WisBar News: Circuit courts do not have statutory authority to shorten probation terms:

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  • WisBar News
    February
    14
    2012

    Circuit courts do not have statutory authority to shorten probation terms

    Joe Forward
    Legal Writer

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    Under Wisconsin statute, circuit courts can only extend, not shorten, the length of a probationer’s probationary term. But circuit courts may still have inherent authority to do so.

    article title Feb. 14, 2012 – Wisconsin statute does not grant circuit courts authority to reduce a probation period, the Wisconsin Supreme Court has ruled. However, the supreme court did not resolve whether circuit courts have inherent authority to do so, leaving that possibility open.

    Wis. Stat. section 973.09(3)(a) authorizes circuit courts to “extend probation for a stated period or modify the terms and conditions thereof.”

    Defendant Carl Dowdy, convicted of second-degree sexual assault by use or threat of force or violence in 2002, was ultimately sentenced to a 10-year probationary term. He was to serve one year in confinement and meet other probationary terms for 10 years.

    After five years, Dowdy asked the court to reduce the length of his probationary term from 10 years to seven years. The circuit court granted Dowdy’s motion, claiming an authority to do so under section 973.09(3)(a). But a state appeals court reversed.

    In State v. Dowdy, 2012 WI 12 (Feb. 14, 2012), a Wisconsin Supreme Court majority (4-2, Justice David Prosser did not participate) affirmed, concluding that section 973.09(3)(a)’s plain language does not give circuit courts the authority to reduce the length of probationary terms.

    The majority rejected Dowdy’s argument that since circuit courts can “modify” probationary terms, they can modify the length of time that a probationer is on probation.

    If that were the case, “then the statute’s specific grant of authority to ‘extend probation for a stated period’ is superfluous,” wrote Justice Annette Ziegler for the majority.

    The majority also noted that under section 973.09(3)(d), only the Department of Corrections, not a circuit court, can discharge a probationer from probation early.

    “Had the legislature intended for a circuit court to have such statutory authority, it simply could have said so,” Justice Ziegler wrote.

    The supreme court majority did not decide whether circuit courts still have inherent authority to reduce the length of probation terms, noting the issue was not raised in the lower court.

    Dissents

    Both Chief Justice Shirley Abrahamson and Justice Ann Walsh Bradley wrote dissenting opinions. The chief justice wrote a lengthy dissent, arguing that Dowdy did not forfeit his right to have the supreme court decide the inherent authority issue, and concluded that circuit court’s do have inherent authority to reduce the length of a probation term “for cause.”

    Chief Justice Abrahamson noted that since the majority did not decide the issue, Dowdy “is free to petition the circuit court again to reduce the length of his probation and argue that it has inherent authority, but not statutory, authority to do so.”

    Justice Bradley agreed with the majority that circuit court’s do not have statutory authority to shorten probation terms, but argued that Dowdy did not forfeit the inherent authority argument. She concluded that circuit courts do have such authority.

    “No party disputed that a circuit court has the inherent authority to reduce the length of probation. The issue is not whether the court has such authority. It does. Rather, the issue is what are the parameters of that authority,” Justice Bradley wrote.

    Attorneys

    Bryan Cahill of Godfrey & Kahn S.C., Madison represented Carl Dowdy. Assistant Attorney General James Freimuth represented the state. The Association of Criminal Defense Lawyers, the Wisconsin State Public Defender's Office filed amicus curiae briefs.

    By Joe Forward, Legal Writer, State Bar of Wisconsin