*1 in error. Wilson, Defendant State, error, v. Plaintiff Argued November No. 75-425-CR. 4, 1976. 29, 1977. March Decided 64.) reported (Also in 252 W.N. 2d *2 plaintiff argued by For error the cause was Patricia, Curley, attorney, S. assistant district with whom attorney gen- Follette, on brief were La Bronson C. eral, McCann, attorney and E. Michael district Mil- County. waukee
For defendant in error there was a brief Hodan, Theodore J. Richard Podell, J. Podell and Hodan argument Podell, & S. C. oral Theodore J. Hodan and Richard J. Podell, all of Milwaukee.
DAY, question J. The is whether a sentence of life imprisonment, following conviction murder, stayed may be placed defendant on probation.
On March Mary Levis Wilson was convicted in a trial jury the court without a contrary 940.01(1) to Sec. Stats.1 the shoot- ing death of her husband. A sentence imprison- of life imposed April 21, ment was on 1975. Execution First-degree “940.01 murder. Whoever causes death being of -another human with intent kill that or another imprisonment.” shall be sentenced to life pro- placed stayed sentence was and Mrs. Wilson adjudged years. also bation for fifteen Mrs. Wilson was guilty contrary state has to sec. 943.02. The of arson appealed requested a writ of error directed from nor judgment That conviction of conviction for arson. is not before us. staying
The state seeks of the order execution review placing of the sentence and Mrs. Wilson subsequent dated and also review of a order of the court July 9, denying motion of state’s June vacating portion judgment for an order which stayed imprisonment execution of the sentence of life placed probation. the defendant on motion state’s requested further the court order execution of the life sentence. *3 strictly
Because the issue before the court an in- terpretation statutes, of the a detailed recitation of the gave necessary. facts rise to the issue not The question judge of whether or not the his discre- abused granting probation tion in in this case not is likewise before the court. impression a
This is case of first in Be- Wisconsin. policy implications present cause of the involved in the legislation subject state of Legis- on the we direct lature’s attention to the matter.
The trial position degree court took the that the first says, murder statute “shall be sentenced. . . It .” does say, punished not by imprisonment” “shall be nor does prohibit probation. probation statute statute2 (1) person Probation. “973.09 a When is convicted of a crime, may, by order, impose withhold sentence or execution, place sentence and pro its and in either case him on department period, stating bation stated in the order therefor, may impose any ap reasons and conditions which pear appropriate. period probation reasonable may be made consecutive to charge, a sentence on a different imposed previously.” whether at the time or same Stats, except provisions. does not sec. grant proba- authority to The trial court decided it had tion and for incarceration. state’s motions denied
Historically two methods has used designating subject proba- not which crimes would possibility tion. to exclude One method has been probation setting punishment forth statute particular See, e.g., 161.28(1), for a (2) crime. 1961.3 Stats. except possibility
The second method has been certain crimes itself.4 Penalties; sentence; parole; “161.28 cmd evidence n procedure prior Any person convictions. vio who 161.02(1) 161.275(1) imprisoned lates s. or shall less years. if, than 2 nor more than 10 For second offense or violating 161.02(1) 161.275(1) case of a first conviction of s. or previously such had been convicted of violation of any state, territory laws United States or of or dis relating thereof, drugs per marijuana, trict to narcotic or such imprisoned years. son shall be not less than 10 nor more than 20 Except for a first sentence not be withheld or its offense shall stayed pursuant parole execution granted to ch. shall not be imprisonment provided until minimum for the of good served, provided fense has time been allowances as less ss. 58.11 and 53.12. Any person “(2) making illegal drugs an of narcotic sale marijuana any person age years under the of 21 im- shall'be prisoned years years. nor less than 3 than 25 For a more offense, second conviction for such such shall be years
