939.32 Attempt.
(1) Generally. Whoever attempts to commit a felony or a crime specified in s. 940.19, 940.195, 943.20, or 943.74 may be fined or imprisoned or both as provided under sub. (1g), except:
(a) Whoever attempts to commit a crime for which the penalty is life imprisonment is guilty of a Class B felony.
(bm) Whoever attempts to commit a Class I felony, other than one to which a penalty enhancement statute listed in s. 973.01 (2) (c) 2. a. or b. is being applied, is guilty of a Class A misdemeanor.
(c) Whoever attempts to commit a crime under ss. 940.42 to 940.45 is subject to the penalty for the completed act, as provided in s. 940.46.
(cm) Whoever attempts to commit a crime under s. 941.21 is subject to the penalty provided in that section for the completed act.
(cr) Whoever attempts to commit a crime under s. 948.055 (1) is subject to the penalty for the completed act, as provided in s. 948.055 (2).
(d) Whoever attempts to commit a crime under s. 948.07 is subject to the penalty provided in that section for the completed act.
(de) Whoever attempts to commit a crime under s. 948.075 (1r) is subject to the penalty provided in that subsection for the completed act.
(e) Whoever attempts to commit a crime under s. 948.605 (3) (a) is subject to the penalty provided in that paragraph for the completed act.
(f) Whoever attempts to commit a crime under s. 946.79 is subject to the penalty provided in that section for the completed act.
(g) Whoever attempts to commit a crime under s. 101.10 (3) (e) is subject to the penalty for the completed act, as provided in s. 101.10 (4) (b).
(1g) Maximum penalty. The maximum penalty for an attempt to commit a crime that is punishable under sub. (1) (intro.) is as follows:
(a) The maximum fine is one-half of the maximum fine for the completed crime.
(b)
1. If neither s. 939.62 (1) nor s. 961.48 is being applied, the maximum term of imprisonment is one-half of the maximum term of imprisonment, as increased by any penalty enhancement statute listed in s. 973.01 (2) (c) 2. a. and b., for the completed crime.
2. If either s. 939.62 (1) or 961.48 is being applied, the maximum term of imprisonment is determined by the following method:
a. Multiplying by one-half the maximum term of imprisonment, as increased by any penalty enhancement statute listed in s. 973.01 (2) (c) 2. a. and b., for the completed crime.
b. Applying s. 939.62 (1) or 961.48 to the product obtained under subd. 2. a.
(1m) Bifurcated sentences. If the court imposes a bifurcated sentence under s. 973.01 (1) for an attempt to commit a crime that is punishable under sub. (1) (intro.), the following requirements apply:
(a) Maximum term of confinement for attempt to commit classified felony.
1. Subject to the minimum term of extended supervision required under s. 973.01 (2) (d), if the crime is a classified felony and neither s. 939.62 (1) nor s. 961.48 is being applied, the maximum term of confinement in prison is one-half of the maximum term of confinement in prison specified in s. 973.01 (2) (b), as increased by any penalty enhancement statute listed in s. 973.01 (2) (c) 2. a. and b., for the classified felony.
2. Subject to the minimum term of extended supervision required under s. 973.01 (2) (d), if the crime is a classified felony and either s. 939.62 (1) or 961.48 is being applied, the court shall determine the maximum term of confinement in prison by the following method:
a. Multiplying by one-half the maximum term of confinement in prison specified in s. 973.01 (2) (b), as increased by any penalty enhancement statutes listed in s. 973.01 (2) (c) 2. a. and b., for the classified felony.
b. Applying s. 939.62 (1) or 961.48 to the product obtained under subd. 2. a.
(b) Maximum term of extended supervision for attempt to commit classified felony. The maximum term of extended supervision for an attempt to commit a classified felony is one-half of the maximum term of extended supervision for the completed crime under s. 973.01 (2) (d).
(c) Maximum term of confinement for attempt to commit unclassified felony or misdemeanor. The court shall determine the maximum term of confinement in prison for an attempt to commit a crime other than a classified felony by applying s. 973.01 (2) (b) 10. to the maximum term of imprisonment calculated under sub. (1g) (b).
(2) Misdemeanor computer crimes. Whoever attempts to commit a misdemeanor under s. 943.70 is subject to:
(a) A Class D forfeiture if it is the person's first violation under s. 943.70.
(b) A Class C forfeiture if it is the person's 2nd violation under s. 943.70.
(c) A Class B forfeiture if it is the person's 3rd violation under s. 943.70.
(d) A Class A forfeiture if it is the person's 4th or subsequent violation under s. 943.70.
