A client calls because his agent told him there is going to be a revocation hearing, and the first question is always some version of when do I see the judge. The answer is that in all likelihood he does not. A Wisconsin probation, parole, or extended-supervision revocation is not a court proceeding at all. It is an administrative hearing, held before an administrative law judge employed by the Division of Hearings and Appeals in the Department of Administration — a different agency from the Department of Corrections that brought the case, and a different branch of government from the circuit court that put him on supervision in the first place.
That structural fact drives nearly everything that follows: the burden of proof, the rules of evidence, the deadlines, who pays for a lawyer, and what happens on appeal. It is also why so much of what people believe about revocation is wrong. The criminal case they remember had a jury, a prosecutor who had to prove things beyond a reasonable doubt, and a judge who ran the room. None of those three is present here.
Three different kinds of exposure, and you need to know which one is yours
Before anything else, establish what revocation would actually cost. There are three possibilities, and they are not interchangeable.
Probation with a withheld sentence. Under Wis. Stat. § 973.09 (1) (a) the court may either withhold sentence or impose a sentence and stay its execution. If sentence was withheld, no number exists yet. On revocation, § 973.10 (2) (a) directs the Department to “order the probationer brought before the court for sentence which shall then be imposed without further stay.” The judge sentences for the first time, with the full statutory range still available and the revocation conduct now part of the record.
Probation with an imposed and stayed sentence. Here the number already exists. Under § 973.10 (2) (b), if the probationer has already been sentenced, the Department orders him to prison and “the term of the sentence shall begin on the date the probationer enters the prison.” There is no new sentencing hearing and no discretion left to exercise. The stayed sentence simply takes effect.
Extended supervision. For anyone serving a bifurcated sentence under § 973.01, revocation of extended supervision is governed by § 302.113 (9). This is the piece that surprises people most, so read it carefully: under § 302.113 (9) (am), if extended supervision is revoked, it is the reviewing authority — the Division of Hearings and Appeals, or the Department of Corrections if the hearing is waived — that “shall order the person to be returned to prison for any specified period of time that does not exceed the time remaining on the bifurcated sentence.” The sentencing judge does not set the reconfinement period. An administrative law judge does, applying the criteria in Wis. Admin. Code § HA 2.05 (7) (f): the nature and severity of the original offense, the institutional conduct record, the conduct while on supervision, and the amount of reconfinement necessary to protect the public, prevent undue depreciation of the seriousness of the violation, or provide confined treatment.
Time remaining is defined by the statute, not by arithmetic you do yourself: the total length of the bifurcated sentence, less confinement served before release to extended supervision, less all confinement served for previous revocations. If the reconfinement ordered is less than that remaining time, § 302.113 (9) (b) and (c) return the person to extended supervision afterward, still subject to the conditions, for whatever extended-supervision portion is left. (For how initial confinement and extended supervision are set in the first place, see our post on how sentencing works in Wisconsin.)
Most violations never become revocations
This is the part worth internalizing before panic sets in. Wis. Admin. Code § DOC 331.03 requires the Department to investigate the facts underlying an alleged violation and to meet with the offender to discuss it within a reasonable time. After that, the agent and supervisor must choose one of three paths: take no action because the allegation is unfounded; resolve it short of revocation; or recommend revocation.
The middle path is explicitly enumerated in § DOC 331.03 (2) (b), and it is broader than clients expect. It includes a review of the rules of supervision followed by changes where necessary or desirable — including return to court — a counseling session, a formal or informal warning, or implementation of an alternative to revocation. The whole architecture assumes that most rule violations are handled inside the supervision relationship and never reach a hearing room.
Which means the most valuable work in a revocation case is often done before there is a case: engaging the agent, documenting treatment compliance, lining up employment and residence, and putting a credible alternative on the table while the agent still has the discretion to accept one.
The hold, and how long it can last
An offender can be taken into custody and detained on the agent’s authority alone. Section DOC 328.27 (2) lists the permissible purposes: investigation of an alleged violation, determining whether to commence revocation proceedings, discipline, preventing a possible violation, or pending placement in an alternative-to-revocation program. Under § DOC 328.27 (1), an agent shall order custody where the offender is alleged to have been involved in assaultive or dangerous conduct.
The time limits in § DOC 328.27 (3) are cumulative and tiered: an agent may authorize up to five working days, a supervisor may approve another five, a regional chief another five, and the administrator may authorize detention beyond those limits. Separately, § DOC 331.05 (7) governs detention pending the final hearing — decided by the magistrate who held the preliminary hearing, or by a supervisor where no preliminary hearing was required — weighing dangerousness, flight risk, the likelihood of further violations, and the length of the term to be served on revocation. Section DOC 331.05 (7) (c) is blunt about the consequence: a detained offender is not eligible for release, including temporary release for work.