for not than 20 less nor more than life. For a third con- viction for such offense such shall for life. Except offense, for a first sentence shall not be withheld or stayed pursuant 57, parole execution to ch. and shall not be granted imprisonment provided until the minimum for offense served, good provided has been less time allowances as in ss. 53.11 and 53.12.” present This is the federal method. 18 U.S.C. 3651 states sec. part: entering “Upon judgment any of conviction of offense 541, by Laws probation C. provided first Wisconsin has version each successive of and 1909. That statute withholding imposition of a distinguished between the first For staying thereof. the execution sentence and pro- existence, thirty-eight years the Wisconsin of its certain prohibited probation for specifically bation law 2, 136, C. sec. 541, 2, 1909, Laws of crimes. In C. sec. 615, 1913, 30, 2, Laws 5 and C. sec. and C. sec. Laws 1919, punishable persons of felonies exceeding placed proba- years terms could not be ten exception deleted year tion. In was over-ten excepted from specific fifteen were instead crimes first-degree law, including probation murder. C. 1931). (sec. 57.01(1), Stats. Laws 1931. gener- 1947, however, In was made iaw exception ally applicable to all felonies with the sole 57.01(1), (sec. abandonment. 477 Laws Stats. C. also, Interim See Comment Committee (1947).) exception There was no made for the various 19U7.5 degrees including murder. of homicide penalty years of ten excess was abandoned When possible probation proba- the criterion in 1931 as felons, except tion made available to all convicted specific therein enumerated in- for the fifteen crimes cluding first-degree murder, provision penalty read as follows: imprisonment, having punishable death or life try jurisdiction against offenses United satis- States when justice public the ends of best interest of fied that thereby, may suspend will be served as well as defendant place imposition or of sentence and execution defendant upon period and such for such terms and conditions best. . . court deems exceptions general. application “57.01(1) made to its except (St. §52.05) (desertion deleted, are 351.30 wife * * * power gives child). The revision the court to fix and ex period length pro not limit and does total tend (1957) p. 384. . .” Sec. W.S.A. bation. *5 degree. killing, Murder, when “340.02 Such first design perpetrated premeditated death to effect the from being, person killed, shall be shall be or of human degree; person murder convicted of and the who first by imprisonment punished same shall be during con- prison in the so state the life of
victed.” manslaughter excepted first-degree from But was probation penalty provision and the statute read follows: Penalty. Any guilty “340.13 shall be who by
manslaughter degree punished in the first shall be imprisonment years prison than ten in the state not more years.” nor less than five first-degree first-degree Both the man- murder and slaughter punished the words, statutes used “shall be imprisonment . .” it is clear that after the but change in the not meant execution of law sentence was manslaughter mandatory first-degree to be in the case of probation except because the statute did not manslaughter probation those for which felonies was authorized. It clear that actual thus seems whether imprisonment required particular de- crime a pended probation statute, course, unless, particular specifically criminal statute itself excluded probation. Thus 1947 when was made possible abandonment, except alternative for all felonies first-degree manslaughter possibility was a though provision that crime still that one so retained punished imprisonment. convicted “shall be .”6 . . reasoning apply The same would applying first-degree murder, since it contained the language penalty same clause. ap-
What is said here about murder also plied kidnapping for ransom. It was one crimes Sec. Stats. 1947. *6 excepted probation from the The 1931 statute. statute Stats, kidnapping 340.56, ransom, a child for reads sec. part as follows: upon “. . punished conviction im- thereof shall prisonment prison during in the state the life person so convicted. . . .” penalty language clause was couched in the same as that for In murder. 1947 when all felonies except abandonment the statute still allowed penalty maintained language, the same sec. Stats. 1947. legislature
In comprehensive 1955 the made a revision of the Criminal Code.7 940.01(1), 1955 reads Sec. Stats. as follows: “First-degree murder. Whoever causes death being another human with intent to kill that or another imprisonment.” shall be sentenced to life penalty provisions ransom, kidnapping for 940.31(2), provided Stats. 1955 likewise that
defendant “. . . imprisonment; shall be sentenced life
[99] construing In primary statute of construc source language tion is the statute itself. State v. Con solidated Freightways Corp., 727, 737, 72 242 Wis.2d (1976). 192 N.W.2d
In this state,
courts
power
have no inherent
execution of a sentence in a criminal case in the absence
statutory authority
except for the
purpose
limited
affording
against
relief
the sentence itself. Drinkwater
v. State,
65, 66,
Wis.2d
(1975).
