State v. Davis

$62,000 persons to those and entities that finan- incurred unprofessional as a cial loss result his conduct. IT IS FURTHER ORDERED that Attorney Charles provisions with comply N. Besser SCR 22.26 con- cerning requirements person of a whose license practice law in Wisconsin has been revoked. Wisconsin,

STATE Plaintiff-Respondent,

v. DAVIS, Thelmer Defendant-Appellant-Petitioner.

Supreme Court Argued September February No. 84-588-CR. 1985. Decided 11, 1986. (Also reported 333.) in 381 N.W.2d defendant-appellant-petitioner there were For by argument Hintze, L. assistant Donna and oral briefs public defender. state argued by plaintiff-respondent the cause was

For attorney general, Glinski, with whom J. assistant John general. attorney Follette, La was Bronson C. on the brief HEFFERNAN, This is a review of CHIEF JUSTICE. appeals unpublished No- of the court of dated decision an affirming summarily 13,1984, an order of the cir- vember county, Ralph Gorenstein, G. for Milwaukee cuit court judge, 15,1983, which, extended the on November circuit probation a third time. We reverse

of Thelmer Davis1for court, with to termi- circuit directions remand to the and nate Davis' supervision. probation that the We conclude deciding judge in to extend the his discretion abused period, probation on he based that decision because comply Davis' alleged her with conditions of failure to explicitly been had never before when those conditions satisfactory necessary by for the court to be stated completion term. that, in Thelmer The record demonstrates report charged the failure to income while with Davis was County recipient De- the Milwaukee assistance from a of (6), partment 49.12 Welfare in violation of sec. of Public guilty jury felony. trial, Stats., she was found After a a placed probation: 24, 1975. She was on November 1 variously as Thelma referred to In the the defendant is record Davis, Moreover, appears only as but as Thelmer. surname petitioner appeal re accept and Lock. We name used Davis. view briefs —Thelmer

487 custody . . for the of in the and Department control of the Health and Serv- Social subject subject to its rules and orders and ices2 following conditions [none stated]. further condition

"As the defendant payments in Depart- shall make such manner as the direct ment shall as follows:Restitution Em- $1467.00." phasis supplied.3 placed emphasize custody We that the full and order control in Department emphasize that, of Health and Social Services. We also verbiage order, probationer very under this could well conclude Department Health Social Services need be satis incorrect, clearly importance fied. While this case illustrates clarity imposing clarity respect rules for to who setting is the conditions of probation reports incorporate following All of the the under

standing probation: of the terms of (Sentence "Original years apparently Term of Probation: 5 was im- posed stayed and but of the exact nature sentence as indicated on the clear)." not court order is recurring There is a reference a two-week initial incarceration However, county jail. portion in the original that of the order was out, by struck whom the record does demonstrate. Whether that imposed term of incarceration was whether it or was served is not clear. uncertainty provisions pro- This of of the sentence and the of conditions permeates bation the record as a whole and the demonstrates failure of the court from time of the conviction set down onward to with specificity imposed probation the sanctions to be and the of conditions minimally acceptable degree clarity precision. jour- with a of The day 24, 1975, entry nal sentencing, on the of November reflects that judge the trial ordered of "restitution costs." It can be surmised that perhaps merely pay- what was intended was costs monetary charge legal ment of The costs. actual defense was not 9, journal nothing noted in until December 1975. There apprised record to that show Davis was ever the existence an legal amount of costs for until these fees near the the first end of five years probationary supervision. probation agent of the by supervised was Davis the date and Social Services from Department of Health 1980, five-year In as the of the forward. end of conviction agent Davis' advised probationary period approached, Gorenstein, Judge that the court, again by over presided He by year. be extended one probationary period should that, following original in the interim con- reported had, 1978, sen- viction, Davis' husband been Thelmer and since that time Davis penitentiary tenced state couple's of the three chil- support source of was sole dren, four, nine, and eleven. ages whose were agent emphasized that Davis had a

The husband, and, despite imprisonment of her steady job good marriage a stable one and she was was report The revealed that her three children. mother to during years her first two of su- paid Davis had $105 period she had been absent pervision, during but agent periods maternity for two leave. from work she had never been told that Davis stated reported the first two probation department obligation. her restitution more toward January until accord- It was not apparently authorities, attempt any ing to the what analyze expenses determine made Davis' circumstances, amounts, ought she to be light of her au- budgeting A counsellor advised paying. "using money wisely." that Davis was thorities budgeting analysis, counsellor's the basis On ought agent that Davis concluded Davis' her resti- a month in satisfaction of paying have been $15 probation. period her obligation for the entire tution that, although perform- more recent He concluded her pay- her not characterize satisfactory, he could ance was of a years two as evidence the first pattern ment of effort apparent lack It was good-faith effort. impelled the years supervision during the first two continue Davis agent suggest that the court probation on He general characterized her rehabilitative by stating: status agent began supervising

"[SJince case in approximately November of 1978 there have been no adjustment problems supervision. is, serious on That steady employment, Miss Davis maintains a suitable residence, place provided family for her as best she could."

This report, 17, 1980, same dated November stated department that the 1979, did not learn until almost four years imposition after the of probation, judge that the re- quired Davis to pay attorney's fees the amount of $420. agent's report Davis, The stated that upon this, learning "quite upset," told, because she had been because she indigent, was found she would be furnished counsel at no expense to herself. agent, nevertheless,

The recommended pe- supervision riod of be continued year for one and that expected Davis be to make monthly payments of $20. The supplied record on this review fails to show the order subsequent entered hearing on probation agent's petition, but journal entries in the judgment roll, 18, 1980, dated November recite: (1)

"Court ordered year extended for one and further ordered defendant to per interest 10% year unpaid restitution." 1981, In November of Davis was returned to court. judge continued the and, two any explanation without appearing rationale in the us, record before told the defendant payments to increase or be sent jail. This despite decision was reached recommendation of supervision officer that be discontinued. 15,

On November Judge Gorenstein extended for another years despite two probation be recommendation discontin- renewed time, that, the ñrst stated if the de- judge, ued.4 The work, work be volunteer such could counted fendant did of obligation per Upon at the rate hour. in credit of her $2 a of volunteer work over number proof being submitted court stated that credit for volunteer work years, of 15,1983. to only subsequent allowed November would be 19,1984, appeal of to the court of On March notice appeals per filed. The court of in a brief appeals was affirmed the court's order. Petition curiam decision appeals granted of the of was the decision to review this court. by abuse of discretion by

