973.05 Fines.
(1) When a defendant is sentenced to pay a fine, the court may grant permission for the payment of the fine, plus costs, fees, and surcharges imposed under ch. 814, to be made within a period not to exceed 60 days. If no such permission is embodied in the sentence, the fine, plus costs, fees, and surcharges imposed under ch. 814, shall be payable immediately.
(1m) If the court orders payment of restitution and a fine and related payments under s. 973.20, the court may authorize a payment period in excess of the limit imposed under sub. (1).
(2) When a defendant is sentenced to pay a fine and is also placed on probation, the court may make the payment of the fine, plus costs, fees, and surcharges imposed under ch. 814, a condition of probation.
(2m) Payments under this section shall be applied as applicable in the following order:
(a) To payment of the penalty surcharge until paid in full.
(b) To payment of the jail surcharge until paid in full.
(c) To payment of part A of the crime victim and witness assistance surcharge imposed before July 2, 2013, until paid in full.
(d) To payment of part B of the crime victim and witness assistance surcharge imposed before July 2, 2013, until paid in full.
(dg) To payment of part C of the crime victim and witness assistance surcharge imposed before July 2, 2013, until paid in full.
(dr) To payment of the crime victim and witness surcharge imposed on or after July 2, 2013, until paid in full.
(e) To payment of the crime laboratories and drug law enforcement surcharge until paid in full.
(f) To payment of the deoxyribonucleic acid analysis surcharge until paid in full.
(fm) To payment of the child pornography surcharge until paid in full.
(g) To payment of the drug abuse program improvement surcharge until paid in full.
(gm) To payment of the drug offender diversion surcharge until paid in full.
(h) To payment of the driver improvement surcharge until paid in full.
(i) To payment of the truck driver education surcharge until paid in full.
(j) To payment of the domestic abuse surcharge until paid in full.
(jm) To payment of the global positioning system tracking surcharge until paid in full.
(k) To payment of the consumer protection surcharge until paid in full.
(L) To payment of the natural resources surcharge until paid in full.
(m) To payment of the natural resources restitution surcharge until paid in full.
(n) To payment of the environmental surcharge until paid in full.
(o) To payment of the wild animal protection surcharge until paid in full.
(om) To the payment of the wildlife violator compact surcharge until paid in full.
(p) To payment of the weapons surcharge until paid in full.
(q) To payment of the uninsured employer surcharge until paid in full.
(r) To payment of the enforcement surcharge under s. 253.06 (4) (c) until paid in full.
(rm) To the payment of the ignition interlock surcharge under s. 343.301 (5) until paid in full.
(rv) To payment of the crime prevention funding board surcharge until paid in full.
(s) To payment of the fine and the costs and fees imposed under ch. 814.
(3)
(a) In lieu of part or all of a fine imposed by a court, the court may stay the execution of part or all of the sentence and provide that the defendant perform community service work under pars. (b) and (c). Any applicable driver improvement surcharge under s. 346.655, any safe ride program surcharge under s. 346.657, or any domestic abuse surcharge under s. 973.055 shall be imposed under ch. 814 regardless of whether part or all of the sentence has been stayed. If the defendant fails to comply with the community service order, the court shall order the defendant brought before the court for imposition of sentence. If the defendant complies with the community service order, he or she has satisfied that portion of the sentence.
(b) The court may require that the defendant perform community service work for a public agency or a nonprofit charitable organization. The number of hours of work required may not exceed what would be reasonable considering the seriousness of the offense and any other offense which is read into the record at the time of conviction. An order may only apply if agreed to by the defendant and the organization or agency. The court shall ensure that the defendant is provided a written statement of the terms of the community service order and that the community service order is monitored.
(c) Any organization or agency acting in good faith to which a defendant is assigned pursuant to an order under this subsection has immunity from any civil liability in excess of $25,000 for acts or omissions by or impacting on the defendant.
(4) If a defendant fails to pay the fine, surcharge, costs, or fees within the period specified under sub. (1) or (1m), the court may do any of the following:
(a) Issue a judgment for the unpaid amount and direct the clerk to file and docket a transcript of the judgment, without fee. If the court issues a judgment for the unpaid amount, the court shall send to the defendant at his or her last-known address written notification that a civil judgment has been issued for the unpaid fine, surcharge, costs, or fees. The judgment has the same force and effect as judgments docketed under s. 806.10.
(b) Issue an order assigning not more than 25 percent of the defendant's commissions, earnings, salaries, wages, pension benefits, benefits under ch. 102, and other money due or to be due in the future to the clerk of circuit court for payment of the unpaid fine, surcharge, costs, or fees. In this paragraph, “employer" includes the state and its political subdivisions.
(c) Issue an order assigning lottery prizes won by a defendant whose name is on the list supplied to the clerk of circuit court under s. 565.30 (5r) (a), for payment of the unpaid fine, surcharge, costs, or fees.
(4m) As provided in s. 767.75 (4), a child support withholding assignment under state law has priority over any assignment or order under sub. (4).
(5)
(a)
1. Upon entry of the assignment under sub. (4) (b), unless the court finds that income withholding is likely to cause the defendant irreparable harm, the court shall provide notice of the assignment by regular mail to the last-known address of the person from whom the defendant receives or will receive money. If the clerk of circuit court does not receive the money from the person notified, the court shall provide notice of the assignment to any other person from whom the defendant receives or will receive money. Notice of an assignment under sub. (4) (b) shall inform the intended recipient that, if a prior assignment under sub. (4) (b) has been received relating to the same defendant, the recipient is required to notify the clerk of circuit court that sent the subsequent notice of assignment that another assignment has already been received. A notice of assignment shall include a form permitting the recipient to designate on the form that another assignment has already been received.
