State v. Oakley

Plaintiff-Respondent, Wisconsin, State

v. Defendant-Appellant-Petitioner. David W. Oakley,

Supreme Court January argument Oral 2000. Decided No. 98-1099-CR. 9,May 2000. 2000 WI 37 786.) (Alsoreported N.W.2d in 609 defendant-appellant-petitioner, For the there by Timothy Kay Kay Kay were briefs T. & Law argument by Timothy Firm, Brookfield, and oral T. Kay. plaintiff-respondent argued

For the the cause was attorney general, Daniel O'Brien, J. assistant with Doyle, attorney whom on the brief was James E. general.

¶1. SHIRLEY ABRAHAMSON, S. CHIEF published JUSTICE. This is a review of a decision of appeals, Oakley, the court of State v. 226 Wis. 2d (Ct. 1999), App. affirming judgment 594 N.W.2d 827 Sheboygan Court for of the Circuit an order and County, Judge. Murphy, We Circuit Court B. John appeals. David court of decision of the reverse Oakley, intimi- of witness defendant, convicted was 940.43(3) (1997-98).1 in violation of Wis. dation imposed pro- sentence and withheld The circuit court years. period of the conditions three One bation for an would that the defendant was of his imposed previously fine and forfeiture old, prior convictions.2 the defendant presented a circuit is whether issue 2. The require fine that anof proba- prior imposed as a condition in a sentence was violation of conviction when for a new tion probation exposes to incar- the defendant condition will be to the to statutes subsequent 1 All references otherwise noted. text unless 1997-98 2 paid to be in fined a total of $2517 had been The defendant operating a motor pleading no contest to sixty days in 1989 after "fined" for disor $100 In he was after revocation. 1993 vehicle $185.80, fees, paid to be for a total of derly plus various conduct disorderly sentencing for days appear he for in after failed to disorderly charge was an ordinance viola conduct conduct. The money more offense, penalty is tion, criminal and the not a for At the time of the conviction accurately labeled a forfeiture. paid a intimidation, $100 had total the defendant witness of the amounts still owed most the 1989 fine and thus against imposed in 1989 and 1993. reference, the body opinion of this addresses ease of the

For the and not the forfeiture for the 1989 criminal offense fine for reasoning opinion disorderly charge. The of our conduct however, imposed in 1993 civil the applies, to the forfeiture also collect- provides the method for Wisconsin Stat. 66.12 offense. to mean We read that statute ing in a civil action. a forfeiture probation as a condition of cannot be enforced that a forfeiture 973.09(l)(a). under county jail

ceration in for more than six months. In the present upon case, revocation of the defen- subject years dant would be to a maximum term of ten prison. Judge Snyder conclude, We as did in his dissenting opinion appeals, impos- in the court of ing payment the of a fine as a condition of this case violates Wis. Stat. 973.07. provides

¶ 3. Section 973.07 that if a fine is not paid required by sentence, a defendant be county jail period committed to the for a fixed circuit court not to exceed six months until the fine is paid discharged. or We therefore conclude that the cir- by denying cuit court erred as a matter of law defendant's old, motion to strike the of the unpaid fine as a condition of for the new exposed offense, because defendant would violating more than six months in probation by failing condition of the fine.3 We appeals reverse decision of the court of and remand the cause to the circuit court with directions to vacate old, of the fine as a condition of the probation.4 defendant's question This case does not raise the of whether a circuit may impose probation payment as a condition of of an penalty upon fine if the revocation of does not county jail.