We because reverse itself, because, any analysis without case trial court it except way, most altered terms perfunctory in a apply and failed to a reasoned manner State, 2d 266 v. 83 Wis. principles Huggett (1978). 403 N.W.2d that, led she to to believe were

The defendant by of her as set her to terms conform her she would tion officer the terms of Yet, in of her sentence. with the conditions complying sentence, despite of the the crucial extension respect to everything that was ex- doing been the fact that she had her, Judge by told Gorenstein required of she was plicitly go prison get job a second that she would have term. five-year serve of dis- evidencing an abuse judge's attitude The trial very At the out- transcript. by the cretion is demonstrated that, two-year period, during the probation officer stated Davis' required payment, she was stead make the Davis had continued to during most Telephone Company, ily employed the Wisconsin Her support of three children. question was the sole requested because be terminated probation officer good-faith efforts adjustment and her Davis' excellent assignment to as wage be executed proposed that a restitution. He payment of restitution. sure 15, 1983, hearing place set of the that took on November Gorenstein, Judge facts, to prior any statement of the prior any perspective being to on the case by furnished counsel, portion the substantive commenced of the hear- statement, ing "I never with the do it." This statement was officer, probation defendant, made without either the the having or opportunity defendant's counsel an be to heard. very hearing, From the start of the the judge made facts, it no of clear that recitation no consideration circumstances, of the no of history review the impel case request would him even consider the department counsel for for or termination of the probation, though modification even defendant's prepared counsel and the officer were permit wage assignment the execution of a by Davis to make the department public welfare for payments whole made The hearing Davis. was made a sham when the trial judge very beginning at its it made clear that he would to, consider, respond refuse to or the circumstances of the him. case before outset, had

While restitution been ordered from the no had attempt judge ever been made by to determine whether, initial periods, restitution in reasonable amounts was or scheduled whether the pay- could, should, ments young made a woman who support was the sole three judi- for minor children. Due to neglect, cial upon pro- defendant was set to embark gram of restitution which —even if carried out to the let- ter Judge under approach Gorenstein's to the problem— would have repeated periods resulted in additional supervision. Despite public the fact welfare de- partment realistically had appraised Davis' capacity to make restitution and had pro- earlier recommended that terminated, judge per- bation be the trial unrealistically sisted in continuing supervised probation it when was ob- viously contributing either the rehabilitation of the in making defendant or whole. county pe- kept has been Thelmer Davis Except for the first two after her years. riod of ten to be lit- appears which there period conviction —a guidance or any over her supervision tle evidence usually payments has made help her —the defendant has em- During the entire she been on schedule. her fam- responsible job and has taken care of at a ployed prison. was in Most despite the fact that her husband ily period, single-handedly sup- she has probationary entangle- further any has avoided ported family date, court, at this late ten Yet the ments with law. hearing in the of No- original probation, years after 15, 1983, stated: vember money begin to with. She was found

"She took the it, argument. no I want guilty by jury. That's more got days if she hasn't matter in and to review this contribution, going job she's her a or made some second jail." to respect by the judge was made

This statement woman, chil- supporting minor who was employed to an dren, with the orders her complying fully who was and making required by probation officer and previous order. the court's following: transcript reveals got year to make . . . one "THE COURT: You've through it volunteer up, you're going do it either hour, plus work, pay it interest. an or $2 Judge, that’s not even HARWICH: "MS. wage, an hour. $2 minimum Well, is not—I'm volunteer work "THE COURT: if she's out going give her the same credit as Saturday job get go can out there and there. She money begin obligations She get done. took it, no guilty by jury. That's found with. She was days in 90 this matter argument. I want to review more some con- got job made hasn't her a second and if she tribution, jail. going to she’s February

"THE CLERK: 1984 at 9 o'clock. you "MS. HARWICH: Would wait a moment. paid "THE COURT: It should have been five ago. "MS.HARWICH: Can we wait if day and see that me, agreeable please. probation "THE COURT: Extend for cause for year. years. another Two 2/21/84,

"THE CLERK: 9 o'clock. on, "THE COURT: Add the interest Mr. Pas- it necker so was ordered back in your 1980—Take it to friendly They figure bank. will it out." It should portion be remembered that the of the hear- ing subsequent urgings probation depart- requesting ment be terminated because objective had been satisfied. The crucial recommendation made by department pro- vided:

"Recommendation : Thelmer has made an excel- adjustment and, supervision, lent given far, the extensions that have occurred thus she has probation supervision been eight for a years. It is felt that this time she has made a good faith effort toward obliga- of tions, given competing family demands on her in- Furthermore, come. paid the total amount that she has in only thus far falls payment short of full $298.48 of Therefore, the entire amount of restitution. in accor- case, dance with Huggett5 the criteria outlined in the appears it unreasonable to extend Thelmer's any already further. She has been extended three years beyond original by term as down handed Furthermore, court on 11/24/75. practically since all paid, of the restitution has been it is felt that an exten- sion of attorney for the of costs and 5 It by shouldbe noted that in the documentssubmitted the probationdepartment ig was the Huggett standard considered.It was by judge. nored the trial

494 Therefore, requested it is that the unnecessary. is fees probation requiring pay- condition of court ordered obligation remaining of court balance of ment removed." been on only after Davis had that it was

