State v. Wilson

252 N.W.2d 64, 77 Wis. 2d 15, 1977 Wisc. LEXIS 1280

• Court: Wisconsin Supreme Court
• Decided: March 29, 1977
• Docket: 75-425-CR
• Status: Published

Opinions

DAY, J.

The question is whether a sentence of life imprisonment, following conviction of first-degree murder, may be stayed and the defendant placed on probation.

On March 20, 1975 Mary Levis Wilson was convicted in a trial to the court without a jury of first-degree murder contrary to Sec. 940.01(1) Stats.¹ in the shooting death of her husband. A sentence of life imprisonment was imposed on April 21, 1975. Execution of the sentence was stayed and Mrs. Wilson was placed on probation for fifteen years. Mrs. Wilson was also adjudged guilty of arson contrary to sec. 943.02. The state has not appealed from nor requested a writ of error directed to the judgment of conviction for arson. That conviction is not before us.

The state seeks review of the order staying execution of the sentence and placing Mrs. Wilson on probation and also review of a subsequent order of the court dated July 9, 1975 denying the state’s motion of June 6, 1975 for an order vacating that portion of the judgment which stayed execution of the sentence of life imprisonment and placed the defendant on probation. The state’s motion further requested the court order execution of the life sentence.

Because the issue before the court is strictly an interpretation of the statutes, a detailed recitation of the facts that gave rise to the issue is not necessary. The question of whether or not the judge abused his discretion in granting probation in this case is likewise not before the court.

This is a case of first impression in Wisconsin. Because of the policy implications involved in the present state of legislation on the subject we direct the Legislature’s attention to the matter.

The trial court took the position that the first degree murder statute says, “shall be sentenced. . . .” It does not say, “shall be punished by imprisonment” nor does the statute prohibit probation. The probation statute² does not except sec. 940.01, Stats, from its provisions. The trial court decided it had authority to grant probation and denied the state’s motions for incarceration.

Historically the legislature has used two methods of designating which crimes would not be subject to probation. One method has been to exclude the possibility of probation in the statute setting forth the punishment for a particular crime. See, e.g., sec. 161.28(1), (2) Stats. 1961.³

The second method has been to except the possibility of probation for certain crimes in the probation statute itself.⁴

Wisconsin first provided for probation by C. 541, Laws of 1909. That statute and each successive version has distinguished between withholding imposition of a sentence and staying the execution thereof. For the first thirty-eight years of its existence, the Wisconsin probation law specifically prohibited probation for certain crimes. In C. 541, sec. 2, Laws of 1909, C. 136, sec. 2, Laws of 1913, and C. 30, sec. 5 and C. 615, sec. 2, Laws of 1919, persons convicted of felonies punishable by terms exceeding ten years could not be placed on probation. In 1931, the over-ten year exception was deleted and instead fifteen specific crimes were excepted from the probation law, including first-degree murder. C. 150, sec. 2, Laws of 1931. (sec. 57.01(1), Stats. 1931).

In 1947, however, the probation iaw was made generally applicable to all felonies with the sole exception of abandonment. C. 477 Laws of 1947 (sec. 57.01(1), Stats. (1947).) See also, Comment of Interim Committee 19U7.⁵ There was no exception made for the various degrees of homicide including first-degree murder.

When the penalty in excess of ten years was abandoned as the criterion for possible probation in 1931 and probation was made available to all convicted felons, except for the fifteen specific crimes therein enumerated including first-degree murder, the first-degree murder statute penalty provision read as follows:

“340.02 Murder, first degree. Such killing, when perpetrated from premeditated design to effect the death of the person killed, or of any human being, shall be murder in the first degree; and the person who shall be convicted of the same shall be punished by imprisonment in the state prison during the life of the person so convicted.”

But first-degree manslaughter was not excepted from the probation statute and the penalty provision read as follows:

“340.13 Penalty. Any person who shall be guilty of manslaughter in the first degree shall be punished by imprisonment in the state prison not more than ten years nor less than five years.”

Both the first-degree murder and first-degree manslaughter statutes used the words, “shall be punished by imprisonment . . .” but it is clear that after the 1931 change in the law execution of sentence was not meant to be mandatory in the case of first-degree manslaughter because the probation statute did not except first-degree manslaughter from those felonies for which probation was authorized. It thus seems clear that whether actual imprisonment was required for a particular crime depended on the probation statute, unless, of course, the particular criminal statute itself specifically excluded probation. Thus in 1947 when probation was made a possible alternative for all felonies except abandonment, probation was a possibility for first-degree manslaughter though that crime still retained a provision that one so convicted “shall be punished by imprisonment. . . .”⁶ The same reasoning would apply to the probation statute applying to first-degree murder, since it contained the same language in the penalty clause.