There is one outer boundary worth knowing. Where a client is detained in a county jail or other county facility pending disposition, § HA 2.05 (4) (a) requires the Division to begin a hearing within fifty calendar days of the detention. If the client is not detained, the standard is only that the hearing begin within a reasonable time after the hearing request is received.
The ninety-day sanction, and the signature that triggers it
Section 973.10 (2s) permits the Department, where a probationer signs a statement admitting a violation, to confine him as a sanction for up to ninety days in a regional detention facility or, with the sheriff’s approval, in a county jail. Section DOC 328.27 (7) carries the same mechanism across the administrative code for offenders on probation, parole, or extended supervision, conditioned on a written admission and approval by the regional chief or designee, and capped at ninety days.
Sometimes that is a genuinely good outcome — ninety days in a county jail instead of a revocation that sends someone to prison for years. Sometimes it is a waiver of a hearing the Department would have lost. The distinction turns on the strength of the evidence and on what the Department would be asking for if the case went forward, and it is not a determination to make alone in a jail interview room.
The preliminary hearing: probable cause, before a magistrate
When revocation is initiated, § DOC 331.05 (1) requires a preliminary hearing before a “magistrate” to determine whether there is probable cause to believe a rule or condition was violated. The term is a defined one, and it is not what it sounds like. Under § DOC 331.02 (1), a magistrate is a supervisor or supervisor’s designee who has not been directly involved in the decision to initiate revocation — a Department employee, not a judicial officer. The guarantee is structural separation within the agency, not a hearing in court.
Section DOC 331.05 (2) lists six circumstances in which no preliminary hearing need be held: written waiver; a signed written statement admitting a violation; a probable-cause finding in a felony matter with a bindover for the same or similar conduct; an adjudication of guilt by a court for the same or similar conduct; the offender not being held in custody on the Department’s authority; or a probable-cause finding for the same or similar conduct by a court or magistrate in another state. The third and fourth are the common ones. A client bound over at a felony preliminary examination has, without being told so, forfeited the preliminary stage of his revocation.
Timing is tight. Under § DOC 331.05 (4), the hearing takes place no sooner than one working day and no later than five working days after the offender receives the notice, as close as feasible to the area where the alleged violation occurred.
The right to counsel at this stage is qualified rather than absolute. Section DOC 331.05 (5) requires postponement for representation only where the offender, having been informed of the right, requests an attorney on a timely and plausible claim that he did not commit the violation, and the magistrate concludes either that the complexity of the issues will make it difficult for him to present his case or that he is otherwise not capable of speaking effectively for himself. Wisconsin’s Supreme Court said the same thing more than fifty years ago: the right to counsel at a preliminary revocation hearing is discretionary, measured against what due process requires in the particular case. State ex rel. Hawkins v. Gagnon, 64 Wis. 2d 394, 219 N.W.2d 252 (1974).
If probable cause is found, § DOC 331.05 (6) (c) directs that the Division of Hearings and Appeals be contacted to schedule the final hearing. If it is not found, the revocation process terminates — but, under § DOC 331.05 (6) (d), without prejudice, and § DOC 331.05 (8) (b) allows proceedings to start again on new information.
The final hearing: what the Department has to prove, and what it gets to use
The final revocation hearing is conducted under ch. HA 2 of the administrative code, by cross-reference from § DOC 331.06. Notice goes out within five days of the Division’s receipt of the hearing request and must include, under § HA 2.05 (1), the date, time, and place; the conduct alleged and the rule or condition said to have been violated; a statement of hearing rights; and — unless confidential or dangerous to a witness — a list of the potential evidence and witnesses. In extended-supervision cases, § HA 2.05 (1) (g) requires the notice to state the Department’s recommended period of reconfinement. Read that number first. It is the Department’s opening position and it frames the whole hearing.
The rights at the hearing are listed in § HA 2.05 (3): to attend in person or by electronic means, to deny the allegation, to be heard and present witnesses, to present documentary evidence, to question witnesses, to the assistance of counsel, to waive the hearing, and to receive a written decision stating the reasons for it based on the evidence presented.
Now the parts that differ most sharply from a criminal trial, all in § HA 2.05 (6):
- The standard is a preponderance of the evidence. Paragraph (f) places the burden on the Department to establish a violation by a preponderance — not beyond a reasonable doubt. The same paragraph provides that a violation is proven by a judgment of conviction arising from the underlying conduct.
