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Vol. 73, No. 6, June 2000 |
Supreme Court Digest
by Prof. Daniel D. Blinka &
Prof. Thomas J. Hammer
Note: Each case summarized in the Supreme Court Digest
includes its new public domain citation.
| Criminal Procedure |
| Municipal Law | Torts
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Criminal Procedure
Trial by Jury - Six-person Juries
State v. Wingo, 2000
WI 31 (filed 14 April 2000)
The defendant was convicted of soliciting a prostitute. The
trial court, the prosecutor, and the defense mistakenly believed
that section 756.096(3)(am) (1995-96) of the Wisconsin Statutes
mandated the use of a six-person jury. The record revealed, however,
that the statute was not in effect when this prosecution was
commenced. At no time did the defendant agree to be tried by
a jury of less than 12 persons, as required by section
972.02(2).
The supreme court, in an opinion written by Chief Justice
Abrahamson, held that the six-person jury trial was error and
necessitated a new trial. In State
v. Hansford, 219 Wis. 2d 226 (1998), the supreme court
declared the six-person jury statute to be unconstitutional,
but this case was further complicated by the erroneous use of
the unconstitutional statute to begin with. The law that actually
applied to this prosecution required the use of 12-person juries
in all criminal prosecutions, felony and misdemeanor. At no point
on the record did the defendant voluntarily, knowingly, and intelligently
waive the right to a 12-person jury.
Conditions of Probation - Requirement That Defendant
Pay Unpaid Fine and Forfeiture From Prior Convictions
State v. Oakley, 2000
WI 37 (filed 9 May 2000)
The defendant was found guilty of intimidating a witness.
The circuit court withheld sentence and imposed a three-year
term of probation. A condition of that probation was that he
pay off an old unpaid fine and an unpaid forfeiture from prior
unrelated convictions. He brought a post-conviction motion to
strike this condition of his probation. The circuit court denied
the motion and the court of appeals affirmed.
In a majority decision authored by Chief Justice Abrahamson,
the supreme court reversed the court of appeals. Focusing on
the prior unpaid criminal fine, the majority noted that Wis.
Stat. section
973.07 expressly limits incarceration as a means of collecting
a fine to a period in the county jail not to exceed six months.
Therefore, the circuit court erred as a matter of law in making
the payment of an old unpaid fine a condition of probation for
the new conviction, because a violation of that condition would
expose the defendant to incarceration in the county jail for
more than six months. As a matter of fact, upon revocation of
probation for the intimidation charge, the defendant would face
incarceration for up to 10 years in prison.
The supreme court noted that the circuit court has means available
to it to enforce the old outstanding fine against the defendant.
The court could issue a judgment for the unpaid amount and direct
the clerk to file and docket a transcript of the judgment under
Wis. Stat. section
973.05(4)(a). The court also could issue an order assigning
the defendant's wages or other income under section
973.05(4)(b)(c). Further, pursuant to section
973.07, the defendant could be committed to the county jail
until the fine is paid, for a period fixed by the court not to
exceed six months.
In footnote the court noted that a condition of probation
in this case was payment of an old unpaid forfeiture for a prior
disorderly conduct conviction. The court indicated that its reasoning,
as described above with regard to the unpaid criminal fine, also
would apply to the forfeiture imposed for the civil disorderly
conduct offense. Wis. Stat. section
66.12 provides a method for collecting a forfeiture in a
civil action. The court read that statute to mean that a forfeiture
cannot be enforced as a condition of probation under section
973.09(1)(a).
Justice Wilcox filed a dissenting opinion that was joined
by Justice Prosser. Justice Prosser submitted his own dissent.
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