973.12 Sentence of a repeater or persistent repeater.

(1) Whenever a person charged with a crime will be a repeater or a persistent repeater under s. 939.62 or subject to a penalty under s. 939.6195 if convicted, any applicable prior convictions may be alleged in the complaint, indictment or information or amendments so alleging at any time before or at arraignment, and before acceptance of any plea. The court may, upon motion of the district attorney, grant a reasonable time to investigate possible prior convictions before accepting a plea. If the prior convictions are admitted by the defendant or proved by the state, he or she shall be subject to sentence under s. 939.6195 or 939.62 unless he or she establishes that he or she was pardoned on grounds of innocence for any crime necessary to constitute him or her a repeater or a persistent repeater. An official report of the F.B.I. or any other governmental agency of the United States or of this or any other state shall be prima facie evidence of any conviction or sentence therein reported. Any sentence so reported shall be deemed prima facie to have been fully served in actual confinement or to have been served for such period of time as is shown or is consistent with the report. The court shall take judicial notice of the statutes of the United States and foreign states in determining whether the prior conviction was for a felony or a misdemeanor.

(2) In every case of sentence under s. 939.6195 or 939.62, the sentence shall be imposed for the present conviction, but if the court indicates in passing sentence how much thereof is imposed because the defendant is a repeater, it shall not constitute reversible error, but the combined terms shall be construed as a single sentence for the present conviction.

History: 1993 a. 289; 2017 a. 145.

This section does not authorize two sentences for one crime. State v. Upchurch, 101 Wis. 2d 329, 305 N.W.2d 57 (1981).

Because s. 939.62 authorizes penalty enhancement only when the maximum underlying sentence is imposed, the enhancement portion of a sub-maximum sentence was vacated as an abuse of sentencing discretion. State v. Harris, 119 Wis. 2d 612, 350 N.W.2d 633 (1984).

A report under sub. (1) must contain critically relevant facts in order to support penalty enhancement. State v. Farr, 119 Wis. 2d 651, 350 N.W.2d 640 (1984).

The effect of consolidation on a repeater allegation is discussed. State v. Rachwal, 159 Wis. 2d 494, 465 N.W.2d 490 (1991).

No amendment to a charging document to add a repeater allegation may be made after arraignment and acceptance of any plea. State v. Martin, 162 Wis. 2d 883, 470 N.W.2d 900 (1991).

A post-plea amendment of a repeater allegation in a charging document that meaningfully changes the basis on which possible punishment can be assessed is barred. State v. Wilks, 165 Wis. 2d 102, 477 N.W.2d 632 (Ct. App. 1991).

A guilty plea without a specific admission to repeater allegations is not sufficient to establish the facts necessary to impose the repeater penalty enhancer. State v. Zimmermann, 185 Wis. 2d 549, 518 N.W.2d 303 (Ct. App. 1994).

When a defendant does not admit to habitual criminality when entering a no contest plea, the state must prove the alleged repeater status beyond a reasonable doubt. State v. Theriault, 187 Wis. 2d 125, 522 N.W.2d 254 (Ct. App. 1994).

For a repeater enhancer to apply, the prior conviction must be alleged prior to the entry of a plea, but an error in the information regarding the penalty may be corrected when an amendment will cause no prejudice. State v. Gerard, 189 Wis. 2d 505, 525 N.W.2d 718 (1995).

Proof of repeater status must be made prior to sentencing. Judicial notice of prior convictions at a postconviction hearing was improper. State v. Koeppen, 195 Wis. 2d 117, 536 N.W.2d 386 (Ct. App. 1995), 94-2386.

Gerard is not limited to clerical errors. If the information correctly alleges a defendant's repeater status, a post-arraignment amendment to the information does not violate this section as long as it does not affect the sufficiency of the notice to the defendant concerning his or her repeater status. State v. Campbell, 201 Wis. 2d 783, 549 N.W.2d 501 (Ct. App. 1996), 95-2217.

The requirements for establishing prior offenses in s. 973.12 are not applicable to the penalty enhancement provisions under chs. 341 to 349, including drunk driving offenses under s. 346.65 (2) or operating after revocation offenses under s. 343.44 (2). State v. Wideman, 206 Wis. 2d 91, 556 N.W.2d 737 (1996), 95-0852 and State v. Spaeth, 206 Wis. 2d 135, 556 N.W.2d 728 (1996), 95-1827.

Sub. (1) does not require that the period of incarceration under s. 939.62 (2) must be alleged in the charging document. State v. Squires, 211 Wis. 2d 876, 565 N.W.2d 309 (Ct. App. 1997), 96-3302.

When the record established that the defendant fully understood the nature of the repeater charge against him, the defendant's no contest plea to the information, which charged the defendant as a repeater on all counts, constituted an admission under s. 973.12. State v. Liebnitz, 231 Wis. 2d 272, 603 N.W.2d 208 (1999), 98-2182.

Sub. (1) does not prohibit defendants from agreeing, after arraignment and entry of a not guilty plea as part of a plea agreement, to amend charging documents to add repeater allegations. State v. Peterson, 2001 WI App 220, 247 Wis. 2d 871, 634 N.W.2d 893, 01-0116.

Although the information itself failed to contain sufficient detail to provide proper notice of a repeater allegation in compliance with the statute and Gerard, a certified copy of the defendant's prior convictions, provided at a change of plea hearing, cured the defect. State v. Fields, 2001 WI App 297, 249 Wis. 2d 292, 638 N.W.2d 897, 01-1177.

An uncertified copy of a prior judgment of conviction may be used to prove a convicted defendant's status as a habitual criminal. The rules of evidence do not apply to documents offered during a circuit court's presentence determination of whether a qualifying prior conviction exists. The state has the burden of proof and must offer proof beyond a reasonable doubt of the conviction. State v. Saunders, 2002 WI 107, 255 Wis. 2d 589, 649 N.W.2d 263, 01-0271.

The admissibility of evidence proving prior convictions can be waived when the prosecution submits documentary evidence that on its face is sufficient to show that the defendant was a repeater. State v. Edwards, 2002 WI App 66, 251 Wis. 2d 651, 642 N.W.2d 537, 01-0612.

In a complaint that in referring to predicate convictions described the offenses, stated the correct county where the convictions occurred, and cited the case number, but misstated the date of the convictions by only one calendar day, the misstatement did not meaningfully change the basis on which the defendant entered a plea and provided the required notice of the predicate convictions on which the repeater status was based. State v. Stynes, 2003 WI 65, 262 Wis. 2d 335, 665 N.W.2d 115, 02-1143.

The State's use of a Consolidated Court Automation Programs (CCAP) report as evidence of a conviction did not constitute prima facie proof of that conviction. State v. Bonds, 2006 WI 83, 292 Wis. 2d 344, 717 N.W.2d 133, 05-0948. But see also State v. LaCount, 2008 WI 59, 310 Wis. 2d 85, 750 N.W.2d 780, 06-0672.

Evidence of repeater status may be submitted any time following the jury verdict up until the actual sentencing. State v. Kashney, 2008 WI App 164, 314 Wis. 2d 623, 761 N.W.2d 672, 07-2687.