exceed six months outstanding The circuit court has means to enforce the old, unpaid against may fine the defendant. The court issue a judgment for the amount and direct the clerk to file and transcript judgment docket a the under Wis. Stat. 973.05(4)(a). may assigning The court also issue an order the § (c). 973.05(4)(b), wages defendant's or other income under 973.07, Pursuant the defendant be committed to the dispute. in On ¶ of the case are not 4. The facts against complaint July filed was 3,1997, a criminal alleging in intimidated a witness that he defendant 940.43(3). After the defendant Stat. of Wis. violation charges, pled the circuit court found to the no contest imposed guilty, and sentence withheld the defendant years. period The court estab- of three for a probation: First, conditions of lished three six months to serve defendant was ordered up county jail, front, and four two months served with abeyance. Second, the defendant was months held or the vic- no contact with victim to have ordered family. ordered to Third, the defendant was tim's imposed previously unpaid fine that had been an totaling approximately prior $2600. for a conviction brought post-conviction ¶ The a defendant the fine as a condition strike the motion to probation. motion, court denied his The circuit of his appeals appealed. The court of the defendant and judgment and the order of of conviction affirmed denying motion. the defendant's the circuit three the intersection of 6. This case involves 973.09(l)(a) §§973.05(2), and statutes: Wis. interpretation application of the three The 973.07. present undisputed case is a to the facts statutes indepen- question this court determines of law that appeals, dently and court of of the circuit court analyses. benefiting from their 973.05(2) authorizes a circuit court 7. Section part impose fine as of a sentence and to make a the fine a condition of "When placed is sentenced to and is also defendant fine paid, period the fine is for a fixed the court until not to exceed six months. probation, may

on the court make of the 973.05(2) probation." § fine. . .a condition of Wis. Stat. added). 973.05(2) (emphasis govern Section does not govern arising case, this and this case does not cases 973.05(2). present § under The in defendant case arising was neither sentenced to a fine out of the probation placed conviction that resulted his nor on probation when the defendant was ordered to a 973.05(2) any fine. Neither nor other statute expressly require payment a authorizes circuit court to probation old, of an fine as a condition of for new Thus conviction. we must look further for the cir- authority impose cuit court's of an probation fine as a condition of new conviction. 973.09(l)(a) grants

¶ 8. Section a circuit court imposing broad discretion conditions of may impose, according The circuit court to Wis. Stat. 973.09(l)(a), "any appear conditions which to be rea- appropriate."5 sonable appropriate and Reasonable and probation conditions of are those that protect rehabilitate offender interests of society. Heyn, 621, 627, 2d See State v. 155 Wis. 973.09(l)(a) Wisconsin Stat. states in full: (c)

Except provided par. prohibited or if for a statute, crime, particular person offense if a is convicted of a court, by order, may impose withhold sentence or sentence under s. execution, stay place person 973.15 and its and in either case stating department period, to the for a stated in the order may impose any The the reasons therefor. conditions which appear period appropriate. reasonable and The be charge, made a sentence on a different consecutive to imposed previously. If whether at the same time or the court imposes an increased term of as authorized under sub. (2)(a)2 (b)2, place doing or it shall its reasons for so on the record. (1990); Huggett State, 2d v. 83 Wis. N.W.2d (1978). 798, 266 N.W.2d repay- appeals ¶ that The court of reasoned 9. appropriate and the fine was a reasonable ment of repayment probation would of because condition the defendant's defiant atti- rehabilitation of aid system. judicial The State and the towards the tude disagree requiring the defendant to defendant whether probation upon unpaid pay of old, fine as a condition an crime is a reasonable of another unrelated conviction appropriate do not condition of We and explain below, because, as we we address this issue of contravenes conclude that this condition Wis. Stat. 973.07. powers governs

¶ 973.07, which 10. Section pay fine, fails to a is a circuit court when a defendant applicable to this case. Section 973.07 the third statute by required .[is] paid. . .as that "if the fine. . not states may to the sentence, the defendant be committed .[is] county jail paid discharged.. the fine.. or .for until by period the court not to exceed 6 months."6 fixed provides Stat. 973.07 as follows: Wisconsin assessment, fine, costs, assessment, penalty jail crime victim If the drug surcharge, crime and law and witness assistance laboratories assessment, analysis applicable deoxyribonucleicacid enforcement improvement surcharge, applicable drug program abuse assessment, applicable surcharge, applicable domestic abuse surcharge, applicable improvement enforcement assess- driver assessment, 253.06(4)(c), applicable weapons ment under s. assessment, employer applicable applicable uninsured environ- assessment, assessment, protection applicable mental wild animal applicable applicable natural natural resources assessment and paid community payments are not or service resources restitution 943.017(3) by completed required not the sen- work under s. tence, may committed to the until the the defendant be assessment, assessment, fine, costs, jail penalty and crime victim surcharge, drug crime and law witness assistance laboratories the circuit court argues 11. The defendant conviction, a new not, by using probation in county jail maximum period extend the six-month failure an 973.07 for by Wis. prescribed if in this case argues fine. The defendant requir- he not the terms of his does abide fine, he may, him to ing than six to more exposed revocation maximum sentence county Indeed, months in jail. crime the defendant was convicted is for the for which ten years imprisonment. contrast, asserts that the cir- In the State intend to revoke the defendant's