What is said here about first-degree murder also applied to kidnapping for ransom. It was one of the crimes excepted from the probation statute. The 1931 statute on kidnapping a child for ransom, sec. 340.56, Stats, reads in part as follows:

“. . . upon conviction thereof shall be punished by imprisonment in the state prison during the life of the person so convicted. . . .”

The penalty clause was couched in the same language as that for first-degree murder. In 1947 when all felonies except abandonment allowed probation the statute still maintained the same penalty language, sec. 340.56, Stats. 1947.

In 1955 the legislature made a comprehensive revision of the Criminal Code.⁷ Sec. 940.01(1), Stats. 1955 reads as follows:

“First-degree murder. (1) Whoever causes the death of another human being with intent to kill that person or another shall be sentenced to life imprisonment.”

The penalty provisions for kidnapping for ransom, sec. 940.31(2), Stats. 1955 provided likewise that the defendant “. . . shall be sentenced to life imprisonment;

99

In construing a statute the primary source of construction is the language of the statute itself. State v. Consolidated Freightways Corp., 72 Wis.2d 727, 737, 242 N.W.2d 192 (1976).

In this state, courts have no inherent power to stay execution of a sentence in a criminal case in the absence of statutory authority except for the limited purpose of affording relief against the sentence itself. Drinkwater v. State, 69 Wis.2d 60, 65, 66, 230 N.W.2d 126 (1975). This court has recognized the probation statute gives the court the option of (a) withholding sentence or (b) imposing- sentence and staying its execution. Prue v. State, 63 Wis.2d 109, 112, 216 N.W.2d 43 (1974).

Sec. 940.01 clearly requires a person convicted of first-degree murder be sentenced to life imprisonment. But the statute does not prohibit option (b), above, of imposing sentence and staying execution of sentence. This is what the trial court did.

We agree with the trial court that it had such authority under the probation statute. If the legislature does not want a particular crime to be eligible for probation, it may do what it has done in the past: except the particular offense from the probation statute, as was done prior to 1947, or state in the penalty provision of the particular offense that sentence shall not be withheld or its execution stayed pursuant to the probation statute. In the case before us the statute does clearly provide that sentence shall not be withheld but it does not say that it may not be stayed.

Both the state and the defendant agree that on the issue presented here the draftsmen of C. 696, Laws of 1955, the Criminal Code, intended no change from prior law. The question, as both sides argued it, is whether the pre-1955 statutes allowed probation upon a conviction of first-degree murder.

The state’s argument is that in the 1955 Code the draftsmen used the permissive word “may” in the sentencing portion of most crimes. However, in the new first-degree murder statute, the draftsmen retained the word “shall,” evincing an intent that the imprisonment be mandatory. This argument does not address the point that what is mandatory is the sentence and that a stay of the sentence is not specifically prohibited.

The state makes two basic arguments in support of its contention that not only the sentence, but also imprisonment is mandatory under sec. 940.01(1). The first derives from case law. The second is based on legislative history surrounding the enactment of the present criminal code. The state cites State ex rel. Drankovich v. Murphy, 248 Wis. 433, 22 N.W.2d 540 (1946) as authority that the first-degree murder statute prior to the change in its sentencing language required mandatory imprisonment. In Drankovich at pages 439, 440, this court said:

“. . . he may be convicted of murder in the first degree. If so convicted the trial court would have no discretion but to sentence him to state’s prison for life, although the prisoner has served eleven years of his sentence and shortly will be entitled to apply for parole . . . The petitioner then would have to commence another life sentence. Because of the peculiar circumstances we have no means of avoiding such result. We can only point out that if he should be prosecuted for and be convicted of murder in the first degree the matter of how much of his term he should justly serve will be a matter for the consideration of the governor in case he applies for pardon.”

But the state fails to note that at the time of this decision it was the probation statute itself which disallowed probation for first-degree murder, then sec. 340.02.