It is clear her judge that the informed eight for over be done satisfaction work could any that volunteer so informed ear- obligation. Had she been her restitution alternative, obligation might well have her lier of time, community work anat earlier been satisfied performed by had approved been tardily so the nature to years prior over a on volunteer basis Davis a it. recognition of Gorenstein's Judge implicit in the trial stated appeals probationer would finding decision is court's good-faith if made a she had ability pay had the have legal proposi- job. This another or second effort secure State, 790, 266 83 2d v. Wis. contrary Huggett tion is (1978), recognized that it was this court 403 where N.W.2d good-faith effort to make a probationer for a possible money yet still be unable make implicit Judge Gorenstein's finding If was such owed. legal appropriate on the order, finding was not based hence, and, an abuse of in itself of Huggett standard 754, 763, Hutnik, See, 2d v. Wis. State discretion. (1968). not, finding re- and the Implicit N.W.2d 733 cir- of discretion an abuse sulting order constituted regular pay- has made where Davis cumstances here appropriate by thought in the amount ments directed the trial approved by previously her officer rec- as the hearing, this final insofar before judge. Never reveals, that she ever been informed ord had Davis apprised she job a second or was required to secure toward given monetary credits would be fact she capri- It work. was community volunteer indebtedness court, eight cious for the original after the proba- order, change tion the rules of subject Davis, already who was working record —the reveals — support family, requirement overtime to her of as- suming the burden of a job impose second or to an alterna- requirement tive of "volunteer" work. Had the alternative order, posed original been in the it may well have aided Davis in her rehabilitation. The trial judge concluded if only working Davis was at a second job could he consider her effort good to be in faith. This bit of judicial philosophy imparted was probationer for the first time in 1983. case,

In the instant original probation period of five years was extended three times judge, a total double the maximum term imprisonment original for the offense. In each case of extension of tion, the defendant substantially complied with the terms paying terms of the restitution ordered by department, but also in other- conducting wise herself in an exemplary manner. The that, clearly record showed response to the court's order, Davis paying possible maximum toward fact, restitution. In the record showed that ordered restitution caused her to fall pay- behind in ment of the necessities of life for her family. A study by Budget Consumer Counseling Service of Milwaukee undertaken at request agent con- cluded that Davis could month, no more than per $15 using she was money wisely, and that she had no need of financial and counseling. debt agent concluded that she could pay per month $15 toward the discharge of her debt. This she substantially did fol- lowing the conclusion of the Budget Counseling Service report in 1980. The probation agent in his 1980 report commented, "Miss Davis maintains steady employment, place residence, a suitable provided for her family as best she could." to the agent's report judge probation

In the 1983, 24, he stated: dated October adjustment to excellent "Thelmer has made an . supervision, . . and has been during eight years . . . this period supervision for a pay- goodfaith effort toward the time she has made a competing given de- obligations, of court ment family income." mands on her the su- agent’s recommendation The Judge rejected by terminated was of Davis be pervision Gorenstein. stated that the criminal specifically court has

This employed perform not be should justice system State, v. 83 Wis. agency (Huggett of a collection functions func- 804), precisely it that that was appears but 2d at Judge by this case Goren- upon the court in imposed tion why justice system the criminal see no reason stein. We circumstances, repeatedly Davis has and where in these faith, relin- good should not demonstrated continuously upon hold Davis. quish its If, county welfare it she is indebted appears, authorities, for the enforce- further criminal sanctions agreement although an inappropriate, ment of a debt are civil liabilities satisfy out to Davis' be worked may above, an As stated such authorities. county welfare by counsel and the prepared Davis' agreement had been to the court Novem- attorney presentation for county's inappropriate, it is how- conclude ber of 1983. We the collec- sanctions for ever, to criminal further continue debt, In acknowledged Huggett, to be tion of what goals the dual this court noted supra at " crime convicted of of those 'the rehabilitation are community interest.'" Debt of the state protection continuing be facilitated per se should not collection the rehabilita- when process supervision criminal case, and, as in accomplished been purposes have tive when a reasonable alternative for the restitu- proposed by tion has been the defendant and the department. tion record is gainfully employed reveals Davis responsible job

and has held the same years. over ten any The record fails to reveal failures on probation or criminal conduct whatsoever ten-year almost probation except for the fact that she has not been to make in period. able restitution full that appear It all of purposes would that the of the criminal been in proceedings law have satisfied the to date. To the extent that obligation, Davis has a monetary and she does, it civil in nature —she money is owes to the county. To perpetrated upon the extent that she has a fraud the county, has been punished by ten-year she a period of su- pervision. The record reveals that it is only of because the obligation to monetary make proba- that the tion continues. As court stated Huggett, supra at 803: probationer the capacity

"If lacks the good has during probation, demonstrated a faith effort failure to make restitution cannot be 'cause'for extend- ing probation."

It apparent is judge, that the trial over objections the of probation department, after the rehabilitative function of accomplished, has been attempt- ing to use the law system criminal the collection of 973.09(3)(b), Stats., debt. Section portion of the laws subsequent enacted commencement of term Davis' probation, of requires that: probationer

"A discharged shall not be from tion until of the ordered restitution ... or the court that determines there is substantial reason require payment." to continue to here, the continuation of the circumstances Under purpose an of alone constitutes abuse for that teems with substantial reasons The record discretion. why should not have continued compel payment period The restitution. defendant discharged from should be accepts general they if cases this court

While importance, likely significant precedential we to be are conclude category fits it dem- that this case because process improper use of the criminal to col- onstrates eventually more than a debt. became no civil lect what Additionally, absolutely it

we to make clear wish outset, from should not al- conditions tered appropri- except that evidence in circumstances judicial exercise of discretion. ate department uniformly reports conforming herself to defendant was reflected the reports requirements of law. To the extent that Department facts, can reveal such she of Public Welfare eight years, leading exemplary For a an life. compliance require- with has been substantial she ments of conduct and repayment of the debt outlined obligation probation department. Her to the wel- department simpliciter. The fulminations fare was debt— threatening jail judge un- with a return to her of less she secured job were

an additional absurd—absurd expressly that, threat was because stated because county paying at a rate at which debt to the Davis was the her department previously had set and had judge by approved court, now but which been thought jail. record insufficient, be sent to she should productive living law-abiding and Davis is reveals that life, supporting and her children. herself instance where contin- an record demonstrates This "good on an altered definition based ued faith" probation period severely under- would expectation of probationer's prospect and reha- mine the by faithfully established follow- which had been bilitation requirements originally set. To extend her ing the that is now than double probation beyond more she could have received is unrea- the maximum sentence recognized as a deficiency where the mere sonable jail her with is to use the criminal law debt. To threaten particular judge system to collect what even earlier proceedings recognized in the same as a debt. appeals affirming The decision of the court of Upon of the circuit court should be re- order reversed. court, Thelmer Davis should be dis- mand to circuit charged supervision. further To the extent that from adjudication of constitutes a of in- earlier fraud finding county, junc- debtedness to the such indebtedness at this only by ture is civil remedies. enforceable By appeals decision of the court of Court. —The court, is reversed. The case is remanded the circuit it is that the circuit court discharge directed the defend- supervision arising ant Thelmer Davis from further out 49.12(6), Stats., of her conviction for violation of sec. en- county tered the circuit court for Milwaukee on No- 24, 1975. vember ABRAHAMSON,