Sec. 940.01 imprisonment. But degree to life sentenced option above, im- prohibit (b), statute does posing staying This execution of sentence. sentence the trial did. what authority agree
We with the trial court that it had such under statute. If the does eligible particular probation, it want a crime to may past: except particu- do done has what probation statute, prior lar offense from the done *7 1947, penalty provision particular the state in that be execu- offense sentence shall not withheld or its stayed pursuant tion to the In the case statute. clearly provide before us statute does that sentence say may shall not be withheld it not that it but does stayed. be agree
Both the state and the defendant that presented issue 696, here draftsmen of C. Laws of Code, change the Criminal prior intended no law. question, argued The it, as both sides is whether pre-1955 probation upon statutes allowed a conviction first-degree murder. argument
The state’s is that in the 1955 Code the permissive “may” draftsmen used the in word sentencing portion However, of most crimes. new statute, murder the draftsmen retained “shall,” evincing word imprison- an intent mandatory. argument ment be This does address point what mandatory is the sentence and that a stay of sentence is not specifically prohibited. arguments state makes two support basic in of its only that not contention the sentence, imprison- but also ment is mandatory under 940.01(1). sec. The first legislative derives from case law. is based second history surrounding present criminal enactment of the Murphy, ex The state cites State rel. Drankovich v. code. (1946) authority Wis. N.W.2d prior murder statute sentencing language required imprison- mandatory In Drankovich pages 439, ment. at this court said: “. may . . he convicted of first degree. If no so convicted the trial court have would life, prison discretion but him to sentence to state’s for although prisoner years his has served eleven shortly parole sentence apply will entitled to petitioner .. . The then have to an- would commence peculiar other life sentence. Because circumstances only avoiding we have no means of such result. canWe point prosecuted out that if he for and should be degree convicted of murder in the first the matter of justly how much of his term he should serve will be governor matter for the consideration of the he case applies pardon.” But the state fails note that at the time of this decision pro- statute itself which disallowed first-degree murder, bation for then 340.02. (1) reads, Sec. 57.01 Stats. 1945 Suspension sentence. “57.01. Whenever adult felony, convictions under sections 340.02, 340.03, 340.04, 340.05, 340.06, 340.07, 340.09, *8 340.39, 340.40, 340.56, 351.16, 343.09, 343.121, 343.122, excepted, appears 351.30 and it to the satisfaction of the court that the character of the and defendant the circum- likely again stances of the case indicate that he is not good crime, public commit and that does not require provided law, law, penalty by he suffer the shall may, except said provided court by as otherwise by judgment suspend order or the execution stating place probation, thereof and the defendant on order, therein the reasons for the which shall made be part record, may impose and as a condition of making continuing the order or the same in effect 24 pay make or costs
that the restitution defendant shall prosecution, or do both.” 150, of 1931. This section was on C. Laws based 12, April It 1946. DranJcovich was decided decision August, law was was not until 1947 that except apply amended to to all felonies abandonment. quoted 477, previously lan- Thus, C. Laws 1947. guage Drcmkovich, supra, accurately the law reflected question it written; it when on the before us but weight respect to the sub- carries no with law as was sequently amended. 61,
The case of State v. 54 194 Duffy, Wis.2d N.W.2d by and the defendant. is cited both the state “may That case contrasted older statute which be an said version, imprisoned” ... or fined with the amended may imprisoned. .“. . . .” This be fined shall be pointed prior out that to the amendment of sec. 343.44(2) Stats., Laws of the statute C. read as follows: Driving suspended
“343.44 after license revoked or “(2) Any person violating may fined this section imprisoned than more not less nor than $50 $200 except more than 6 months or if a both having operating violates this after had his section privilege offenses mentioned not any of the because of a conviction of revoked imprisoned he in s. shall days less than nor more than 30 for the first days violation of this section and shall be days for the second such violation and each for the third subsequent violation.” 1967, pro-
This statute as amended C. Laws vides : “(2) Any person violating may this fined section not less than nor more than im- shall be $50 $200 prisoned except days months, nor less than more than 6 having that if a violates this after section operating privilege his revoked
had
because
a con-
*9
343.31,
viction of
of the
he
offenses mentioned
s.
imprisoned
days
shall be
than 5
nor
than
less
more
6 months for the first
shall
violation
this section and
days
be
months for
prisoned
violation.
than
not less than 60
nor more
im
2nd such
and
violation
shall be
subsequent
for 6
3rd
months for the
each
and
. ."
The court held to allow under sec. light swpra, 973.09 in 343.44(2), amended principles statutory “would do violence to construction legislature.” would contravene the intent of the Sec. 343.44(2), specific statute, prevail as a to over said statute. analysis
Because this state, case relied on quoted: will be elementary “It principle statutory is an construction together
that statutes must
and harmonized.
be construed
Ordinarily,
specific statutory provision
prevail
a
will
over
general provision
relating
a
penal
in the
code
to the same
subject matter. State ex rel.
Wolke,
Gutbrod v.