cuit court did not term should ten-year impose prison the fine. The circuit court's the defendant fail to pay the hearing post-conviction statement at the on this motion, making the State relies upon which disagree in the We with margin.7 is argument, printed analysis assessment, applicable deoxyribonucleic acid enforcement drug program improvement surcharge, applicable abuse assessment, applicable surcharge, applicable domestic abuse surcharge, applicable improvement enforcement assess- driver assessment, 253.06(4)(c), applicable weapons ment under s. assessment, applicable applicable employer environ- uninsured assessment, assessment, applicable protection animal mental wild applicable applicable or natural natural resources assessment discharged, payments paid are or or the com- resources restitution 943.017(3) completed, period munity a work under s. is for service months. fixed the court not to exceed 6 hearing, 18, 1998, motion post-conviction 7 At the March Judge Murphy remarked: you, general typically [is] throw back fines

I can tell the rule we actually it to we found seems bene- on conditions because all, standpoint many it First of from the fit of the defendants. past upon responsibility financial imposes for some them a certain defendant, healthy obligations. the in terms of that's for We believe his overall rehabilitation. interpretation the of the circuit court's com- State's hearing post-conviction ments at the on the motion. practical level, But I think on a more we have found that while on time, probation, periods typically extended defendants have opportunity pay an an to these fines back in installment fashion. them, help find that that seems to the alterna- We overall because Oakley county jail I tive for Mr. is will have him committed to the days, coughs up money. for 96 and unless he the We not have Oakley's preference chosen to do that. If that Mr. to would be serve days money, in the and still owe us the that can be arranged. really thought given good But I he was chance here to make time, money three-year period this over a which should be some- thing accomplish, hope, being I I he can would and saw that as and, helpful helpful society specifically quite to him and also to helpful Sheboygan County, [to] to since we make a real effort make somebody they actually pay money. sure that fine when we they pay money punishment Because when don't was 100% meaningless. give person There is no reason to a fine and not paid. pay have it He can it on I be because believe that way alternative, would be the best for him to do it. Or in the I will county jail, him to the have committed and then he can money get days, himself out or do his 96 and he still owes us the money. go I think the route to is stick If it best with the becomes impediment being an to him released from at the end of term, regard. his I consider at that time his efforts in that would It believe, possible, Oaldey might is I that Mr. not able to years. doesn't, entire sum within three But if he I want to know made, why expect not what efforts he's and I will agent provide I me with information. am not inflexible with regard things person making to these if a a reasonable effort good consistent their financial abilities to make on one with oftheir obligations probation under the condition. all, condition, past I First believe it's a reasonable because it is a Oakley yet punished crime for which Mr. has not been because he part punishment. didn't That fine. was of his Secondly, Oakley get up, it Mr. benefits to this matter cleaned not, county jail, if because he will be incarcerated in the is which Oakley, though might not to beneficial Mr. it be beneficial to society. could A of a condition of violation The of con- judgment lead to a revocation of the fine is a states simply viction hear- sentencing Indeed at the condition of probation. if defendant court made clear that ing the circuit the proba- to the conditions of up probation, did not live defendant revoked, would tion would be circuit court would returned to circuit court and the of time avail- the defendant the maximum amount give The law, namely years prison. under ten able sentencing the defendant at the circuit court warned hearing as follows: probation, you If you your

THE COURT: botch away. taken That's what get your probation have to They will revoke department will do. they you then send back to your probation, and will you, Oakley, Mr. happy me. I not be to see will and last chance. your second because probation, unsuccessful you If come back here with give you the maximum probably going I am to law, to me under amount of time available inclined, you So if are years prison. which is ten to screwing regard to this off while on seeing I in mind that will be your obligations, keep from you going go right then are you again, and here, you That's not what want right up to prison. do. to ever I have no wish you