SHIRLEY (concurring). S. I J. quite agree majority with the opinion join it. The record in this case does not findings reflect the of fact or analysis required to sustain proper the decision as a judicial McCleary State, exorcise of discretion. v. 49 Wis. 2d 263, 277, 182 (1970). N.W.2d 512

I separately emphasize write that the case law this state for at least the last 25 more re- —and court, cently, required the statutes —have the trial when imposing restitution as a condition of to estab- lish a of payments reasonable schedule for the beginning tioner at the term. probationary

500 determining in In 1960 this court stated that probation, condition of it was of restitution as a amount case upon "incumbent the trial court individualize each v. give it and humane consideration." State and careful (1960).1 418, Scherr, 423, 77 9 2d 101 N.W.2d Wis. Garner, 100, 105-106, 194 Later, v. 54 Wis. 2d in State Gerard, 611, (1972), 57 and in v. Wis. 2d N.W.2d 649 State (1973), 619, 205 approval 374 this court cited with N.W.2d Bar Standards re adopted the American Association and 1970), probation Draft which instruct lating (Approved . . requiring payment of. the trial court "conditions go beyond probationer's . . . should not ability pay."2 State, 790, 266 403

In v. 83 Wis. 2d N.W.2d Huggett (1978), and Gerard in con- court relied on both Garner if cluding goals would defeated ability did not consider defendant's court on of re- "[CJonditioning probation the satisfaction pay.3 probationer's control quirements beyond which are probationer's responsibility." sense of undermines 83 2d at 798-99. Huggett, supra Wis. 1 57.01(1), pertinent in sec. Stats. statute Scherr was order, 1959, may, by provided that withhold sentence which "[t]he place impose stay him its execution and in either case or sentence stating department period, order for a stated in the therefore, impose may of such order or

the reasons a condition pay continuing the costs in effect that he shall make restitution it prosecution or do both." 2 entirety reproduced Huggett, supra, in The standards are their 301.1(1) 796-97, Code 2d n.3. sec. of the Model Penal 83 Wis. at See also n.4, stating supra, at that courts Huggett, 83 Wis. 2d 797 set forth conditioning ability probationer's a restitution must consider order. 3 validity of condition Huggett, In we said and reasonableness to which it effectuates must be measured extent namely, objectives those "the rehabilitation of the dual protection community inter of the state and convicted of crime and 653, Tarrell, 798, quoting 74 Wis. 2d at State v. est." Wis. 2d (1976). 247 N.W.2d 696 legislature appears

The to have codified the case law requiring the trial court to an make individualized deter- mination of restitution based on the victim's loss and the it ability pay defendant's when amended sec. 973.09 in 973.09(l)(b) 1979. Section instructs the trial court to set compensate restitution to the victim "to the extent possi- ble" and to "specify amount consistent with sub. (lm)."4 973.09(lm)(a) court, Under sec. the trial in deter- mining restitution, the amount and method of is to con- sider "the financial resources and the future ability 973.09(lm)(c) probationer Furthermore, to pay."5 pro- sec. vides that the court "shall not payment establish a sched- extending ule beyond the maximum probation term of that could have been imposed for the . . ."6 offense. legislature did not authorize the trial court to es-

4 973.09(1)(b), 1983-84, provides, Sec. Stats. inter alia: places person require "If the court the court shall designed compensate pecuniary resulting the victim's loss possible, from the crime to the extent unless the court finds there is sub- stantial reason not to order restitution as a condition of If require victim, paid the court does not restitution to be to a the court may require shall state its reason on the record. A court that restitution paid surety paid any be to an insurer or which has claims or benefits restitution, require to or on behalf of the victim. If the court does it shall (lm) specify notify depart- the amount consistent with sub. and shall justice may eligible compensa- ment of of its decision if the victim for tion under ch. . . ." 949. 5 973.09(1m)(a), 1983-84, provides: Sec. Stats. determining payment restitution, "In the amount and method of ability the court shall consider the financial resources and future probationer pay. may provide payment The court for of restitution up pecuniary to the victim to but not in excess of the loss caused probationer may any offense. The assert defense that he or she could sought compensated by raise a civil action for the loss to be the resti- tution order." 973.09(1m)(c), 1983-84, provides, Sec. Stats. inter alia: payment extending beyond "The court shall not establish a schedule imposed the maximum term of that could have been for the (2)." offense under sub. tablish a restitution schedule and order necessary whatever victim's total loss. legislature Had the intended to allow to con- tinue ad infinitum and to use the system to col- regardless lect full restitution goals of the other point tion there would have been legislature no in the expressly tying schedule to the maximum original term of and probationer's to the finan- cial resources and future ability pay. to

When the trial court establishes a restitution sched- loss, ule that reflects the victim's probationer's the finan- cial resources and future ability pay, to the maximum original probation, goals term of and probation, probationer then the should be comply able to with the payment schedule within the probationary term set If by probationer trial court. fails to com- ply with the restitution schedule by established the trial pursuant 973.09, court to the standards set forth in sec. provides probationer the statute that the shall not be dis- charged unless the court finds substantial reason not to 7 973.09(3)(b). payment. continue the Section

To proper constitute a exercise of discretion to and problems posed case, avoid the in this trial courts must regarding make a record imposition of restitution which sets forth the upon facts which the order is based

7 973.09(3)(b), 1983-84, provides: Sec. Stats. department, (lm), applicable "The clerk or the under sub. shall notify sentencing payments unpaid court ofthe status ofthe ordered days probation expiration at least 90 before the date. If the clerk is act- (lm), ing give department under sub. he or she shall the same notifi- made, payment cation. If as ordered has not been the court shall hold hearing prior date, expiration a review unless the hear- ing voluntarily probationer knowledge waived with the may probation period waiver result in an extension ofthe inor a revoca- probation. probationer discharged tion of A shall not be from restitution, costs, fees, attorney until of the ordered fines and payments related under s. 973.05has or the been made court determines require payment." that there is substantial reason not continue to

