304.072 Period of probation, extended supervision or parole tolled.

(1) If the department of corrections in the case of a parolee, probationer or person on extended supervision who is reinstated or waives a hearing or the division of hearings and appeals in the department of administration in the case of a hearing determines that a parolee, probationer or person on extended supervision has violated the terms of his or her supervision, the department or division may toll all or any part of the period of time between the date of the violation and the date an order of revocation or reinstatement is entered, subject to credit according to the terms of s. 973.155 for any time the parolee, probationer or person on extended supervision spent confined in connection with the violation.

(2) If a parolee, probationer or person on extended supervision is alleged to have violated the terms of his or her supervision but the department or division determines that the alleged violation was not proven, the period between the alleged violation and the determination shall be treated as service of the probationary, extended supervision or parole period.

(3) Except as provided in s. 973.09 (3) (b), the department preserves jurisdiction over a probationer, parolee or person on extended supervision if it commences an investigation, issues a violation report or issues an apprehension request concerning an alleged violation prior to the expiration of the probationer's, parolee's or person's term of supervision.

(4) The sentence of a revoked parolee or person on extended supervision resumes running on the day he or she is received at a correctional institution subject to sentence credit for the period of custody in a jail, correctional institution or any other detention facility pending revocation according to the terms of s. 973.155.

(5) The sentence of a revoked probationer shall be credited with the period of custody in a jail, correctional institution or any other detention facility pending revocation and commencement of sentence according to the terms of s. 973.155.

History: 1975 c. 41, 199; 1977 c. 353; 1983 a. 528; 1989 a. 31 s. 1704; Stats. 1989 s. 304.072; 1989 a. 107; 1997 a. 283.

The court could revoke a probation after the original probationary period had expired but the defendant had committed several crimes during the period. Williams v. State, 50 Wis. 2d 709, 184 N.W.2d 844 (1971).

Before the tolling statute applies, the department must make a final determination that a violation occurred. Locklear v. State, 87 Wis. 2d 392, 274 N.W.2d 898 (Ct. App. 1978).

When revocation proceedings were initiated prior to expiration of the parole period, parole was properly revoked after the period expired. State ex rel. Avery v. Percy, 99 Wis. 2d 459, 299 N.W.2d 886 (Ct. App. 1980).

The department may not grant jail credit where it is not provided for by statute. 71 Atty. Gen. 102.

NOTE: The preceding annotations concern s. 57.072, 1975 stats., [now s. 304.072] which was repealed and recreated by ch. 353, laws of 1977 and again by Act 528, laws of 1983.

Sub. (3) applies to all parole violations that occur before the offender's date of discharge from his or her entire sentence. DOC had jurisdiction to revoke a 2nd period of parole for a violation that the defendant committed during his first, and later revoked, period of parole when the violation was not discovered until the 2nd parole period. Department of Corrections v. Schwarz, 2005 WI 34, 279 Wis. 2d 223, 693 N.W.2d 703, 03-2001

An offender who has had extended supervision revoked is entitled to sentence credit on any new charges until the trial court resentences him or her for the available remaining term of extended supervision. A reconfinement hearing is a sentencing, and the revocation is not. The defendant was entitled to sentence credit on the new charge from the date of his arrest until the day of sentencing on both charges because while his extended supervision was revoked, his resentencing had not yet occurred. State v. Presley, 2006 WI App 82, 292 Wis. 2d 734, 715 N.W.2d 713, 05-0359.

A term of supervision under sub. (3) includes the nonconfinement and confinement time arising from the same sentencing decision. With regard to identifying a term of supervision, probation, incarceration, and extended supervision are each a component of the sentence. A person who initially serves a term of probation that is ultimately revoked, and following revocation serves a bifurcated prison term, can be revoked from that prison term's extended supervision component on the basis of a rules violation that occurred during the initial term of probation. McElvaney v. Schwarz, 2008 WI App 102, 313 Wis. 2d 125, 756 N.W.2d 441, 07-0415.

The “sentence" to which sub. (4) refers is the sentence that was issued by the circuit court subsequent to conviction. Sub. (4) looks back at a sentence earlier commenced. In this case when the defendant's parole was revoked, the indeterminate sentence for the defendant's felony conviction caused reincarceration. The reincarceration order did not establish reincarceration as a new sentence. Rather, it was a continuation of the sentence meted out by the circuit court judge. Therefore, if the defendant had not received all the sentence credit that was available to apply to the felony sentence when that sentence was imposed, he could have received it when his parole was revoked. State v. Obriecht, 2015 WI 66, 363 Wis. 2d 816, 867 N.W.2d 387, 13-1345.