Wis JI-Criminal SM-36

The following is suggested as a framework for deciding whether or not a defendant

should receive alternative disposition under § 973.015(1m)(a)1.2

AT THE TIME OF SENTENCING,3 THE COURT SHALL, IF REQUESTED

BY THE DEFENDANT OR DEFENDANT'S COUNSEL, AND MAY, ON THE

COURT'S OWN MOTION, DETERMINE WHETHER THE DEFENDANT

SHOULD BE AFFORDED SPECIAL DISPOSITION UNDER § 973.015.

I. An Offender is Eligible for § 973.015(1m)(a)1. Disposition if:

A. The offender was under the age of 25 at the time the offense was committed;

B. The offense is

1. a misdemeanor

2. a Class H felony and

a. the person has not been convicted of a prior felony, and

b. the felony is not a violent offense as defined in s. 301.048(2)(bm), and

c. the felony is not a violation of s. 940.32, s. 948.03(2), (3), or (5)(a)1., 2.,

3., or 4., or of s. 948.095.

3. a Class I felony and

a. the person has not been convicted of a prior felony, and

b. the felony is not a violent offense as defined in s. 301.048(2)(bm), and

c. the felony is not a violation of s. 948.23(1)(a)

C. The court determines that the offender will benefit and society will not be harmed

by the disposition.4

II. Ordering Special Disposition under § 973.015(1m)(a)1.

If the sentencing judge determines that special disposition under § 973.015(1m)(a)1.

is appropriate, the judge should state the finding on the record as follows:

“The court finds that the defendant has been convicted of an offense for which

the maximum penalty is imprisonment for six years or less and that the defendant

was under age 25 at the time the offense was committed. The court also finds that

the defendant will benefit and that society will not be harmed by special

disposition under § 973.015(1m)(a)1.”

“THEREFORE IT IS ORDERED, pursuant to § 973.015(1m)(a)1., that upon

successful completion5 of the sentence imposed, as evidenced by receipt by this court

(of payment of the fine and costs) (of a certificate of discharge from the (detaining)

(probationary) (authority)), the clerk of court shall expunge6 the record without further

order of this court.”

III. Rejecting Special Disposition under § 973.015(1m)(a)1.

If the defendant has requested special disposition under § 973.015(1m)(a)1. and the

judge determines that the disposition is not appropriate, the judge should make a specific

statement on the record that the disposition was considered and state the reasons for

rejecting it:

“Special disposition available under Wis. Stat. § 973.015(1m)(a)1.has been

considered. The court has determined that such disposition is not appropriate because (the

offender will not benefit because (specify) (and) (society will be harmed because

(specify)).”