, 326 Wis. 2d 685, 786 N.W.2d 409, 08-0810.

973.01 AnnotationA sentencing court did not violate the 4th amendment or article I, section 11, of the Wisconsin Constitution by setting a condition of extended supervision that allows any law enforcement officer to search the defendant’s person, vehicle, or residence for firearms, at any time and without probable cause or reasonable suspicion. While the condition that the circuit court imposed may have impinged on constitutional rights, it did not violate them as the circuit court made an individualized determination, pursuant to the court’s authority under sub. (5), that the condition was necessary based on the facts in this case involving violence, threats, and a firearm. State v. Rowan, 2012 WI 60, 341 Wis. 2d 281, 814 N.W.2d 854, 10-1398.

973.01 AnnotationThe suggestion that dismissed charges not be considered in sentencing is not reasonable. It is better practice for the court to acknowledge and discuss dismissed charges, if they are considered by the court, giving them appropriate weight and describing their relationship to a defendant’s character and behavioral pattern, or to the incident that serves as the basis for a plea. The defendant should be given an opportunity to explain or dispute these charges. State v. Frey, 2012 WI 99, 343 Wis. 2d 358, 817 N.W.2d 436, 10-2801.

973.01 AnnotationIn the context of interpreting plea bargains under contract law, dismissed charges do not have a static meaning. They are a product of the parties’ negotiations, and they mean what the parties intend them to mean. The one exception is that a plea agreement involving one or more dismissed charges cannot limit what the judge may consider at sentencing. Such agreements are contrary to public policy. The term “dismissed outright” should be discontinued. Instead, plea bargains should pin down whether a district attorney is agreeing not to prosecute a dismissed charge. State v. Frey, 2012 WI 99, 343 Wis. 2d 358, 817 N.W.2d 436, 10-2801.

973.01 AnnotationTiepelman, 2006 WI 66, teaches that a defendant is entitled to resentencing if the defendant meets the following two-pronged test: 1) the defendant shows that the information at the original sentencing was inaccurate; and 2) the defendant shows that the court actually relied on the inaccurate information at sentencing. Whether the circuit court actually relied on the incorrect information at sentencing turns on whether the circuit court gave “explicit attention” or “specific consideration” to the inaccurate information, so that the inaccurate information “formed part of the basis for the sentence.” Upon determining that a circuit court actually relied upon inaccurate information at sentencing the reviewing court applies a harmless error analysis. State v. Travis, 2013 WI 38, 347 Wis. 2d 142, 832 N.W.2d 491, 11-0685.

973.01 AnnotationThe court’s invocations of a religious deity during sentencing were ill-advised. However, not every “ill-advised word” will create reversible error. The transcript reflects that the court’s offhand religious references addressed proper secular sentencing factors. The judge’s comments did not suggest the defendant required a longer sentence to pay religious penance. State v. Betters, 2013 WI App 85, 349 Wis. 2d 428, 835 N.W.2d 249, 12-1339.

973.01 AnnotationSub. (2) (c) 1. is not applicable to misdemeanors. Whereas for a felony, an enhancement lengthens the otherwise applicable “maximum term of confinement in prison,” for a misdemeanor, an enhancement transforms the misdemeanor sentence into a sentence to the state prisons, which then must be bifurcated. Because no “maximum term of confinement in prison” exists for a misdemeanor until the enhancement is applied, once it is applied, it cannot be applied again. State v. Lasanske, 2014 WI App 26, 353 Wis. 2d 280, 844 N.W.2d 417, 12-2016.

973.01 AnnotationThe limitation under s. 343.30 (5) that no court may suspend or revoke an operating privilege except as authorized by statute precludes not only restrictions on obtaining a physical license document, but also on the privilege to operate a vehicle. A court’s broad authority to fashion appropriate conditions of extended supervision is limited by the provisions of s. 343.30 concerning suspension and revocation of operating privileges by the courts. State v. Hoppe, 2014 WI App 51, 354 Wis. 2d 219, 847 N.W.2d 869, 13-1457.

973.01 AnnotationAlthough a sentencing court may not constitutionally impose a sentence based on national origin, the court may consider a defendant’s relevant illegal conduct related to immigration without denying the defendant due process of law. In this case, the court did not deny the defendant due process in the form of reliance on an improper sentencing factor when the court mentioned the defendant’s immigration status as a minor aspect of the court’s comprehensive evaluation of the defendant’s character. State v. Salas Gayton, 2016 WI 58, 370 Wis. 2d 264, 882 N.W.2d 459, 13-0646.

973.01 AnnotationA sentencing court may consider a Correctional Offender Management Profiling for Alternative Sanctions (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 to determine: 1) whether an offender is incarcerated; or 2) 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, 371 Wis. 2d 235, 881 N.W.2d 749, 15-0157.