- Hearsay is admissible. Paragraph (d) says the administrative law judge may accept it. Paragraph (e) provides that the rules of evidence other than ch. 905 privileges do not apply, except that unduly repetitious or irrelevant questions may be excluded. In practice a police report can carry an allegation without the officer ever appearing.
- Evidence obtained unlawfully may still come in. Paragraph (c) states that evidence gathered by means not consistent with ch. DOC 328 or in violation of the law may be admitted. There is no suppression remedy here of the kind that exists in the criminal case. Where confrontation of an adverse witness is denied, however, the examiner must specifically find good cause, generally by balancing the probationer’s need to cross-examine against the State’s interest in denying confrontation. State ex rel. Simpson v. Schwarz, 2002 WI App 7, 250 Wis. 2d 214, 640 N.W.2d 527.
- The examiner is not a passive referee. Paragraph (g) permits the administrative law judge to take an active role in eliciting facts not raised by either side.
And then the provision that quietly decides more cases than any of the others:
Section HA 2.05 (6) (h): an alternative to revocation, or an alibi defense, will be considered only if the administrative law judge and the Department’s representative received notice of it at least five days before the hearing — unless the examiner allows shorter notice for cause. A treatment bed found the night before, a residential placement arranged the morning of the hearing, an alibi witness who surfaces at the door: all of it can be excluded not on the merits but on the notice rule. Every alternative has to be built and filed in advance.
The three questions, and the three findings that are required before revocation
Section HA 2.05 (7) (b) requires the administrative law judge to decide, in order: whether the client committed the conduct underlying the alleged violation; if so, whether that conduct constitutes a violation of the rules or conditions; and if so, whether revocation should result or whether there are appropriate alternatives to revocation.
The third question is the one that can be won after the first two are lost. The rule states that violation of a rule or condition is both a necessary and a sufficient ground for revocation — and then immediately limits it:
“Revocation may not be the disposition, however, unless the administrative law judge finds on the basis of the original offense and the intervening conduct of the client that: a. Confinement is necessary to protect the public from further criminal activity by the client; or b. The client is in need of correctional treatment which can most effectively be provided if confined; or c. It would unduly depreciate the seriousness of the violation if supervision were not revoked.”
Those three alternatives track the American Bar Association standards relating to probation that our Supreme Court adopted and applied in State ex rel. Plotkin v. DHSS, 63 Wis. 2d 535, 217 N.W.2d 641 (1974), and they are the heart of a contested revocation defense. A violation can be conceded and the case still won, by showing that none of the three findings can honestly be made — that the conduct was not dangerous, that the treatment need is being met in the community, and that an alternative short of prison answers the seriousness of what happened.
The examiner must also decide whether to toll any of the period between the violation and the order, subject to sentence credit under § 973.155, and whether the client is entitled to credit. Section DOC 328.25 governs tolling, and it includes a detail worth noting: if the offender is reinstated rather than revoked, time may be tolled only if the reinstatement order concludes that he did in fact violate.
An acquittal does not end it
This is the hardest thing to explain to a client and the most important. Section DOC 331.09 provides that revocation may proceed regardless of a concurrent criminal prosecution for the same conduct, and that an acquittal in the criminal case does not preclude revocation for the same or similar conduct. The reason is arithmetic rather than injustice: a jury that acquits has found the State failed to prove guilt beyond a reasonable doubt, which says nothing about whether the Department can prove the same conduct by a preponderance.
The converse timing problem is just as real. Statements made to an agent can be used at the revocation hearing, and a probationer can be compelled to answer self-incriminating questions — or face revocation for refusing — only where there is a grant of immunity rendering the testimony inadmissible in a criminal prosecution. State ex rel. Tate v. Schwarz, 2002 WI 127, 257 Wis. 2d 40, 654 N.W.2d 438. When a criminal charge and a revocation are running at the same time, the sequencing of what gets said, to whom, and under what protection is the case.
Appealing: ten days, then forty-five
The examiner’s written decision goes out within ten days of the hearing, extendable by five for cause, under § HA 2.05 (7) (h), and takes effect and becomes final ten days after issuance unless an appeal is filed. Section HA 2.05 (8) (a) gives the client, counsel, or the Department ten days from the date of the written decision to file a written appeal with the administrator of the Division, with arguments and supporting materials. A copy goes to the other party, who has seven days to respond; § HA 2.05 (8) (b) permits dismissal of an appeal where the other party does not receive a timely copy. The administrator may modify, sustain, reverse, or remand, and under § HA 2.05 (9) (b) issues a written decision within twenty-one days of receipt of the appeal unless the time is extended.
