Tuesday, February 14, 2012

Valentines Day At The Wisconsin Supreme Court

Another day, another sharp disagreement from the Wisconsin Supreme Court.

The court majority (per Justice Zeigler) holds that a circuit judge does not have statutory authority to reduce the length of a probationary period:

We conclude that Wis. Stat. § 973.09(3)(a) does not grant a circuit court authority to reduce the length of probation.  Rather, the plain language of § 973.09(3)(a) grants a circuit court authority only to "extend probation for a stated period" or to "modify the terms and conditions" of probation.  When subsection (3)(a) is read in context, it is clear that the authority to "modify the terms and conditions" of probation does not include the authority to reduce the length of probation.  Accordingly, in this case, the circuit court erred as a matter of law when it relied upon § 973.09(3)(a) to reduce the length of Dowdy's probation.  On that basis, we affirm the decision of the court of appeals.

We decline to decide today whether a circuit court has inherent authority to reduce the length of probation, and if so, what standard applies.  Neither Dowdy's petition to the circuit court nor the circuit court's order was grounded in the court's alleged inherent authority.  As a general rule, issues not raised in the circuit court will not be considered for the first time on appeal.

Chief Justice Abrahamson dissents:

The majority opinion errs in declaring that the defendant, Carl L. Dowdy, forfeited the right to obtain review in this court of the question whether a circuit court has inherent authority to reduce the length of probation.  Under the well understood rule of forfeiture, the case law applying the rule, and rules of appellate practice, it is clear that the defendant did not forfeit the right to have this court decide the inherent authority issue.  Neither party argued or briefed the forfeiture issue.  The court has taken its own detour and its conclusion is contrary to accepted practice.  Thus, this court should address whether circuit courts have inherent authority to reduce the length of probation.   

 I would hold that circuit courts possess inherent authority to reduce the length of probation.

Justice Bradley wrote a separate dissent. Justice Prosser did not participate. (MIke Frisch)

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