973.01 AnnotationSentencing courts have wide discretion and may impose any conditions of probation or supervision that appear to be reasonable and appropriate. The sentencing court was entitled to err on the side of caution—for the sake of the defendant and the community—and rely upon the investigating officers’ representation that the defendant had a substance abuse history over the representation of the defendant’s counsel that the defendant did not have a substance abuse problem because the defendant had some “clean drug screens” while on supervision and because counsel personally was not aware of a substance abuse problem. State v. Davis, 2017 WI App 55, 377 Wis. 2d 678, 901 N.W.2d 488, 16-1416.

973.01 AnnotationIn addition to the three main factors a circuit court must consider in determining a defendant’s sentence, the circuit court also may consider secondary factors, including: 1) past record of criminal offense; 2) history of undesirable behavior pattern; 3) defendant’s personality, character, and social traits; 4) result of presentence investigation; 5) vicious or aggravated nature of the crime; 6) degree of defendant’s culpability; 7) defendant’s demeanor at trial; 8) defendant’s age, educational background, and employment record; 9) defendant’s remorse, repentance, and cooperativeness; 10) defendant’s need for close rehabilitative control; 11) the rights of the public; and 12) the length of pretrial detention. State v. Williams, 2018 WI 59, 381 Wis. 2d 661, 912 N.W.2d 373, 16-0883.

973.01 AnnotationA defendant’s failure to express remorse can be used at sentencing only if it is one among other factors and if it receives no undue consideration. State v. Pico, 2018 WI 66, 382 Wis. 2d 273, 914 N.W.2d 95, 15-1799.

973.01 AnnotationUnder Birchfield, 579 U.S. 438 (2016), it is impermissible to impose criminal penalties for refusing to submit to a warrantless blood draw. A lengthier jail sentence is a criminal penalty. Therefore, the circuit court in this case violated Birchfield by explicitly subjecting the defendant to a more severe criminal penalty because the defendant refused to provide a blood sample absent a warrant. State v. Dalton, 2018 WI 85, 383 Wis. 2d 147, 914 N.W.2d 120, 16-2483.

973.01 AnnotationA circuit court erroneously exercises its sentencing discretion when it actually relies on clearly irrelevant or improper factors. Accordingly, a defendant challenging the defendant’s sentence must prove by clear and convincing evidence that: 1) the challenged factor is irrelevant or improper; and 2) the circuit court actually relied on that factor. Under the improper-factor prong, sentencing factors are proper when they inform valid sentencing objectives including the protection of the community, punishment of the defendant, rehabilitation of the defendant, and deterrence to others. A circuit court may properly entertain a general predisposition, based upon the court’s criminal sentencing experience, so long as that predisposition is not so specific or rigid that it ignores the particular circumstances of the individual offender. Under the actual-reliance prong, the appeals court reviews the sentencing transcript as a whole and assesses any allegedly improper comments within that context. A defendant will fall short of proving actual reliance if the transcript lacks clear and convincing evidence that the factor was the sole cause of a harsher sentence. A defendant will also fail to show actual reliance if a reference to a challenged factor bears a reasonable nexus to a relevant, proper factor. State v. Dodson, 2022 WI 5, 400 Wis. 2d 313, 969 N.W.2d 225, 18-1476.

973.01 AnnotationA circuit court erroneously exercises its sentencing discretion when it actually relies on clearly irrelevant or improper factors. To prove actual reliance on an improper factor, a defendant must show that the circuit court imposed a harsher sentence solely because of the improper factor. To be the sole cause of a harsher sentence, an improper factor must stand alone as an independent factor. If a circuit court’s reference to a challenged factor bears a reasonable nexus to a proper sentencing factor, then the circuit court has not imposed sentence based “solely” on the improper factor. State v. Whitaker, 2022 WI 54, 402 Wis. 2d 735, 976 N.W.2d 304, 20-0029.

973.01 AnnotationWisconsin law empowers circuit courts to impose conditions of extended supervision and probation and to modify those conditions through a formal statutory process. However, actual administration of the sentence and conditions is entrusted to the Department of Corrections. In this case, the circuit court likely stepped over the line when the court imposed a condition that the defendant could not live with any women or unrelated children without the permission of the court, and the court intended to administer that condition through case-by-case oversight. State v. Williams-Holmes, 2023 WI 49, 408 Wis. 2d 1, 991 N.W.2d 373, 21-0809.

973.01 AnnotationThe use of the word “or” in sub. (2) (c) 2. c. contrasts with the use of the word “and” in sub. (2) (c) 2. a. The use of the word “or” indicates that only one of the penalty enhancers found in ss. 939.62 (1) and 961.48 can apply, but not both. State v. Hailes, 2023 WI App 29, 408 Wis. 2d 465, 992 N.W.2d 835, 21-1339.

973.01 AnnotationTruth-In-Sentencing Comes to Wisconsin. Brennan & Latorraca. Wis. Law. May 2000.

973.01 AnnotationFully Implementing Truth-in-Sentencing. Brennan, Hammer, & Latorraca. Wis. Law. Nov. 2002.

Wis. Stat. § 973.01 (2026)

Bifurcated sentence of imprisonment and extended supervision