I want to be successful. do, much you pretty But if I can you again. see proba- a condition of denied. will leave that on as The motion is We get [Oakley] just effort to make a reasonable tion. Let's see David money up. paid explains this refer- nor the State Neither the circuit court days. ence to 96 going you. I am the boom on Any

assume lower questions that? about

THE No. DEFENDANT: ¶ 14. The conditions of the defendant's judgment in the set forth of conviction and the circuit sentencing, court's comments at the as at the well hearing post-conviction clearly motion, on the do not indicate the term of incarceration to which the defen- subjected dant would be should the defendant fail to pay the fine. The maximum sentence for the conviction years prison. is ten in expressly Stat. 973.07 Wisconsin limits collecting period

incarceration as means of a fine to a county jail Accordingly in not to exceed six months. we conclude that the circuit court erred as a matter of law making of an fine a condi- tion of for a new conviction when violation of exposes the condition the defendant to incarceration county jail for more than six months. supported by

¶ 16. This conclusion is the lan- guage legislative history § 973.07, Wis. interpreting §§ 973.07, and case law 973.07 and 973.09(l)(a). plain 17. The words of Wis. Stat. 973.07 that

the defendant be committed to "for a period fixed the court not to exceed 6 months" for pay legislature's failure to a fine demonstrates the imposed intent to limit incarceration for the failure to outstanding an fine to no more than six months in county jail. legislative history

¶ 18. The of Wis. Stat. legislature's § 973.07 also reflects the intent to limit length of incarceration for failure to a fine to six county jail. years, months For more than 120 legislature nonpayment has limited incarceration for county jail. See, a fine to no more than six months in §959.055(1) (1967); e.g., Stat. Wis. Wis. Rev. Stat. (1878) statutory § This consistent limitation on strong pay support for failure to fine incarceration a today. for our decision interpretation § 19. Our of Wis. Stat. 973.07 is supported by

further case In Schuman, law. State v. (Ct. 1993), App. 743, 173 Wis. 2d 496 N.W.2d 684 appeals provides § court of held that a six- 973.07 for may month limit on the time a defendant incarcer- nonpayment appeals ated for of a fine. The court of declared that once a defendant has served six months county jail nonpayment fine, for of a the circuit court upon not issue another commitment order based pay fine. defendant's failure to The court of although appeals § concluded that 973.07 has been years, amended times over the the six-month several limitation on incarceration has remained Schuman, constant. 173 2d at 748. The Schuman Wis. legislature court further concluded that when the provide it intended a threat of enacted the statute to for payment, incarceration to coerce it also intended to but limit that threat. preceding cases Schuman inter- 20. Several

preted § versions of Stat. 973.07 as earlier Wis. limiting ability the state's to incarcerate a defendant county jail defen- for more than six months in when the e.g., paid See, fine. dant a State ex rel. Pedersen has not Blessinger, 290, 286, v. 56 Wis. 2d 201 N.W.2d (1972)(noting legislature adopted that the a six-month limit to collect a fine if six incarceration because payment, induce months' incarceration will not fruitless); longer Starry State, time v. 115 Wis. will be (1902) (1898) (noting that Stat. 90 N.W. Wis. jail expressly § to forbids indefinite commitments fines); State, the failure Bonnville v. to 53 Wis. (1882) (concluding legis 680, 689, 11 N.W. 427 (1878) adopted lature Wis. Rev. Stat. 4633 for the express purpose limiting incarceration in all cases of fine). nonpayment aof argues

¶ 21. The State Wis. 973.09(l)(a), grants power which circuit courts the any [of "impose probation] appear conditions which appropriate," be reasonable and should be read to allow a circuit court to fashion conditions and to override the limitation on incarceration for failure to provided fine 973.07. Heyn,

¶ 22. The State relies on State v. 155 Wis. (1990), support interpre 2d 456 N.W.2d 157 to its 973.09(1)(a). Heyn §§ tation of Wis. Stat. 973.07 and In required burglar, the circuit a convicted as a con probation, compensate dition of to for victim burglar system. installation of a alarm Wisconsin Stat. 973.09(1)(b) (1985-86) § limited restitution as a condi compensation pecuniary of tion to for a loss.8 agreed compensation sys This court that the alarm compensation pecuniary tem was not for a loss and therefore did not constitute restitution under Wis. 973.09(1)(b)(1985-86). § Stat. Heyn