Sec. 57.01 (1) Stats. 1945 reads,

“57.01. Suspension of sentence. (1) Whenever any adult is convicted of a felony, convictions under sections 340.02, 340.03, 340.04, 340.05, 340.06, 340.07, 340.09, 340.39, 340.40, 340.56, 343.09, 343.121, 343.122, 351.16, 351.30 excepted, and it appears to the satisfaction of the court that the character of the defendant and the circumstances of the case indicate that he is not likely again to commit crime, and that the public good does not require that he shall suffer the penalty provided by law, said court may, except as otherwise provided for by law, by order suspend the judgment or stay the execution thereof and place the defendant on probation, stating therein the reasons for the order, which shall be made a part of the record, and may impose as a condition of making the order or of continuing the same in effect that the defendant shall make restitution or pay the costs of prosecution, or do both.”

This section was based on C. 150, Laws of 1931. The DranJcovich decision was decided April 12, 1946. It was not until August, 1947 that the probation law was amended to apply to all felonies except abandonment. C. 477, Laws of 1947. Thus, the previously quoted language of Drcmkovich, supra, accurately reflected the law when it was written; but on the question before us it carries no weight with respect to the law as it was subsequently amended.

The case of State v. Duffy, 54 Wis.2d 61, 194 N.W.2d 624 (1972) is cited by both the state and the defendant. That case contrasted an older statute which said “may be fined ... or imprisoned” with the amended version, “. . . may be fined and shall be imprisoned. . . .” This court pointed out that prior to the amendment of sec. 343.44(2) Stats., by C. 292, Laws of 1967, the statute read as follows:

“343.44 Driving after license revoked or suspended

“(2) Any person violating this section may be fined not less than $50 nor more than $200 or imprisoned not more than 6 months or both except that if a person violates this section after having had his operating privilege revoked because of a conviction of any of the offenses mentioned in s. 343.31, he shall be imprisoned not less than 2 nor more than 30 days for the first violation of this section and shall be imprisoned 60 days for the second such violation and 180 days for the third and each subsequent violation.”

This statute as amended by C. 292, Laws of 1967, provides :

“(2) Any person violating this section may be fined not less than $50 nor more than $200 and shall be imprisoned not less than 5 days nor more than 6 months, except that if a person violates this section after having had his operating privilege revoked because of a conviction of any of the offenses mentioned in s. 343.31, he shall be imprisoned not less than 5 days nor more than 6 months for the first violation of this section and shall be imprisoned not less than 60 days nor more than 6 months for the 2nd such violation and shall be imprisoned for 6 months for the 3rd and each subsequent violation. . ." 54 Wis.2d at 63, 64.

The question was whether probation was an available alternative under the amended law. Sentence had been imposed and stayed. However, the stay was pending appeal, and not, insofar as the opinion indicates, a stay pursuant to the probation statute itself.

The court held that to allow probation under sec. 973.09 in light of the amended sec. 343.44(2), swpra, “would do violence to principles of statutory construction and would contravene the intent of the legislature.” Sec. 343.44(2), as a specific statute, was said to prevail over the probation statute.

Because this case is relied on by the state, its analysis will be quoted:

“It is an elementary principle of statutory construction that statutes must be construed together and harmonized. Ordinarily, a specific statutory provision will prevail over a general provision in the penal code relating to the same subject matter. State ex rel. Gutbrod v. Wolke, 49 Wis.2d 736, 183 N.W.2d 161 (1971). Most of the penal statutes of this state grant the trial court discretion to either impose a sentence of imprisonment within prescribed statutory limitations or to impose a period of probation pursuant to the provisions of sec. 973.09, Stats. This authority is generally indicated by the language ‘may be imprisoned,’ which precedes the limitation on the period of imprisonment in the particular provision.¹ The legislature has enacted but few statutory provisions comparable to the one in the instant case, which expressly provides that a person convicted thereunder ‘shall be imprisoned.’ If probation were to be available in either case, the legislature would have no purpose in employing the word ‘may’ in some cases and the word ‘shall’ in others.

“We arrive at the inescapable conclusion that the legislature left the trial court with no alternative but to impose a sentence of not less than five days upon a person convicted of a violation of this section of the statutes.” 54 Wis.2d 64, 65. (Footnote omitted.)

The first-degree murder statute does not now say “shall be imprisoned” but rather, “shall be sentenced.” For this reason, Duffy and the instant case are distinguishable.

Other cases have distinguished the mandatory “shall” from the permissive “may.” State v. Camara, 28 Wis.2d 365, 371, 137 N.W.2d 1 (1965); State v. Christopherson, 36 Wis.2d 574, 583, 584, 153 N.W.2d 631 (1967).