503 failed to do The trial court of the order.8 the rationale and majority opinion. join I so. reason For this CALLOW, (concurring). J. In this case G. WILLIAM complete failure restitu- to decide when we are asked under for extension constitutes cause tion 973.09(3)(a), majority I believe the fails Stats. Because sec. adequately give fails to full question and address I rights, separately. write to victims' recognition crime, 973.09, is convicted of sec. person aWhen sentence, Stats., stay the discretion "gives impose any condi place defendant appropriate." v. appear reasonable and State tions which (1973). 611, 618-19, Gerard, 374 2d N.W.2d 57 Wis. therefore, right; privi it is a Probation, is not matter purpose is those con lege. 619. Its to rehabilitate Id. at protect community the state and victed of a crime and 790, 798, 266 State, 2d 83 Wis. N.W.2d Huggett v. interest. (1978). permissible appropriate condition of One Gerard, 57 2d at 619. "The old saw restitution. Wis. tion is legal a when- pay' reality not should become 'crime does require that the Society and the law should possible. ever repay.' [Ejvery . . . reasonable effort 'criminal shall to restitu- require defendant make should be made to 8 promulgated by Department According of Health to the rules Services, department ready in stands to assist court and Social light arriving appropriate restitution in of the circum at an schedule orders, that if court case. HSS 328.07 states a so stances each pecu department of a the nature and amount victim's shall document loss, appropriate niary an schedule and recommend perform presentence department requires a HSS 328.27 court. investigation provide with and relevant informa the court "accurate sentencing upon This information is its decision." tion which base summary compiled report a which includes a and conclusions. to be in 328.27(3)(b). suggest Agents treatment are directed to a tentative HSS plan any recommendations about restitution. which should include 328.27(3)(d). HSS recognize tion and to that victims should suffer finan- (Callow, J., 2d at 806 cial loss." Wis. dissent- Huggett, individual, must when the victim is an ing). apply This case, in and when the victim is robbery society, as in fraud case. a welfare imposing in by

We noted restitution as Huggett a court "can aid an probation, a condition of offender's re- strengthening the individual's sense of re- habilitation probationer may The learn to sponsibility. consider more consequences of his or her actions." Id. carefully at successfully probationer completes probation 798. A who restitution will have earned society's respect and makes tangible and will have evidence of his or her ability to patterns behavior and to lead a law-abiding alter old life. By imposing Id. restitution as a condition of community's the court also can further interest having financially the victims crimes made whole. Id. restitution, however, determining In the amount of obligation the court should not establish a restitution probationer's ability pay. which Id. at 797. exceeds requirement may An excessive restitution not serve the probation. Establishing goal function of rehabilitative which cannot be met creates frustration rather than in- responsibility. In stilling probationer in the a sense ad- dition, obligation prob- an excessive restitution can create expect probationer Á can that a lems for the court. obligation with restitution will fail saddled an excessive complete the initial term of tion, forcing question the court to decide the extension, department provoking to at- ques- tempt revocation of We addressed to ad- years ago tion several and we are asked Huggett, again dress it in this case. pleaded probationer Huggett guilty to theft funds, $6,000

receiving public assistance while over required Id. at neglecting report income as statute. imposed five-year a but 791-92. The trial court sentence Huggett placed of the sentence stayed execution Id. at 792. "The condition years. probation for five judgment in the trial court's specified probation of the Depart- manner as such payments that she 'make shall direct as follows: Social Services Health and ment of $6,473.96; costs: Id. $59.00.'" Restitution: five-year probationary end before the Shortly form. The form was enti- Huggett signed a waiver period, Court," Appearance and Order tled Court "Waiver statutory requirement to fulfill and "was intended cause, probation." may, for order extension court case, extending In the "cause" for Huggett's Id. at 793-94. obliga- to fulfill her restitution was her failure probation, Huggett repaid had nearly tion. In five Huggett's The court order extended Id. at 795. only $675. Id. at 794. years. for two probation period, Hug- the extended Six months into She her charged an absconder. waived gett was hearing. Her was revoked tion revocation Shortly began serving 1976. thereafter she February, at 795. five-year sentence. Id. postconviction for relief. The trial

Huggett moved relief, concluding Huggett "that waived her court denied hearing at extension and that revoca- appearance other than for tion of 'was rule violations restitution.'" Id. failure controversy "that the real appeal, On we concluded tried, namely . whether the trial fully . . has not been . extend . . issue is court had cause to [T]he full ad- Huggett's failure to make restitution was whether though Hug- at 802. equate cause for extension." Id. Even form, requested had signed a waiver never gett had requirement, and had hearing to modify restitution, owed in of the amount she paid only $675 adequately did not docu- record court concluded re- Accordingly, ment the existence of "cause." hearing to determine whether the for a manded case to extend there was cause First, I reasons. be- Huggett

I for two dissented holding be to in- would detrimental majority's lieved imposes restitu- When trial court digent defendants. probation, judge I said trial as a condition tion "[t]he . . . anticipate should the defend- the defendant the restitution condition of failure to meet ant's and a return result in revocation of likely will [pre- imposition to court for the the defendant creating Id. at 805. a rule which al- By scribed sentence]." their are unable to fulfill restitution defendants who lows Huggett released obligations be from the sen- probability reduced the majority essentially major incentive for imposed would and reduced tence be approach discourages trial of restitution. This fulfillment probation in some circumstances. granting from judges grant probation con- example, likely will judge For a trial wealthy defendant whose upon restitution ditioned A pay likely grant will not ability judge is certain. to an de- upon indigent restitution probation conditioned however, ability pay suspect, because fendant whose escape reasoning Huggett the defendant can under fulfill even if defendant fails to serving any sentence demonstrating evi- obligation by restitution other dence rehabilitation.