¶ court, however, 23. The concluded that require the circuit court could the defendant to com- 8 973.09(1)(b) (1985-86) Stat. provided Wisconsin § rele part vant as follows: places person require If the court the court shall designed compensate pecuniary

restitution the victim's loss resulting possible, from the crime to the extent unless the court finds there is substantial reason not to order a restitution as condi- probation. require paid If tion of the court does not restitution to be victim, to a the court shall state its reason on the record.... system pensate for the alarm under the the victim (1985-86). 973.09(1)(a) Heyn § The statute, 973.09(1)(b) (1985-86), governing § resti court viewed concurrent with tution, cumulative and 973.09(l)(a) (1985-86), general probation § statute, usurped neither and held that the restitution statute Heyn, abridged general probation statute. nor Connelly, (quoting 2d 2d at 628 State v. Wis. Wis. (Ct. 1988)).9 500, 505, N.W.2d 859 App. argues present in the case that 24. The State 973.09(1)(a) §§ inter Stat. and 973.07 should be

Wis. way interpreted preted that this court the same 973.09(1)(b) (1985-86) 973.09(1)(a) (1985-86) § § Heyn. urges § words, 973.07, in limiting In other the State nonpayment fine,

incarceration for the and concurrent with should be read as cumulative § 973.09(1)(a), general probation statute, and that usurps abridges general proba or 973.07 neither nor restricts the circuit court's broad tion statute fashioning conditions of discretion interpretation reject 25. We the State's Wis. 973.09(1)(a) §§ The statute at issue in and 973.07. 973.09(1)(b) (1985-86), Heyn, required the circuit types restitution, is, to order certain court to order compensation under certain circum victim why explain it did not do so. stances, or to on the record 973.09(1)(b) (1985-86) Nothing indi in Wis. Stat. legislature to limit a circuit cated that the intended compensate ordering a victim a defendant to under the did not constitute restitution for items that Brown, See also State v. 2d 497 N.W.2d 174 Wis. (Ct. probation a condition of App. 1993)(upholding for tuition pay his sexual assault victim $7000 defendant classmate change schools to avoid incurred when she had to assault). resulting harassment from the legislative statute. Indeed the intent to be drawn from 973.09(l)(b) (1985-86) legislature § was that the ordering the favored circuit court's a defendant to com- pensate a victim. specifically § contrast, In Wis. Stat. 973.07 collecting by

limits a circuit court's means of fines incarceration. Our case law has determined that the legislature § intended 973.07 to limit a circuit court in enforcing the of fines incarceration. Allowing a circuit court to enforce collection of fines 973.09(l)(a), general probation under statute, pay unpaid when failure to old, fine results in a being exposed defendant to more than six months in county jail, permit would a circuit court to do what legislature expressly forbade in 973.07. We conclude legislature did not intend such a result.

¶ 27. We thus conclude that the circuit court erroneously erred as a matter of law, and thus exer- by setting cised discretion, its forth as a condition of unpaid of an old, fine when the exposed defendant would be to more than six months in county jail pay for failure to the fine. This condition of pay present an old, fine in the case statutory conflicts with the clear mandate in Wis. Stat. 973.07 that incarceration for failure to a fine is limited to incarceration in for no more than six months. appeals 28. The decision of the court of

reversed and the cause remanded to the circuit court with directions to vacate the condition of the defen- requires dant's the defendant to fine. By appeals the Court.—The decision of the court of is reversed and the cause remanded to the circuit court. agree (dissenting).