49 Wis.2d
penal
pose days a a sentence of not less than five of this of the statutes.” a violation section convicted 54 (Footnote omitted.) 65. Wis.2d say not now The murder statute does imprisoned” rather, “shall sentenced.” “shall but reason, Duffy are dis- For the instant case this tinguishable. distinguished mandatory
Other have the “shall” cases “may.” Camara, permissive from the v. 28 State Wis.2d 365, 371, ; Christopherson, (1965) 137 1 State v. N.W.2d 574, 583, 584, 36 153 631 Wis.2d N.W.2d question But here not whether “shall” is manda- tory, mandated, but what is mandated. Sentence is but imprisonment. language In the of the imposition required statute of sentence is but prohibited. Finally, execution is not state refers legislative specific history concerning enactment of law, ultimately the criminal code. The enacted, as con- tained no revisor’s notes or comments.8 expected, subjected “As to be was 1953 code was to whole changes. Although opponents sale the former code came rewriting around to the view a of the criminal law at they desirable, necessary, highly least if not continued to be changes nearly critical every provision. draft and wanted made in appraising changes, In these it must be borne many merely although many in mind that of them are verbal every change others are It substantive. cannot assumed that language imports change meaning. in a in principal “One difference between the the lack of two codes is *11 1954:
April 29,1954: second-degree “Judge (The Boileau sec. 340.02. read again explain statute) Mr. to asked Platz why necessary to it to ‘shall’ should be word it ‘may.’ says present Mr. Platz said law ‘shall.’ ‘may’ it say more does was mean accurate to inasmuch as Judge discussion, After Good- ‘shall.’ some further suggested given further land the matter some thought hours, 24-48 so.” 3,1954:
June shall “No. 2—Determine whether or not ‘may’ amended, code, or the rather than to insert ‘shall’ respect penalties. with “Judge spoke in favor ‘shall’ Boileau and Mr. Tibbs ‘may’ because, he since Mr. Platz favor said longer applies. no the establishment ‘shall’ probation, throughout ‘may’ Mr. code Mr. Tibbs. The motion was lost.” the word Collins moved by changed The motion was seconded ‘shall.’ argued “may” appropriate Mr. Platz was because Thus disposition. do not an alternative was We changes paired in the text of law.” the multitudinous Code, Platz, 1956 Rev. 353. A. The Criminal Wis. L. William omitted.) (Footnote 9 Legislative prepared Digest Chapters and 343 Advisory Committee the Criminal Code Staff For Technical 29, 1954). (January drafting know, history, it whether was from this alone he the life sentence committee’s intention know, do not mandatory, or the incarceration. We also by the moreover, here considered whether issue draftsmen. statutory scheme, penal there
Where is doubt as strictly statutes construed should be favor 107, 110, 233 E.g., Schaller, State accused. v. Wis.2d N.W.2d 416 grounded policy.
The canon of strict construction is power lawmakers, it within the Since burden lies with them to relieve situation all doubts. Statutory Construction, p. Sutherland on (3d 1968-1973). power ed. declare And “since legislative subject penal what conduct is sanctions is judicial, judicial usurpation rather than risk would legislative penalty function for a court to enforce a unequivocally clearly where had prescribed Id., p. it.” 8. wording
Based on the murder stat- probation statute, ute and the we conclude trial correctly interpreted law of this state.10
By'the affirmed. Court. —Orders 1 0 argues sentencing process which, The that dissent entails a course, probation in the normal includes the “consideration of the integral part sentencing phase. an alternative as of the . . .” The majority quarrel general proposition. no with this as has probation part sentencing consideration, But even if of the legislature rejection does not follow that the intended the of probation “necessary predicate” imposition to be the of merely question. the sentence. This assumes answer to the probation provides may “impose the statute sentence Stats, execution,” place and then the probation. may defendant on the execution Since of sentence be stayed placed probation, and the defendant it is obvious that probation is not a sentence. This court has so stated. Prue v. State, 114, (1974); 216 63 N.W.2d 43 Wis.2d State v. Gib-
29
reluctantly
HANSEN,
(eonewrmg).
T.
J.
I
CONNOR
majority.
concur
the
I do
in
result reached
the
agree, however,
reasoning
by the
employed
the
with
majority
plain
lan-
reach that result. The
clear
guage
first-degree
requires
the
that a
murder statute
the crime
. shall
“. .
be sentenced
life imprisonment.” The
not say
statute does
. . shall
“.
be
punished
. .
“.