Second, I I because believed the defendant dissented asserting that the have burden of restitution should abil- exceeds the defendant's which court establishes said, I pay. ity to requests probation at the time the defendant "[when] accepts sentencing as a condition of

of probation, presumed to be restitution [should] ability of the defendant to until the de- within hearing petitions reason- fendant the court for a If the defend- ableness of the order restitution.... extension of ant chooses to consent an . . . condition has not been the restitution because met, may approve the extension without the court hearing." at 806. Id. legislature Huggett, after our decision

Shortly relating the statutes to the issue and modified addressed changes of Two are as a condition restitution dissenting opin- majority the and relevant to particularly First, legislature added sec. the Huggett. ions in 973.09(3)(b), Stats., provides part in relevant that which discharged from probationer shall not "[a] . . . has been of the ordered restitution payment until that there is substantial made or the court determines require to This lan- payment." reason not to continue language the of sec. guage specifically qualifies 973.09(3)(a), for the deci- majority which served as a basis 973.09(3)(a) in Section states: "Prior to the Huggett. sion court, any probation period, of the for cause expiration order, extend for a stated by may the terms and conditions thereof." While the modify 973.09(3)(a) presume pro- to majority in read sec. Huggett place to the should cease and burden on state to bation 973.09(3)03) extending probation, spe- sec. show cause for should be extended unless cifically directs probationer prove can there is substantial reason not This modification demon- require payment. to continue to legislature's emphasis increased on a victim's strates right compensation and a defendant's fulfillment of the obligation. restitution 973.09(lm)(a),

Second, legislature added sec. Stats., determining provides which the amount "[i]n restitution, the court con- payment and method of of shall pro- future of the ability the financial resources and sider provide The court of pay. may payment bationer up pe- to but not excess of the restitution victim also cuniary by loss caused the offense." While section costs, the court could order provides recognized importance restitution legislature the victim "The shall consider interest of saying: determining receiving whether restitution when we Id. To facilitate restitution payment of costs." order that trial courts should determine emphasized often have imposing restitution. pay when probationer's ability Gerard, 57 800; Wis. 83 Wis. 2d at State v. Huggett, See legislature placed now in 621. has 2d at Because restitution, emphasis importance of a creased appropriate amount court's initial determination of increased as well. The enactment sec. of restitution has 973.09(1m)(a) legislature's demonstrates the awareness initial determination. importance 973.09(1m)(a) 973.09(3)(b), together,

Taken secs. Stats., expressed I in my concerns many alleviate 973.09(1m)(a), the court Under sec. Huggett. dissent resources and fu must the defendant's financial consider presen- A imposing ability ture when restitution. to court set forth the investigation report tence the should situation, and the state and defend defendant's financial the res realistic prepared ant should be offer alternative, the of a proposal. As an in absence titution parties, by the report and recommendations presentence of restitution as condition if the trial court establishes the probationer the and court should direct probation, the thirty days within officer to return the court probation light in plan which is feasible proposed payment with a pay. present ability future probationer's and and to the to the state report be made available should the entire proposed payments for victim. If sum the the resti to fulfill probation appears term insufficient assessed, the court previously tution the court which restitution, indicate or could modify could the amount extension, for statutory provisions that it will utilize the circumstances financial depending upon the defendant's proba Because period. probationary at the end plan, payment structuring tioner in a feasible is involved 973.09(3)(b) probation it makes sense that under sec. completed if restitution is not should be extended accord- probationer ing plan, unless establishes sub- discontinuing payment. reason for stantial approach serves the prospective This interests of the victim, probationer, society. The victim receives restitution, develops probationer responsibility, does not have to incarcerate the society defendant. Fur- ther, regardless equitably, it treats all defendants of their wealth, offering indigent defendants the same opportu- probation nity wealthy By working for defendants. to- gether prospective approach, probation with this offi- cer, judge, probationer the trial and the can avoid the miscommunication, evidenced in this case and in Huggett, in subsequent which can result extensions of restitution, probation prior release from to fulfillment of or revocation of case,

Turning instant the facts are similar to those in In 1975 Davis Huggett. guilty was found of wel- placed probation fare fraud. She was for years, five upon $1,467 with conditioned restitution, Department in the manner directed by the of Health (Department). and Social Services When Davis satisfy obligation failed to her restitution five-year period, probationary the court extended her year. one When Davis still had completed payments, court extended her for two more Fi- years. nally, eight expired, after had the court ex- tended years, again noting Davis's for two more obligation. that she had not fulfilled her restitution This appeal focuses on the trial court's most re ‘ent decision to years. extend for two Although the facts of this case are similar to those in Huggett, question the we must answer here was left un- answered in Huggett: complete When is failure to restitu- 973.09(3)(a), extending probation tion cause for under sec. majority opinion question Stats.? The to fails address this

510 references to factors making only occasional adequately, analysis. might cause affect the which complete restitution whether failure to To determine 973.09(3)(a), extending under sec. is cause for Stats., Huggett Hug- should return to majority the of "cause" for exten- that the issue concluded gett majority tried, fully and remanded had not been sion there was hearing for a determine whether the matter dicta, In probation. Huggett majority extend cause to approaches determining for possible two described a approach, Under the first court whether cause exists. probation if resti- extending additional may find cause objectives and if promote tution would negligible pay- than probationer can make more may not find Using approach, the second ments. capacity pay and has probationer if the lacks cause during probation. good pay effort to faith demonstrated case, the opinion majority its in this does not use In any degree clarity. Ap- approaches these with either of focusing approach, majority the first parently on it several facts from which concludes makes reference to promote objectives will not further restitution paid already suffi- probation because the restitution Shifting objectives promoted the ciently it quotes page approach, which the second highlights facts which majority several slip opinion, good effort Davis's faith purportedly demonstrate debt, Davis still neglects but to mention that repay negligible than capacity more possesses and, fact, offered to exe- amounts toward restitution assignment. wage cute a 973.09(3)(b), Stats., the ma-