¶ I WILCOX, 29. P. J. JON way this Justice Prosser that the correct to resolve with may impose that a court old fines as a case is to hold comply that failure to with condition of but cannot result in incarceration for more such condition county jail. six months in the than separately point ¶ 30. I out that what the write judge practice trial did in this case is a common in some good By state, circuit courts in this and with reason. failing payments past, in the to make court-ordered disrespect defendant in this case has demonstrated his contempt authority and his for the of the law entirely appropri- court. It is therefore reasonable unpaid old, ate for the court to address the setting fines when of for the defendant's new conditions Imposing offense. such a condition is well within the under Wis. Stat. 973.09 and court's broad discretion expressly prohibited is not under Wis. Stat. 973.07.1 flexibility therefore would not interfere with the courts' setting old, to address fines when conditions of long probation in as the court makes a new case as penalty clear that the for failure to the fine is no county jail. in the more than six months incarceration that the 31. I share Justice Prosser's concern implicitly of holds that the probation except in a fines can never be a condition of Instead, of misdemeanor cases. the enforcement few separate require old fines will now commencement judicial proceedings. additional It is unfortunate that judicial required to enforce resources will be fines the court's discretion under Wis. of old when enough clearly these mat- broad to address 973.09 ters as conditions for clarification. I would remand the case authority require as condition

The court has the probationer probation that the be confined. On clarify remand, the circuit court therefore could that probation one of the conditions of the defendant's pay that he either the fines or serve six county jail. probation period in the I months of his probation such a of believe that condition would be appropriate § reasonable and under Wis. Stat. 973.09 and be consistent Stat. 973.07. would with Wis. respectfully ¶ I reasons, 33. For the above-stated dissent.

¶ I am 34. authorized to state that Justice joins T. PROSSER this dissent. DAVID (dissenting). PROSSER, 35. DAVIDT. J. David Oakley intimidating was of a W. convicted witness negotiated plea after his of no contest. The court with- Oakley placed held sentence and ordered for 36 months. The court established several conditions probation, including of two "old fines" Oakley Sheboygan County. owed One of the old part Oakley's past fines was sentence for a criminal actually conviction; the other was a civil forfeiture imposed past Together, for a ordinance violation. monetary penalties Oakley $2,602.80. two totaled later challenged making payment the lawfulness of of these majority fines a old condition of his The upholds challenge. disagree respectfully his I dissent. Oakley's

¶ 36. There is no reason to believe that Consequently, has ever been revoked. we can only speculate happened what would have had Oakley's probation pay been revoked for failure to Oakley's probation If two fines. had been revoked for failure to fines those and he had been

544 sentenced either to state correctional institution or to jail filing months, more than six I would not be concluding Rather, dissent. I those would be sentences inconsistent were with Wis. 973.07. Schuman, 743, State v. 2d 496 684 Wis. N.W.2d (Ct. 1993); App. see State ex rel. Pedersen v. Bles also (1972). singer, 2d Wis. N.W.2d majority making case, In this holds that old fines a condition of for a felony potential that carries a maximum sentence of years statutory ten "conflicts with clear mandate Stat. 973.07 that Wis. incarceration for failure to a fine is limited to incarceration in for no Majority op. more than six months." at 27. Inasmuch Oakley was sentenced to more than six never majority grounds Oakley's months, the its decision on "exposure" to a sentence of more than six if his months Majority op. ¶¶ 2, 3,11,15, were revoked. at disturbing exposure principle 27. This is because it possibility bases this court's decision on the mere of an sentence, unlawful and it creates' confusion for the future.