.” nor
.
im-
shall be
prisonment
for life.”
the
stat-
Were
ute
ways,
in either
voiced
latter
court’s
two
this
decision
State v. Duffy,
in
54 Wis.2d
N.W.2d
(1972),
imprisonment
would control and
would man-
be
datory; probation inapplicable.
bons,
94, 97,
(1975);
State,
71 Wis.2d
bation statute. erroneously majority dissent attributes to the conclu- change meaning sion that intended a murder statute in do 1955. We not state change language gave judges option, trial an “heretofore 3) Quite (Dissent, explained p. contrary, denied them.” to the we pre-1955 language version, that even under punished by imprisonment” “shall be question was irrelevant to the whether probation Probation, pre-1955 was then available. under the ways: scheme, specific prohibition was denied one two A specific in the substantive criminal or a ex- ception for crime made in the statute itself. prior language Thus, statutes which contained the punished by proba- imprisonment” precluded “shall be sometimes depending exceptions not, specific tion and sometimes did supra,, Duffy, or criminal statute. However authority proposition legislature changes where sentencing provision language “may imprisoned” in a the to be change given imprisoned,” “shall deliberate must meaning. Specifically, the exclude must construed to possibility probation. seeming points illogic Finally, the life- dissent given upon imprisonment-or-probation choice trial court. But second-degree a conviction of murder the court be- must choose years probation. tween a minimum incarceration of five *13 legislative This is a matter. distinguish Duffy, attempts opinion majority
The “. . . in the shall grounds a difference supra, on the lan- . . .” . be sentenced imprisoned . . .” “. shall . distinguishing which factor a guage. is indeed That ma- The in this case. supra, inapplicable Duffy, renders analysis legislative-history however, jority, in its criminal to earlier the relation statute shall/may be initially that “. . statutes, . determined language a imprisoned . .” in criminal . a whether to a determination
irrelevant disagree. interpretation of I An possible. disposition was possibilities in relating legislative intent statutory scheme pre-1955 era criminal code when sentencing mandatory was in relating probation and legislative bearing state, little no confusing has or today. statutory and inconsistencies confusion intent pre-1955 majority, which occurred noted statutory today’s Proba- present scheme. era are not Stats., 973.09, tion, general provisions of sec. under except upon the conviction crime is available legislature prohibited specifically it use has where the imprisoned. language . .” “. . . as was such as shall be supra. 343.44, Duffy, indicated in the case in sec. pro- specific legislature clearly not voiced that has light first-degree In murder statute. hibition 940.01, predecessor language of the statutes to sec. Stats., that a .”, by imprisonment. dif- punished
“. . . shall be legislature now have ficult could to conceive consciously either so convicted be intended that equally placed probation. It for life con- that the have difficult to conceive would mandatory imprisonment sciously re- intended that quired crimes involved such as infinitely required for the more serious while none was murder. crime *14 legislative interpret not, however, do enactments We light legislature have, or of what the we believe could probably have, the or did are should intend. bound We language especially true clear This is statute. penalty provision where, here, as deal of a we with penal clearly statute. The statute that de- states imprisonment fendant “. . shall be to life sentenced .” . . so that defendant was sentenced. On basis legislature alone the orders must affirmed. The statute, enacted not the courts. If the statute does legislature say right intended, not what then is the to it. note further that I here that the record indicates judge properly dispose charge. trial to failed of the arson guilt finding charge, After a that sentence was stayed. permanently disposition Such a is not within options given judge to a trial under sec. Stats. pertaining
I affirm the would orders to the first- degree charge proper disposi- murder and remand for a charge. tion the arson
I am authorized state Mr. Chief Justice BEIL- joins concurring opinion. FUSS in this (dissenting). HANSEN, ROBERT W. J. Under the guilty state, law this one found imprisonment.”1 “shall be sentenced to life Under the guilty driving state, law one this found an auto- imprisoned mobile after revocation of license “shall be days year.”2 not than less nor more than one 940.01(1), Stats., providing: “First-degree Sec. murder. being Whoever causes death of another human with intent kill or imprisonment.” another shall sentenced to life 343.44, Stats., providing: “Driving See. after license revoked suspended. . . . “(2) Any person violating may this section not fined less than nor $100 more than and shall be $400 less license, without automobile one drives his who However, go jail. agree, majority must would first-degree murder