Purportedly applying sec. extension of the trial court's jority also concludes of discretion because probation constitutes an abuse solely to assure extension was intended the record restitution and because complete would tioner discontinuing pay- reasons" for "teems with substantial First, disagree both ments. I with rationales. the statute courts extend to assure that clearly directs Second, probationers complete restitution. I not do be- record "teems with lieve the substantial reasons" for dis- Rather, continuing I payments. per- believe reasonable disagree good sons could about whether Davis made a to complete faith effort restitution.1 majority adequately The not fails to address "cause," question ignores legislature's it also enact- 973.09(3)(b), Stats., ment of sec. when it declares "the justice system per- criminal should not employed form agency," Majority opin- the functions of a collection p. ion significant at and concludes that this case is "of precedential importance ... it because demonstrates the use improper process of the criminal to collect what eventually became more than civil Majority no debt." opinion p. at 499. The struggle gain legislative and judicial recognition rights of victims' has made substantial progress. majority's assertion that must victims seek a remedy civil rights deals victims' severe blow and defies legislative directive and common sense. The enactment of 973.09(3)(b), sec. presumption with its that should complete, continue until restitution is demonstrates legislature intends justice to use the criminal system pay monetary to make criminals restitution to the victims of their The majority may crimes. of the court not resources, believe this is an appropriate use of state but decision, legislative is a judicial not a decision. Further, extending probation because a defendant has complete failed to any restitution does violate constitu- "Indeed, prohibitions. tional appears such an extension 1According majority, clearly the record showed Davis paying possible the maximum majority toward restitution. See opinion p. indicates, however, at 496. The record that Davis was contributing per Although giving $100 month church. charitable meritorious, substantially it is less when meritorious the contribution is rightfully belong made from funds which to another. Supreme Court when it contemplated been have be consid- required that alternative incarceration] [s] [to ered, payments.' for 'extending the time specifically, 660, (1983)]." See Georgia, v. 461 672 U.S. [Bearden (10th Ortiz, F.2d Cir. United States v. 1418 1984). imposed court restitution

In this case the trial law, $1,467. Although prior even to our case amount of Stats., 973.09(1m)(a), pro to judges instructed assess sec. impose a ability pay payment to and to feasible bationer's Department nor the assessed plan, court neither pay to capability satisfy had the financial whether Davis during period of five-year proba this ment of amount dur admittedly payments made nominal tion. Davis of ing early years probation, but leave. She maternity absent from work twice for she was pay Department never told her to more testified pro 1980 that the obligation. It was not until toward her to the amount attempted determine bation authorities her income and her light to Davis could afford expenses. extending probation when-

I exists for believe cause complete and has fails to probationer ever payments. to make restitution capacity to continue capacity make possessed the to case Davis clearly In this however, believe, restitu- I restitution. also further as a matter inadequate tion is an condition specify a reasonable the trial fails to law when any payment plan. Clarity is fundamental payment payment feasible Trial courts should structure plan. plan requirements of clearly explain the plans and expecta- same parties have the probationer so that all authority formu- delegates its tions. a trial court When authori- plan to the payment a reasonable late ties, discipline probationer court should not the trial misunderstandings. Davis's ambiguities and resulting during her required restitution complete failure initial term largely attributable failure Department of the court and the to establish a structured payment plan, compatible with her ability to pay, through which she could her satisfy restitution obli- gation. Because the trial court failed to delineate a rea- sonable plan, inadequate restitution was an con- dition and Davis's failure complete extending restitution cannot cause for even though she the ability payments. has to continue Ac- cordingly, I concur.

I am authorized to state that Justice DONALD W. joins concurring STEINMETZ opinion. STEINMETZ, (concurring). I join J. Justice Callow's concurring opinion I separately. agree but also write with temper majority tenor but not the of the I decision. believe it ignores happened what here frequently and what in probation-restitution occurs cases. The trial court took position one probation on restitution and the officer took position. another judge responsibility The has the sole for determining disposition guilty after a finding. judge

The trial did not set forth a schedule or method making However, for restitution in original his order. he $1,467 did set restitution at "payments with in such man- department ner as the shall direct." origi- Probation was nally imposed 24, years for five on November 1975. years elapsed

Almost five before judge again saw the defendant to consider agent's request one-year meantime, for a extension of In the the defendant's husband had been prison sentenced to in Thereafter, 1978. the defendant support was the sole children, four, ages herself and her three nine and eleven. At the extension hearing, judge was informed that the paid defendant had only during the first two years $105 probation, during which time her husband was not in- That per carcerated. amounts to about $4.38 month. permit- officer why explanation no There is $1,467 per month toward pay only $4.38 Davis to ted rate, years. At that paid to be five obligation which was years. five The recovered in would have been only $262.80 duty, light judge's initial probation department's establish a years, in five was to full restitution order for or seek a modifica- for full restitution schedule on the defendant's of restitution based of the amount tion ability pay. passed had the de- after five

It was expenses, ability and therefore income and fendant's depart- restitution, by the analyzed were Therefore, department, defend- because ment. her restitution progress satisfying toward made little ant Then, court when the extended obligation. department the defendant ordered year one budgeting per on the basis of a counsel- month pay $20 department asked for an extension that analysis. The or's one-year ex- only collect another $240 would department's schedule still made defendant The tension. accomplishing full restitution ordered far short of fall Nonetheless, department did not advise by the court. of this fact. the court concerning restitu- authority department’s only

The payments. a schedule establish tion department was If the the amount of restitution. ordered accomplished could be- that full restitution aware then the ability pay, the to the defendant lacked cause to fact known the made that should have department If that been done period. early probationary in the judge during the probation, or even the first five extension, would have been able judge the one-year first Davis or ordered alternative charity to order work an determining the effects of job, a after secure second chil- of the defendant's well-being an order on the such credit for per hour agree I regard, $2 In this dren. 515 charity woefully inadequate work is and any amount less wage than the minimum would arbitrary. be In 1981 the defendant returned to court proba- tion was extended for another two years though even probation officer recommended that supervision be dis- Again continued. judge extended years despite another two the renewed recommendation be Certainly, times, discontinued. at those conflict, and under conditions of such department impressed should have been the judge who sets the conditions of department, not the going insist on full restitution before discharge of the defend- ant.