¶ Stat. 973.09 sets out the basic Wisconsin (l)(a) principles the statute of Subsection of impose "any proba a court to conditions" of authorizes appropriate." appear and tion "which to be reasonable grants language the circuit court "broad discre This Heyn, 621, 627, tion." State v. 155 Wis. 2d 456 N.W.2d (1990). specific instance, For the existence of 157 973.09(l)(b) authority require resti under to victim authority tution does not inhibit or restrict the appropriate" impose court to "reasonable and circuit payment requiring under conditions other 973.09(1)(a). Connelly, 500, 505, 143 2d State v. Wis. 1988). (Ct. App. any course, Of condi- 421 N.W.2d 859 probation must serve one or more of the tion of objectives namely, the rehabilitation of pro victim, the and the offender, the restoration of community interests. State v. tection of state and (1976); 647, 653, 247 Tarrell, 74 Wis. 2d N.W.2d Huggett State, 790, 798, v. 2d 266 N.W.2d 403 Wis. (1978); 550, 554, Brown, State v. 174 Wis. 2d (Ct. 1993).1 App. N.W.2d 463 Oakley challenges proposition ¶ 39. that the payment appropriate and of old fines is a reasonable probation. The court this condition of challenge. never answers Oakley's It cannot embrace contention with- substantially narrowing given out discretion broad Requiring Oakley circuit his statute to courts. monetary obligations clearly community's in the old Permitting Department interest. of Corrections to Oakley's orderly progress develop oversee an pay- his schedule old fines facilitates obligations resorting ment of overdue without separate imposing jail proceeding or time. Depriving pres- the State of the means to monitor and Oakley unpaid obligations sure of his obligations the State or forces to abandon resort to Vindicating Oakley's challenge incarceration. not does Oakley's Jailing Oakley promote rehabilitation. is not Oakley's interest if incarceration can be avoided. I, 9m, Article the "Victims of crime" amendment to the § adopted reemphasizes Wisconsin Constitution importance part of restitution to the victim as of the criminal justice process. provides part It that "This state shall ensure following privileges pro that crime victims have all of the .restitution; provided compensation_"By tections as law:.. implication, enlarges objectives amendment majority pay- does not conclude that 40. The beyond ment of the old fines is the broad discretion of 973.09(l)(a). the circuit court under Wis. Stat. employs a to reach the Instead, it theoretical device same result. exposure principle

¶ 41. Under the established may by majority, payment unpaid of an old fine not probation any felony for be made a condition of because potential expose penalties of all felonies defendants to 939.50(3). Payment more than six months. Wis. Stat. may unpaid an fine made a condition of old not be probation misdemeanor A all Class for a Class because pen- expose potential A misdemeanors defendants to a 939.51(3)(a). alty In of nine months. Wis. Stat. theory, only then, of an old fine could made be (90 probation B a condition of days for a Class misdemeanor incarceration) a Class C misde- maximum or (30 incarceration). days Such a meanor maximum enforcement condition would not serve as an effective for mechanism because revocation these only to maximum incarceration of offenses would lead days days misdemeanor, Class B or 30 for a Moreover, a Class C misdemeanor. court would be unlikely impose repayment of an old fine of more $1,000 than as a condition of because may imposed B mis- maximum fine that be for a Class only $1,000. The maximum fine for a Class demeanor is majority only The also deter- C misdemeanor $500. may imposed that an old forfeiture not be mines any circumstances. as a condition of under saying explicitly, Majority op. Hence, so at n.2. without majority implicitly of an old rules that fine not made a condition of except, possibly, misdemeanors in cir- for a few minor unlikely to a condition is

cumstances when such helpful. lays ground- exposure principle 42. The Suppose problems. a defendant future

work for subjects felony him C of a Class convicted years. imprisonment Sentence is with- not to exceed places the defendant on held and the court years. three conditions The court establishes for three (2) (1) payment probation: fine; $2,000 of a (3) performance of 200 assessments; and of costs and community if the What is the result hours of service. satisfy any one of the conditions of defendant fails to May probation? revocation, sentence court, after years? up prison to 10 Somewhat the defendant to "yes" grounds surprisingly, the answer must be —on "exposed" anything that the defendant has not been authorized. If the answer were more than the law has grounds Stat. 973.07 limits the "no"—on that Wis. penalty these conditions to for violations of con- time not to exceed six months —then we would be cluding applies exposure 973.07 and the principle set forth in this case was a fiction. way appropriate to decide this case is 43. The 973.09(l)(a) to hold that authorizes the old Wis. Sheboy- fines condition of established gan County However, Circuit Court. Wis. Stat. anyone prevents § 973.07 the court or else from enforc- ing by imposing specific incarceration for this condition county jail. Here, than six months in the sentence more imposed stayed was withheld. Had sentence been Oakley put his failure to com- before was ply could not with the old fines condition grounds for revocation. Probation have served authorities and the court would have had to find some way impose consequences for his defiant non- other payment.

Case Details

Case Name: State v. Oakley

Court Name: Wisconsin Supreme Court

Date Published: May 9, 2000

Citation: 609 N.W.2d 786

Docket Number: 98-1099-CR

Court Abbreviation: Wis.