majority holds, the convicted of one driver, the trial jail. go the licenseless As to need statute,3 stay jail not, may under court However, probation. place the defendant sentence majority holds murderer, statute,4 may, trial under same *15 place de- imprisonment the and stay of life the sentence year. probation not than one for less fendant on go jail, the need but murderer That the driver must majority in results, reasons, a difference not, the wording penalty as to each crime to the mandated driving-without-a-license provides that The law involved. defendant, conviction, imprisoned.” upon the “shall be first-degree provides the The murder statute de- upon conviction, fendant, “shall to life be sentenced imprisonment.” days year county jail, except than 10 nor more than one in the person having op- if a violates this after section had his erating privilege revoked because of a conviction of imprisoned offenses mentioned s. he shall be not less in days year jail county than 10 in nor more than one for imprisoned not less first violation of this section and shall be days year county jail than 90 in the nor more than one year 2nd for one such violation and shall be county jail subsequent for the 3rd and each violation. . . .” part: 973.09, Stats., providing “Probation. in When See. crime, may, order, a is convicted of a with impose stay execution, and hold sentence or sentence place department probation him on for a either case stated period. . . . original “(2) term of shall be: “(a) misdemeanors, months, than 6 nor more For less years;
than 2 . . .” continuing: 973.09(2) (b), Stats., “(b) felonies, not Sec. For statutory year less than nor more than either the maximum one imprisonment years the crime term of greater.” or whichever case, term fifteen instant [In years. year It could been one under the rationale of the have majority opinion.] driving-without-a-lieense it clear that law, Under the sentencing stay option no sentence court has first-degree place probation.5 on Under defendant majority law, murder the trial court is con- contends impose stay place sentence, can it and strained but year more. for a convicted murderer meaning sharp Thus a distinction is drawn between imprisoned” of “shall to life and “shall sentenced imprisonment.”
Until the
revision of
criminal code
state
first-degree
provided
that one con-
first-degree
punished by
victed of
im-
murder “shall be
prisonment
during
prison
in the state
the life of the
majority opinion
so convicted.”6 The
concedes
judge
stay
way,
if
still read that
trial
could
place
sentence
murderer
probation.7
majority
contending
is thus
that the
punished
imprisonment”
from “shall be
imprisonment”
to “shall be sentenced to life
resulted
giving
judges
option,
trial
them,
heretofore denied
place
sentence and
the convicted
*16
probation
year.
murderer on
for at least a
change
This is one construction
toas
the
made
consequences.
complete separation
It
a
is based on
be-
Duffy,
v.
See: State
(1972),
Wis.2d
tween the of probation. com- put construction This to pletely equates a defendant imprisonment” with life to “sentenced sentencing proc- imposition sentence, not with of the being part purposes probation of no ess, with a changed puts majority it, under As the “sentenced.” imprisonment.” mandated, statute, is but “Sentence effected, but of the That one construction is only one. is writer submits phrase Equally of is the construction reasonable referring imprisonment” to to life as sentenced “shall be probation sentencing process —consideration phase— sentencing integral part of the alternative anas imposing something judge after reaches rather than as pro unitary approach of sentence. This consideration single process part of a bation or incarceration as recently de Anderson v. evident in the of State8 case cided court. this recognize a or There our court was asked establish withholding staying criteria of sentence or grant probation sentence to period different that for than appropriate incarceration trial deemed rejected any separation court. the sentence We between finding imposed probation appropriate, and a holding: either, different criteria to met as “Rejection necessary predicate is a to a required particu- determination incarceration is in a intertwining lar case.”9 As considerations sentencing alternatives, and incarceration as this said: fpr not make sense to have one standard the- “It.would granting
exercise discretion as to the judicial another and different for the standard exercise appropriate period discretion to of incarceration. *17 8 361, 251 (1977). Wis.2d N.W.2d 768 9 Id. at 366. single They part are not coin. are
These
two sides of
of
determination
the same side
the same coin—the
appropriate disposition.”10
ought
It
an
construc-
not be considered
unreasonable
changed
that
tion of the
murder statute
legislative
legislature,
discretion,
in the exercise of
predi-
rejection
necessary
considered
as “a
requiring
cate” to
murderers
legis-
imprisonment.”
“shall be
lature,
sentenced
life
The
rejecting proba-
court,
as did this
could consider
fixing
appropriate period
tion and
an
confinement
“part of the same
of the
side
same coin—the determina-
appropriate
change
disposition.”
tion of the
made
capable
being
in the 1955 revision is
understood
being
senses,
either of two
so,
“.