But the question here is not whether “shall” is mandatory, but what is mandated. Sentence is mandated, but not imprisonment. In the language of the probation statute imposition of sentence is required but stay of execution is not prohibited. Finally, the state refers to the specific legislative history concerning enactment of the criminal code. The law, as ultimately enacted, contained no revisor’s notes or comments.⁸

The state quotes the Legislative Council Staff for the proposition the new first-degree murder statute reflected no change from the previous statute. The state omits from its reference to legislative history a passage on a page from which it does quote: “There is full recognition of the fact that some of the conclusions expressed herein are subject to debate . . . penalty chomges . . . have not been discussed.”9 (Emphasis supplied).

The parties disagree as to the meaning of the following passages from the minutes of the Legislative Council in 1954:

April 29,1954:

“Judge Boileau read sec. 340.02. (The second-degree murder statute) and asked Mr. Platz to explain again why it should be necessary to change the word ‘shall’ to ‘may.’ The present law says ‘shall.’ Mr. Platz said it was more accurate to say ‘may’ inasmuch as it does not mean ‘shall.’ After some further discussion, Judge Good-land suggested that the matter be given some further thought for 24-48 hours, or so.”

June 3,1954:

“No. 2 — Determine whether or not the statute shall be amended, or the code, to insert ‘shall’ rather than ‘may’ with respect to penalties.

“Judge Boileau and Mr. Tibbs spoke in favor of ‘shall’ and Mr. Platz in favor of ‘may’ because, he said since the establishment of probation, ‘shall’ no longer applies. Mr. Collins moved that the word ‘may’ throughout the code be changed to ‘shall.’ The motion was seconded by Mr. Tibbs. The motion was lost.”

Thus Mr. Platz argued “may” was appropriate because probation was an alternative disposition. We do not know, from this history, whether it was the drafting committee’s intention that the life sentence alone he mandatory, or also the incarceration. We do not know, moreover, whether the issue here was considered by the draftsmen.

Where there is doubt as to the statutory scheme, penal statutes should be strictly construed in favor of the accused. E.g., State v. Schaller, 70 Wis.2d 107, 110, 233 N.W.2d 416 (1975).

The canon of strict construction is grounded on policy. Since it is within the power of the lawmakers, the burden lies with them to relieve the situation of all doubts. 3 Sutherland on Statutory Construction, sec. 59.03, p. 7 (3d ed. 1968-1973). And “since the power to declare what conduct is subject to penal sanctions is legislative rather than judicial, it would risk judicial usurpation of the legislative function for a court to enforce a penalty where the legislature had not clearly and unequivocally prescribed it.” Id., p. 8.

Based on the wording of the first-degree murder statute and the probation statute, we conclude the trial court correctly interpreted the probation law of this state.¹⁰

By'the Court. — Orders affirmed.

1 “940.01 First-degree murder. (1) Whoever causes the death of -another human being with intent to kill that person or another shall be sentenced to life imprisonment.”

2 “973.09 Probation. (1) When a person is convicted of a crime, the court may, by order, withhold sentence or impose sentence and stay its execution, and in either case place him on probation to the department for a stated period, stating in the order the reasons therefor, and may impose any conditions which appear to be reasonable and appropriate. The period of probation may be made consecutive to a sentence on a different charge, whether imposed at the same time or previously.”

3 “161.28 Penalties; sentence; probation cmd parole; evidence ■and procedure on prior convictions. (1) Any person who violates s. 161.02(1) or 161.275(1) shall be imprisoned not less than 2 nor more than 10 years. For a second offense or if, in case of a first conviction of violating s. 161.02(1) or 161.275(1) such person had previously been convicted of any violation of the laws of the United States or of any state, territory or district thereof, relating to narcotic drugs or marijuana, such person shall be imprisoned not less than 10 nor more than 20 years. Except for a first offense sentence shall not be withheld or its execution stayed pursuant to ch. 57, and parole shall not be granted until the minimum imprisonment provided for the offense has been served, less good time allowances as provided in ss. 58.11 and 53.12.

“(2) Any person making an illegal sale of narcotic drugs or marijuana to any person under the age of 21 years shall'be imprisoned not less than 3 years nor more than 25 years. For a second conviction for such offense, such person shall be imprisoned for not less than 20 years nor more than life. For a third conviction for such offense such person shall be imprisoned for life. Except for a first offense, sentence shall not be withheld or its execution stayed pursuant to ch. 57, and parole shall not be granted until the minimum imprisonment provided for the offense has been served, less good time allowances as provided in ss. 53.11 and 53.12.”