2. If, after receiving the annual list under s. 565.30 (5r) (a), the clerk of circuit court determines that a person identified in the list may be subject to an assignment under sub. (4) (c), the clerk shall inform the court of that determination. If the court issues an order under sub. (4) (c), the clerk of circuit court shall send the notice of that order to the administrator of the lottery division of the department of revenue, including a statement of the amount owed under the judgment and the name and address of the person owing the judgment. The court shall notify the administrator of the lottery division of the department of revenue when the judgment that is the basis of the assignment has been paid in full.
3. Notice under this paragraph may be a notice of the court, a copy of the executed assignment or a copy of that part of the court order which directs payment.
(b) For each payment made under the assignment under sub. (4) (b), the person from whom the defendant under the order receives money shall receive an amount equal to the person's necessary disbursements, not to exceed $3, which shall be deducted from the money to be paid to the defendant.
(c) A person who receives notice of the assignment under sub. (4) (b) shall withhold the amount specified in the notice from any money that person pays to the defendant later than one week after receipt of the notice of assignment. Within 5 days after the day on which the person pays money to the defendant, the person shall send the amount withheld to the clerk of circuit court of the jurisdiction providing notice. If the person has already received a notice of an assignment under sub. (4) (b), the person shall retain the later assignment and withhold the amount specified in that assignment after the last of any prior assignments is paid in full. Within 10 days of receipt of the later notice, the person shall notify the clerk of circuit court that sent the notice that the person has received a prior notice of an assignment under sub. (4) (b). Section 241.09 does not apply to assignments under this section.
(d) If after receipt of notice of assignment under par. (a) 1. the person from whom the defendant receives money fails to withhold the money or send the money to the clerk of circuit court as provided in this subsection, the person may be proceeded against under the principal action under ch. 785 for contempt of court or may be proceeded against under ch. 778 and be required to forfeit not less than $50 nor more than an amount, if the amount exceeds $50, that is equal to 1 percent of the amount not withheld or sent.
(e) If an employer who receives notice of an assignment under sub. (4) (b) fails to notify the clerk of circuit court within 10 days after an employee is terminated or otherwise temporarily or permanently leaves the employer's employment, the employer may be proceeded against under the principal action under ch. 785 for contempt of court.
(f) Compliance by the person from whom the defendant receives money with the order operates as a discharge of the person's liability to the defendant as to that portion of the defendant's commission, earnings, salaries, wages, benefits or other money so affected.
(g) No employer may use an assignment under sub. (4) (b) as a basis for the denial of employment to a defendant, the discharge of an employee or any disciplinary action against an employee. An employer who denies employment or discharges or disciplines an employee in violation of this paragraph may be fined not more than $500 and may be required to make full restitution to the aggrieved person, including reinstatement and back pay. Restitution shall be in accordance with s. 973.20. An aggrieved person may apply to the district attorney or to the department of workforce development for enforcement of this paragraph.
(i)
1. In this paragraph, “ payroll period" has the meaning given in s. 71.63 (5).
2. If after an assignment is in effect the defendant's employer changes its payroll period, or the defendant changes employers and the new employer's payroll period is different from the former employer's payroll period, the clerk may, unless otherwise ordered by a judge, amend the withholding assignment or order so that all of the following apply:
a. The withholding frequency corresponds to the new payroll period.
b. The amounts to be withheld reflect the adjustment to the withholding frequency.
(j) The clerk shall provide notice of the amended withholding assignment or order under par. (i) by regular mail to the defendant's employer and to the defendant.
History: 1977 c. 29; 1979 c. 34, 111; 1981 c. 20, 88, 352; 1983 a. 27, 535; 1985 a. 36; 1987 a. 27, 339, 398; 1989 a. 64, 107, 359; 1991 a. 39; 1993 a. 16; 1995 a. 227, 438, 448; 1997 a. 3, 27, 35, 148, 248; 1999 a. 9, 32; 2001 a. 16, 56, 105; 2003 a. 139; 2005 a. 25, 149, 282, 433; 2005 a. 443 s. 265; 2007 a. 20, 97; 2009 a. 28, 100; 2011 a. 32, 266; 2013 a. 20; 2015 a. 55.
Sections 973.05 (1), permitting a delay of 60 days for payment of a fine, and 973.07, providing commitment to jail for nonpayment, are constitutional since the court may stay the sentence and put the defendant on probation. The burden of proving inability to pay is on the defendant. State ex rel. Pedersen v. Blessinger, 56 Wis. 2d 286, 201 N.W.2d 778 (1972).
Trial courts are encouraged to use the installment method when dealing with indigent defendants; the installment period may exceed 60 days. Will v. State, 84 Wis. 2d 397, 267 N.W.2d 357 (1978).
After the defendant raised the issue of ability to pay a fine in a postconviction motion, a hearing was necessary to avoid an unconstitutional application of the statutes. The court should consider: 1) the financial resources of the defendant and the burden that payment will impose; 2) the ability of the defendant to pay on an installment basis or on other conditions to be fixed by the court; 3) the extent to which payment will interfere with the ability of the defendant to make any ordered restitution or reparation to the victim; and 4) whether there are particular reasons that make a fine appropriate as a deterrent or corrective measure. State v. Kuechler, 2003 WI App 245, 268 Wis. 2d 192, 673 N.W.2d 335, 02-1205.
When a court's sentencing colloquy supports both imprisonment and a fine, no separate explanation of the fine is needed. State v. Vesper, 2018 WI App 31, 382 Wis. 2d 207, 912 N.W.2d 418, 17-0173.
A court cannot impose probation or order a defendant to perform community work in lieu of imposing a statutorily required minimum jail sentence. 71 Atty. Gen. 41.