.
this
resort
permitted
matters
outside
face of the
statute is
meaning
primarily
purpose
thereof,
determine
of
for the
ascertaining legislative
intent.”11
there are
Since
two reasonable
constructions
phrase,
imprison-
substituted
“shall be
to life
sentenced
go
legislative history
ment,”
we thus
to determine
legislative
trip.
intent. Here that is a brief
majority opinion correctly
“Both
states:
state
agree
presented
the defendant
that on the issue
here
696,
Code,
draftsmen
C.
Laws
the Criminal
change
prior
intended no
law.” At least for the
argument,
purpose
accepted
defendant
“the
con-
first
Legislation,
clusion which the State draws from the 1955
Legislature
is,
did not intend to
State,
10 Id. at 366. See also: Prue
109, 116,
v.
63 Wis.2d
(1974), holding:
N.W.2d 43
“.
it
. .
true
the word ‘sen
‘sentencing’ may
general
tence’ or
be and often
used in a
more
sense than we have
concluded
is used in secs. 53.43 and 973.09.
State,
Edelman
v.
62 Wis.2d
36 that operation of degree the or
penalty murder for first penalty.”12 the brief, state, that in its is position of the stated change either intend to
legislature
.
did
penalty in the revis
operation
penalty or the
history
that, as to
legislative
clear
makes
ion.”13
change int
imprisonment,
penalty
“No
life
for
major change
revi
by the 1955
effected
ended.”14 The
sentences, changing
of minimum
was
elimination
sion
crimes,
to
“may,”
not as
first-
to
but
to
as most
“shall”
proposed revisions
degree
early draft of
murder. An
“may”
“shall,”
suggest
this
but
did
substitution
legis
long
proposal reached the
rejected
before the
statutes,
Actually, only two
murder
lature.
kidnapping
ransom,15
man
retained the “shall”
sentencing
date,
involving mandatory
to life im
both
16
prisonment.
12
Error-Respondent Brief, page
Defendant
15.
in
Brief, page
Error-Appellant
15.
Plaintiff in
14 Legislative
compilation
Staff,
Council Technical
in 1954
stat
ing:
(first-degree
early
in
“340.02
statute number
draft
change
340.01)
renumbered
No
intended. Present
before
proposed
340.02 is restated
code ....
[Em-
340.01
phasis supplied.]
“
change
purpose
‘No
intended’ is used to indicate
scope
the code
liability
effect a
draft
is not to
of criminal
is
substantial
restatement
new section
present
[Emphasis
(Digest
supplied.]
law.”
chs.
343,
1951, prepared
Legislative
Stats.
Council Technical
Advisory
January
Committee,
for the Criminal Code
Staff
1954.)
providing:
940.31(2), Stats.,
“(2)
15 See.
Whoever violates sub.
[kidnapping by
in
force
threat of imminent
with
force]
property
tent to cause another to
transfer
order
obtain
imprisonment;
release of
victim shall be sentenced to life
but
prior
permanent physical injury
if his
victim released without
time the first witness is
at the trial
the defendant
sworn
years.”
may
more than
16 Platz,
Code,
The Criminal
Rev.
Wis. L.
stating:
objective
principally
accomplished
author
“The second
legislative history
Thus there
is no
in the
basis
contending
1955 revision for even
that the
any change
nonavailability
penalty
intended
toas
when
substituted “shall be sentenced
imprisonment”
punished by imprison-
life
*19
for “shall be
prison during
ment in the state
the life of the
party
appeal
so convicted.” Neither
on this
contends
any change
and there
intended,
is no basis
legislative history
contending.
for so
Having
legislative
established the relevant
intent in
making
phraseology,
the 1955 substitution of
“no
i.e.,
phrase
intended,” it
follows
the substitute
imprisonment,”
“shall be sentenced to life
is to be con-
having
meaning
predecessor
strued as
the same
as its
phrase
punished by imprisonment
“shall
in the state
prison during
the life of the
so convicted.”
supported by
This construction is further
the rule of
statutory construction that a statute should not
con-
strued so as to work absurd or unreasonable results.17
majority opinion
absurd,
If not
the result under the
judge
at least
unreasonable
a trial
has two alterna-
appropriate penalty
in the
tives
determination of an
a
for
(1)
defendant convicted of
murder:
Incar-
stayed,
life,
ceration for
or
sentence
and defendant
placed
year.
on
for at
a
least
by eliminating nearly
penalties.
(The
all
only
minimum
excep-
tions in the code are
kidnapping
murder
(minimum
life)
second-degree
ransom
(minimum
murder
”
years).
§§940.01, 940.02,
of 5
(2).)