4 This is the present federal method. 18 U.S.C. sec. 3651 states in part: “Upon entering a judgment of conviction of any offense not punishable by death or life imprisonment, any court having jurisdiction to try offenses against the United States when satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may suspend the imposition or execution of sentence and place the defendant on probation for such period and upon such terms and conditions as the court deems best. . .

5 “57.01(1) is made general. The exceptions to its application are deleted, except 351.30 (St. 1955 §52.05) (desertion of wife or child). * * * The revision gives the court power to fix and extend the probation period and does not limit total length of probation. . . .” Sec. 57.01, W.S.A. (1957) p. 384.

6 Sec. 340.13, Stats. 1947.

⁷

C. 696, Laws of 1955.

8 “As was to be expected, the 1953 code was subjected to wholesale changes. Although the former opponents of the code came around to the view that a rewriting of the criminal law was at least desirable, if not necessary, they continued to be highly critical of the 1953 draft and wanted changes made in nearly every provision. In appraising these changes, it must be borne in mind that many of them are merely verbal although many others are substantive. It cannot be assumed that every change in language imports a change in meaning.

“One principal difference between the two codes is the lack of ‘comments’ or revisor’s notes in the 1955 bill. Both the 1951 and the 1953 bills were accompanied by a great deal of explanatory material intended as aids to construction. But the 1953 Legislature struck out the comments and a majority of the advisory committee were of the opinion that there should be none in the 1955 bill. The 1953 comments are still, of course, a part of the legislative history of the code and will be of some value in understanding its provisions, but their usefulness is greatly impaired by the multitudinous changes in the text of the law.” William A. Platz, The Criminal Code, 1956 Wis. L. Rev. 350, 353. (Footnote omitted.)

9 Digest of Chapters 340 and 343 prepared by The Legislative Technical Staff For the Criminal Code Advisory Committee (January 29, 1954).

10 The dissent argues that sentencing entails a process which, in the normal course, includes the “consideration of the probation alternative as an integral part of the sentencing phase. . . .” The majority has no quarrel with this as a general proposition.

But even if probation is part of the sentencing consideration, it does not follow that the legislature intended the rejection of probation to be a “necessary predicate” to the imposition of sentence. This merely assumes the answer to the question. The probation statute provides that the court may “impose sentence and stay its execution,” sec. 973.09, Stats, and then place the defendant on probation. Since the execution of sentence may be stayed and the defendant placed on probation, it is obvious that probation is not a sentence. This court has so stated. Prue v. State, 63 Wis.2d 109, 114, 216 N.W.2d 43 (1974); State v. Gibbons, 71 Wis.2d 94, 97, 237 N.W.2d 33 (1975); Garski v. State, 75 Wis.2d 62, 69, 248 N.W.2d 425 (1977). Thus the mandate of sentence does not preclude the grant of probation under the probation statute.

The dissent erroneously attributes to the majority the conclusion that the legislature intended a change in the meaning of the first-degree murder statute in 1955. We do not state the 1955 change in language gave trial judges an option, “heretofore denied them.” (Dissent, p. 3) Quite to the contrary, we explained that even under the pre-1955 version, the language “shall be punished by imprisonment” was irrelevant to the question whether probation was then available. Probation, under the pre-1955 scheme, was denied in one of two ways: A specific prohibition of probation in the substantive criminal statute or a specific exception for crime made in the probation statute itself.

Thus, prior to 1955, statutes which contained the language “shall be punished by imprisonment” sometimes precluded probation and sometimes did not, depending on the specific exceptions in the probation or criminal statute. However Duffy, supra,, is authority for the proposition that where the legislature changes the language in a sentencing provision from “may be imprisoned” to “shall be imprisoned,” that deliberate change must be given meaning. Specifically, the change must be construed to exclude the possibility of probation.

Finally, the dissent points to the seeming illogic of the life-imprisonment-or-probation choice given the trial court. But upon a conviction of second-degree murder the court must choose between a minimum incarceration of five years and probation. This is a legislative matter.

1 Sec. 940.01(1), Stats., providing: “First-degree murder. (1) Whoever causes the death of another human being with intent to kill that person or another shall be sentenced to life imprisonment.”