The entire history of this probationary matter shows a contest of wills judge between the who has the authority to order restitution department and the which has the duty to collect the restitution or periodically inform the judge of the impossibility success under the circum- department stances. If the informs the court impos- restitution, sibility paying then judge with the as- department sistance of the can set available imaginative alternatives to the payment of money from defendant's Here, income. a developed conflict between authority of the court and the agent, which did little serve judicial system's necessary cohesiveness. State,

In Huggett 790, 800, v. 83 Wis. 2d 266 N.W.2d (1978), we stated: "We have previously emphasized importance of the trial determining court's ability tioner's pay imposing restitution." I believe that investigation as to ability to pay can and should assigned department to the with the ultimate decision to be made judge and formalized in an order near the commencement of 973.09, Stats., 1979,1

Under sec. effective believe judge, consistent with Huggett, assign may obligation investigation as to the ability defendant's department with report to the court and ultimately an with the abil- defendant's order of the court. Intertwined of restitution that should is total amount ity the as the necessarily be the same may This be ordered. sustained, though even damages total of loss amount preferred the aim restitution. should responsible super- for the lack of department was years of during the first two the defendant vision over judge apparent from this record probation. It for was essential rehabilitation full restitution believed cooperation not have the full He did of the defendant. reaching that result. department eight hearing, after was At the last through depart- judge was informed imposed, except report that restitution had been made ment's degree of success was accom- appears It for $298.48. department judge's persistence because plished by the only ap- more in 1981 willing any to not collect when $1,467 paid by had the defend- been proximately $345 time, department pro- recommended that At that ant. be terminated. bation Stats., 973.09(3)(b), for ex- changed the test

Section complete when the defendant fails to tending probation law, must estab- probationers the new Under restitution. probation when res- to extend reason not lish substantial approaches This collection completed. is not titution State, 83 v. Wis. 2d probation, which Huggett the use of statute. In by the former permitted as not at decried state that continuation regard, majority does alone in order to collect restitution probation in this case this result is mandated of discretion. Whether is an abuse is not or the new statute previous decisions by this court's did judge by this case because nor resolved discussed hearing, in the rely to or on the new statute not refer applied it on these facts. if order based extension

I would reverse I in Huggett. the test majority's application on the possible conflict case to resolve would wait another 973.09(3)(b), between and the new see. Huggett Stats. Here, to probation, there was not cause extend based on neglect length probation, department the of the in early years probation, the of and the later efforts the judge to collect restitution that varied or orig- added his Changes inal permissible order. orders are but matters of notice and must reasonableness be consid- ered. CECI, (dissenting). January 1, J. J. Between

LOUIS 1, 1974, $14,672.79, April earning and while county of taxpayers defendant cheated the Milwaukee out $1,237.00. felony of is jury That what found she and, stated, simply is what the committed amount trial pay. majority court her to ordered Yet the now lambasts the trial full court for defendant's failure to make restitu- tion. placing probation,

When first her on the trial judge that, specified as a condition she make resti- not, tution. She did properly extended her agree I with Justice Callow's concurrence to extending extent that cause for exists probationer whenever a the capacity has make full res- titution, yet fails do so. The record indicates that at the 15, 1983, November hearing, defendant earning hour, per $9.50 her husband had earning a net in- per come of They month. $400.00 had two cars and bud- geted for church tithes and $145.00 $50.00 entertain- ment, among things. other Davis clearly had the capacity addition, make further restitution in this case. In there nois substantial reason require not to further restitution 973.09(3)(b), payments from the defendant. Sec. Stats.1 part: probationer This subsection states relevant "A shall not discharged from until of the ordered restitution .. . has been made the court determines that there substantial require payment." reason not to continue to Further, in the trial find no abuse of discretion I plan. The to set a more detailed restitution court's failure disappointing appre- lack opinion evidences majority operations ciation and concern for realities Milwaukee system criminal trial court overworked 37 circuit court county has county. Milwaukee judges; analysis of the director of weighted caseload state has judges. state for 48.4 courts shows need adequate sup- supply fit these courts with an seen assistants, secretaries, graduate law port staff either clerks, opinion now will re- majority or interns. Yet analysis of quire judge get trial involved in the that the where, when, much, what, and how often shall how of the payments the satisfaction defendant make toward to per- restitution. The trial court's failure court-ordered plan does not con- repayment draft a restitution sonally abuse; the fact that the trial court properly, more stitute department reflects the duty left that facts a trial caseload. heavy of majority's preclusive

I must comment about also opening remark at the Novem- reading of the trial court's 1983, 491, 15, Majority opinion pp. ber at 492. hearing. Obviously, the trial court had read the record and the probation report apprised posture and had been of the of majority's extrapolation before it. case The it consider court thus made known that would not other circumstances is unfounded. dispute majority's

I of the defend- characterization being good ant's an exhibit faith. restitution conduct p. opinion, majority categorically states at 497 justice system "We no why see reason the criminal these continu- circumstances, repeatedly and where Dauis has relinquish its ously good faith, should demonstrated added.) remarkable (Emphasis This upon hold Davis." directly not be premise piece of need confabulation me, that the suggest than to controverted other 17, court on November with the agent's report tion filed paragraph page quote I full the last be reread. report: of that during the first two of su- payments

"Miss Davis' good as a faith effort. pervision cannot be described However, good faith effort more of a there has been present. though up until the Even Miss that time from ability to make substantial not have Davis does obligations monthly on a basis payments toward court probation should be ex- future, it is felt that in the mainly good a there was not tended because faith effort a during term. Since there is sub- overall owing, it is also amount stantial felt opportunity have the to show more Miss Davis should make restitution to convincingly good effort faith reason, case. For this it is proper claimant Also, inappropriate. that a remittance is since this felt began supervising in November of 1978 agent her case adjustment no approximately there have been serious is, problems supervision. That Miss Davis maintains residence, steady employment, place suitable [Emphasis family could." provided for her as best she added.]

Moreover, majority, having after it is curious how emphasized portion passage, concludes read apparent . . . lack of effort "[i]t [an] impelled supervision first two pro- that the court continue Davis on agent suggest tion 489, 490. opinion pp. Majority at bation." 973.09(3)(b), Stats., opinion cites sec. majority 973.09(3)(a), ignores sec. which reads as conveniently period, expiration any probation follows: "Prior order, court, may for cause and extend the terms and conditions modify for a stated It that the court had this section thereof." is obvious fulfill the in mind it insisted that the defendant when complete and make full and original terms restitution. not abuse its discretion trial court did

Because the ability has the certainly the defendant because I dissent. payments, make further LONG, E. MARRIAGE OF: James RE the IN Petitioner-Respondent,

v. LONG, Respondent-Appellant- A. Kathleen

Petitioner. Supreme Court February Argued September 1985. Decided No. 84-1667. 11, 1986. (Also 350.) reported in 381 N.W.2d

Case Details

Case Name: State v. Davis

Court Name: Wisconsin Supreme Court

Date Published: Feb 11, 1986

Citation: 381 N.W.2d 333

Docket Number: 84-588-CR

Court Abbreviation: Wis.