State v. Davis

381 N.W.2d 333, 127 Wis. 2d 486, 1986 Wisc. LEXIS 1647
CourtWisconsin Supreme Court
DecidedFebruary 11, 1986
Docket84-588-CR
StatusPublished
Cited by12 cases

This text of 381 N.W.2d 333 (State v. Davis) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Davis, 381 N.W.2d 333, 127 Wis. 2d 486, 1986 Wisc. LEXIS 1647 (Wis. 1986).

Opinions

HEFFERNAN, CHIEF JUSTICE.

This is a review of an unpublished decision of the court of appeals dated November 13,1984, summarily affirming an order of the circuit court for Milwaukee county, Ralph G. Gorenstein, circuit judge, which, on November 15,1983, extended the probation of Thelmer Davis1 for a third time. We reverse and remand to the circuit court, with directions to terminate Davis' probation supervision. We conclude that the trial judge abused his discretion in deciding to extend the probation period, because he based that decision on Davis' alleged failure to comply with conditions of her probation when those conditions had never before been explicitly stated by the court to be necessary for the satisfactory completion of the probation term.

The record demonstrates that, in 1974, Thelmer Davis was charged with the failure to report income while a recipient of assistance from the Milwaukee County Department of Public Welfare in violation of sec. 49.12 (6), Stats., a felony. After a jury trial, she was found guilty on November 24, 1975. She was placed on probation:

[488]*488. . for the period of 5 years in the custody and control of the Department of Health and Social Services2 subject to its rules and orders and subject to the following conditions [none stated].
"As a further condition of probation the defendant shall make payments in such manner as the Department shall direct as follows: Restitution $1467.00." Emphasis supplied.3

[489]*489Davis was supervised by the probation agent of the Department of Health and Social Services from the date of conviction forward. In 1980, as the end of the five-year probationary period approached, Davis' agent advised the court, again presided over by Judge Gorenstein, that the probationary period should be extended by one year. He reported that, in the interim following the original conviction, Thelmer Davis' husband had, in 1978, been sentenced to the state penitentiary and since that time Davis was the sole source of support of the couple's three children, whose ages were four, nine, and eleven.

The probation agent emphasized that Davis had a steady job and, despite the imprisonment of her husband, the marriage was a stable one and that she was a good mother to her three children. The report revealed that Davis had only paid $105 during her first two years of supervision, but during that period she had been absent from work for two periods of maternity leave. The agent reported that Davis stated she had never been told by the probation department during the first two years to pay more toward her restitution obligation.

It apparently was not until January of 1980, according to the probation authorities, that any attempt was made to analyze Davis' expenses to determine what amounts, in light of her circumstances, she ought to be paying. A budgeting counsellor advised the probation authorities that Davis was "using her money wisely."

On the basis of the budgeting counsellor's analysis, Davis' probation agent concluded that Davis ought to have been paying $15 a month in satisfaction of her restitution obligation for the entire period of her probation. He concluded that, although her more recent performance was satisfactory, he could not characterize her payment pattern during the first two years as evidence of a good-faith effort. It was only that apparent lack of effort during the first two years of supervision that impelled the probation agent to suggest that the court continue Davis [490]*490on probation. He characterized her general rehabilitative status by stating:

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

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

The agent, nevertheless, recommended that the period of supervision be continued for one year and that Davis be expected to make monthly payments of $20.

The record supplied on this review fails to show the order entered subsequent to the hearing on the probation agent's petition, but the journal entries in the judgment roll, dated November 18, 1980, recite:

"Court ordered probation extended for one (1) year and further ordered defendant to pay 10% interest per year on unpaid restitution."

In November of 1981, Davis was returned to court. The judge continued the probation for two years and, without any explanation or rationale appearing in the record before us, told the defendant to increase payments or be sent to jail. This decision was reached despite the recommendation of the probation officer that supervision be discontinued.

On November 15, 1983, Judge Gorenstein extended the period of probation for another two years despite the [491]*491renewed recommendation that probation be discontinued.4 The judge, for the ñrst time, stated that, if the defendant did volunteer work, such work could be counted in credit of her obligation at the rate of $2 per hour. Upon proof being submitted of volunteer work over a number of years, the court stated that credit for volunteer work would be allowed only subsequent to November 15,1983.

On March 19,1984, a notice of appeal to the court of appeals was filed. The court of appeals in a brief per curiam decision affirmed the trial court's order. Petition to review the decision of the court of appeals was granted by this court.

We reverse because of the abuse of discretion by the trial court because, without any analysis of the case itself, except in a most perfunctory way, it altered the terms of the probation and failed to apply in a reasoned manner the principles of Huggett v. State, 83 Wis. 2d 790, 266 N.W.2d 403 (1978).

The defendant was led to believe that, were she to conform to the terms of her probation as set by her probation officer during the terms of her probation, she would be complying with the conditions of her sentence. Yet, in respect to the crucial extension of the sentence, despite the fact that she had been doing everything that was explicitly required of her, she was told by Judge Gorenstein that she would have to get a second job or go to prison to serve a five-year term.

The trial judge's attitude evidencing an abuse of discretion is demonstrated by the transcript. At the very out[492]

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State v. Davis
381 N.W.2d 333 (Wisconsin Supreme Court, 1986)

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Bluebook (online)
381 N.W.2d 333, 127 Wis. 2d 486, 1986 Wisc. LEXIS 1647, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-davis-wis-1986.