2015 Wisconsin Statutes & Annotations
973. Sentencing.
973.13 Excessive sentence, errors cured.

973.13  Excessive sentence, errors cured. In any case where the court imposes a maximum penalty in excess of that authorized by law, such excess shall be void and the sentence shall be valid only to the extent of the maximum term authorized by statute and shall stand commuted without further proceedings.

973.13 Annotation This section caps the length of a sentence reduced thereby, but it does not address other aspects or conditions of sentencing. The sentencing court may resentence the defendant if the new sentence is permitted by the law. State v. Holloway, 202 Wis. 2d 694, 551 N.W.2d 841 (Ct. App. 1996), 95-2575.

973.13 Annotation This section commands that all sentences in excess of that authorized by law be declared void, including the repeater portion of a sentence. Prior postconviction motions that failed to challenge the validity of the sentence do not bar seeking relief from faulty repeater sentences. State v. Flowers, 221 Wis. 2d 20, 586 N.W.2d 175 (Ct. App. 1998), 97-3682.

973.13 Annotation To allow the imposition of an unauthorized criminal penalty on the basis of waiver ignores the dictate of this section to alleviate all maximum penalties imposed in excess of that prescribed by law. State v. Hanson, 2001 WI 70, 244 Wis. 2d 405, 628 N.W.2d 759, 99-3142.

973.13 Annotation Flowers holds that neither Escalona-Naranjo nor s. 974.06 (4) bar motions challenging the foundation for the convictions sustaining the habitual criminal status that are properly brought under this section. However, this section as it pertains to sentencing a repeat offender applies only when the state fails to prove the prior conviction necessary to establish the habitual criminal status or when the penalty given is longer than permitted by law for a repeater. State v. Mikulance, 2006 WI App 69, 291 Wis. 2d 494, 713 N.W.2d 160, 05-1120.

973.13 Annotation This section was inapplicable when the defendant was erroneously informed at the time of his plea that his maximum exposure was 19 1/2 years, but was sentenced to the actual maximum of 23 1/2 years. The statute speaks to courts imposing "a maximum penalty in excess of that authorized by law," and validating the length of a sentence by commuting it "only to the extent of the maximum term authorized by statute." In this case the defendant initially received the maximum penalty and his sentence was commuted not to "the amount authorized by law" or "the maximum term authorized by statute," but rather to an amount the defendant misunderstood to be his maximum exposure based on errors surrounding his plea. State v. Finley, 2015 WI App 79, ___ Wis. 2d ___, ___ N.W.2d ___, 14-2488.