Beyond that, judicial review is by certiorari, and only by certiorari. Section 302.113 (9) (g) says so expressly for extended supervision. The petition goes to the circuit court of conviction — though not necessarily the same branch. Drow v. Schwarz, 225 Wis. 2d 362, 592 N.W.2d 623 (1999).
The deadline is forty-five days, and it is short enough to lose a case on. Section 893.735 (2) bars a certiorari action brought on behalf of a prisoner unless commenced within forty-five days after the cause of action accrues, running from the date of the decision or disposition, with an extension available for days the prisoner proves elapsed before actual notice. Our Supreme Court has held that persons seeking certiorari review of a probation revocation are prisoners subject to that forty-five-day limit. State ex rel. Cramer v. Wisconsin Court of Appeals, 2000 WI 86, 236 Wis. 2d 473, 613 N.W.2d 591.
Note also that the record may not exist in usable form unless someone asks for it. Under § 973.10 (4), the Division records the testimony but prepares a written transcript only at the request of a judge who has granted a petition for judicial review — and each hearing notice must say that anyone who wants a written transcript may record the hearing at his own expense.
Who pays for the lawyer
Clients assume the public defender covers revocation the way it covers a criminal charge. It does not, automatically. Section 977.05 (6) (i) provides that the State Public Defender may not provide legal services or assign counsel in probation revocation proceedings unless both of two things are true: the probationer is contesting the revocation, and either the Department seeks to have him imprisoned on revocation or a stayed sentence of imprisonment will be imposed. Section 977.05 (6) (h) imposes the parallel two-part limit for parole and extended-supervision revocations.
Read together with the rest of the scheme, the consequence is practical and often overlooked: a client who intends to concede the violation and argue only about the disposition, or whose exposure is county jail rather than prison, may fall outside appointed representation entirely. That is precisely the case in which the alternative-to-revocation work, and the five-day notice rule that governs it, decide the outcome.
The constitutional floor underneath all of this was set in Morrissey v. Brewer, 408 U.S. 471 (1972), and Gagnon v. Scarpelli, 411 U.S. 778 (1973). Wisconsin had reached much the same place on its own: revocation without a hearing is a denial of due process, Hahn v. Burke, 430 F.2d 100 (1970); the Department must hold a hearing and make a record sufficient for a reviewing court to determine whether it acted arbitrarily, State ex rel. Johnson v. Cady, 50 Wis. 2d 540, 185 N.W.2d 306 (1971); and retained or appointed counsel must be allowed to participate, Gunsolus v. Gagnon, 454 F.2d 416 (1971).
What to do in the first forty-eight hours
Get the notice and read the rule it names. Revocation cases are won and lost on the specific rule or condition alleged, not on the general sense that someone has been doing badly.
Find out whether there is a hold, and on whose authority, and what the stated purpose is under § DOC 328.27 (2). A hold for investigation and a hold pending revocation are different postures with different time limits.
Do not sign anything admitting a violation until someone has told you what the admission does. It can waive the preliminary hearing under § DOC 331.05 (2) (b), it can trigger the ninety-day sanction under § 973.10 (2s), and in a waived-hearing posture the reviewing authority becomes the Department itself rather than the Division of Hearings and Appeals.
Start building the alternative immediately, and get it noticed. Five days before the hearing is a real deadline, and treatment admissions and residential placements do not materialize on demand.
And if a decision has already issued against you, calendar both clocks the same day: ten days to the administrator, forty-five days to the circuit court. Neither forgives a late filing on the ground that you did not know about it.
Talk to a New Berlin criminal defense lawyer
Carson Law Office represents people in probation, parole, and extended-supervision revocation proceedings in New Berlin, Waukesha County, Milwaukee, West Allis, Wauwatosa, and the surrounding communities — at preliminary hearings, at final hearings before the Division of Hearings and Appeals, in negotiating alternatives to revocation, and on certiorari review. If you or someone in your family has been served with a revocation notice or is sitting on a hold, the time to call is now rather than after the hearing. Call (262) 860-8932 or email christopher@carsonlawoffice.com. You can also read more about our criminal defense practice, our posts on how Wisconsin sentencing works and your rights during a stop and questioning, or contact us to arrange a consultation.
Carson Law Office · 15350 West National Avenue, Suite 101, New Berlin, WI 53151 · (262) 860-8932
This article is general information about Wisconsin law and Department of Corrections and Division of Hearings and Appeals practice, and is not legal advice. Statutes and administrative rules are amended from time to time, agency practice varies, and every case turns on its own facts and on the specific rule or condition alleged. Read the notice you receive and speak with an attorney about your own situation.