(2m) Misdemeanor crimes against financial institution. Whoever attempts to commit a crime under s. 943.81, 943.82 (1), 943.83, or 943.84 that is a Class A misdemeanor under s. 943.91 (1) is subject to the penalty for a Class B misdemeanor.
(3) Requirements. An attempt to commit a crime requires that the actor have an intent to perform acts and attain a result which, if accomplished, would constitute such crime and that the actor does acts toward the commission of the crime which demonstrate unequivocally, under all the circumstances, that the actor formed that intent and would commit the crime except for the intervention of another person or some other extraneous factor.
History: 1977 c. 173; 1981 c. 118; 1983 a. 438; 1987 a. 332; 1989 a. 336; 1991 a. 17; 1993 a. 98, 486; 1997 a. 295; 2001 a. 91, 109; 2003 a. 36, 321; 2005 a. 14, 212; 2009 a. 180; 2011 a. 284; 2013 a. 165 s. 115.
There is no crime of “attempted homicide by reckless conduct" since the completed offense does not require intent while any attempt must demonstrate intent. State v. Melvin, 49 Wis. 2d 246, 181 N.W.2d 490 (1970).
Attempted 1st-degree murder was shown when only the fact of the gun misfiring and the action of the intended victim prevented completion of the crime. Austin v. State, 52 Wis. 2d 716, 190 N.W.2d 887 (1971).
The victim's kicking of the defendant in the mouth and other resistance was a valid extraneous factor preventing the completion of a crime, an essential requirement for the crime of attempted rape. Adams v. State, 57 Wis. 2d 515, 204 N.W.2d 657 (1973).
The screams and struggles of an intended rape victim were an effective intervening extrinsic force not under the defendant's control. Leach v. State, 83 Wis. 2d 199, 265 N.W.2d 495 (1978).
The failure to consummate the crime is not an essential element of criminal attempt under sub. (2). Berry v. State, 90 Wis. 2d 316, 280 N.W.2d 204 (1979).
The intervention of an extraneous factor is not an essential element of criminal attempt. Hamiel v. State, 92 Wis. 2d 656, 285 N.W.2d 639 (1979).
To prove attempt, the state must prove intent to commit a specific crime accompanied by sufficient acts to demonstrate unequivocally that it was improbable that the accused would have desisted of his or her own free will. State v. Stewart, 143 Wis. 2d 28, 420 N.W.2d 44 (1988).
Subs. (1) and (2) enumerate all offenses that may be prosecuted as attempts. State v. Cvorovic, 158 Wis. 2d 630, 462 N.W.2d 897 (Ct. App. 1990).
The meaning of “have an intent to" in sub. (3) should be defined and interpreted in relation to all criminal statutes. State v. Weeks, 165 Wis. 2d 200, 477 N.W.2d 642 (Ct. App. 1991).
When a sentence for an attempted crime is subject to repeater enhancement, the maximum penalty for the underlying crime is halved under sub. (1), then the enhancer is added to that penalty. State v. Bush, 185 Wis. 2d 716, 519 N.W.2d 645 (Ct. App. 1994).
The intervention of an extraneous factor that prevents the commission of a crime is irrelevant to an attempt to commit the crime unless the factor may negate the intent to commit the crime. That a defendant believed he was acquiring stolen property when the property was not actually stolen did not prevent the prosecution of the defendant for attempt to receive stolen property. State v. Kordas, 191 Wis. 2d 124, 528 N.W.2d 483 (Ct. App. 1995).
Attempted felony murder, s. 940.03, does not exist. Attempt requires intent, and the crime of felony murder is complete without specific intent. State v. Briggs, 218 Wis. 2d 61, 579 N.W.2d 783 (Ct. App. 1998), 97-1558.
The conduct element of sub. (3) is satisfied when the accused engages in conduct that demonstrates that only a circumstance beyond the accused's control could prevent the crime; that it has become too late to repent and withdraw. State v. Henthorn, 218 Wis. 2d 526, 581 N.W.2d 544 (Ct. App. 1998), 97-2235.
Some crimes include attempt and cannot be combined with the general attempt statute. One cannot attempt to attempt to cause. State v. DeRango, 229 Wis. 2d 1, 599 N.W.2d 27 (Ct. App. 1999), 98-0642.
Neither Melvin nor Briggs purport to establish a general rule or address whether possession crimes may be charged as attempted crimes. There is no general rule that a crime may be charged as an attempt only when the crime has intent as an element. Unlike crimes with no state of mind element, the felon in possession of a firearm offense requires proof of knowledge. This makes the offense amenable, even under Briggs, to be charged as an attempted crime. State v. Henning, 2013 WI App 15, 346 Wis. 2d 246, 828 N.W.2d 235, 10-2449.