Code
940.31
at
penalty
And
383: “It
provisions
will be observed that
invariably say
‘may
in the code
the offender
,’
be fined . . .
ex-
cept
penalty
imprisonment.
where
permissive
is life
‘may’
mandatory
was used instead of the
‘shall’ because of the
say
law which makes it
inaccurate
to
the offender
‘shall’
fined or
or both.”
Evans,
97, 101,
Estate
(1965),
28 Wis.2d
The 1955 Criminal thinking of indeterminate advocates measure the able first-degree murder, sentencing. Except second- as ransom, minimum kidnapping for degree “may” changed to “shall” were abolished and sentences of discretion give area trial courts broad sentencing disposition. How- appropriate of an selection fervent indeterminate advocate ever even most limiting sentencing at alterna- the result must blanch imprisonment dispositions to life case tive other, year more, hand, or for a or one dispositions Plac- excluded. alternative with intermediate opposite ends ing disposition at two alternatives sense, spectrum one severity makes little whether sentencing concept of indeterminate believes transgressions. penalties the idea determinate Having the 1955 revision that “shall be construed meaning imprisonment” sentenced life has same *20 predecessor, punished imprisonment,” as its “shall be holding Duffy18 applies the court in of this and controls. general probation There court considered the statute providing that defendant when convicted misdemeanor, by order, impose may, the court “. . . stay execution, place sentence and . . him on and . probation. Despite general . .”19 provision this mandatory Duffy court in that penalty held “shall be imprisoned” imposition stay made in- of sentence and appropriate, required the defendant convicted driving-without-a-license be sentenced to confinement county jail period for the minimum of incarcera- statutorily tion mandated. general
In the us, case before statute similarly provides that when a defendant is convicted any felony, may, the court . . impose order “. sentence stay place its execution and probation. . . . him on
18 Duffy, supra, State v. n. 5. 19 64, quoting portions Id. at relevant of sec. Stats. general Despite . . provision, .” such since “shall he imprisonment” sentenced to life to mean is construed punished by “shall imprisonment,” requires murder statute here one convicted first- degree stay sentenced, without of execution granting probation, imprisonment. to life Duffy isWhat held in applies as to to misdemeanors felonies as well. The reason in both situations Duffy same. As stated in the specific decision, “. . . a statutory provision prevail general will provision over a penal relating subject code same matter.”20 general provisions statute do not express language control where “. . . penalty pro- present requires visions of the that a con- victed under subject this imprisonment.”21 section be To in a hold murder case that the trial court may nevertheless “. .. impose withhold sentence or sentence and pursuant its execution to sec. Duffy would, exactly 973.09” driving-with- held as to out-a-license, “. . . principles do violence statutory construction and would legis- contravene the intent of the lature.”22
Accordingly, the trial appealed court orders stayed should be reversed and the grant sentence and probation set aside. The writer would then remand the citing Id. at Wolke, State ex rel. Gutbrod v. 49 Wis.2d N.W.2d adding Id. legislature at at 65: “The has en statutory provisions acted comparable but few one ease, expressly provide instant which imprisoned.’ thereunder ‘shall be If were to be avail case, in either able purpose would have no *21 employing ‘may’ cases, word in some and the word ‘shall’ in others.” concluding Id. at the court at that: “We arrive at inescapable conclusion that left the trial court impose with no alternative but to a sentence of not than less five days upon convicted of a violation of this section of the (Referring 343.44(2), Stats.) statutes.” to sec. statutorily mandated sentence imposition
case for imprisonment. —life B. LEO that Mr. Justice
I state am authorized joins in this dissent. HANLEY Appellant, v. Wilberscheid, Wilberscheid,
Respondent.† January No. Submitted 75-79. briefs 6, 1977. 29, 1977. Decided March 76.) (Also reported 252 N. 2d W. rehearing May denied, costs, with Motion 1977. † ‘comments’ or notes revisor’s Both the 1951 and bill. accompanied by great explanatory the 1953 bills were deal of Legisla- material intended as aids to But the 1953 construction. majority advisory ture struck out the comments and a of the opinion committee of the were there be none should part still, course, The are bill. 1953 comments of the legislative history of code and will be of some value in un- derstanding provisions, greatly its but their im- usefulness Legislative quotes Council Staff The state reflected proposition the new previous omits state no from statute. legislative passage on a history a reference to recognition page quote: “There from which is full does expressed herein the fact that some of conclusions subject penalty chomges . have are . . . . debate (Emphasis supplied). been discussed.”9 following disagree meaning parties Legislative passages Council from the minutes of