DOC Discharge Certificate (Probation, § 973.09(5)) – Wrongly Issued, Prior to Expiration of Term of Probation
As a function of “administrative error,” the department of corrections issued Greer a discharge certificate before his term of probation had expired. (The term of probation ran consecutive to a prison term; DOC issued the certificate when the prison term expired, apparently overlooking the probation.) The certificate was therefore “invalid,” that is, did not divest DOC of its jurisdiction over Greer, ¶10 (citing State ex rel. Anderson-El v. Cooke, 2000 WI 40, ¶20, 234 Wis. 2d 626, 610 N.W.2d 821 for the principle that “an administrative act is invalid if it conflicts with a statute or administrative rule”). In consequence, DOC retained jurisdiction to revoke Greer’s probation. State ex rel. Rodriguez v. DHSS, 133 Wis. 2d 47, 393 N.W.2d 105 (Ct. App. 1986), and State v. Stefanovic, 215 Wis. 2d 310, 572 N.W.2d 140 (Ct. App. 1997), discussed. (Rodriguez: DOC didn’t lose supervisory jurisdiction merely because Rodriguez’s agent mistakenly told him he’d been discharged from probation, “especially” considering that Rodriguez knew about the probationary term; that decision doesn’t “suggest a discharge certificate in conflict with a court-ordered term of probation supersedes the court order,” ¶17. Stefanovic: the probation term had expired, and the discharge certificate had been properly issued, such that pre-discharge conditions could no longer be enforced, ¶¶18-19.)
¶20 Consistent with Wis. Stat. § 973.09(5), Wis. Admin. Code § DOC 328.17(2), and our decisions in Rodriguez and Stefanovic, we conclude that because Greer’s court-ordered three-year term of probation on Count 3 had not expired at the time the DOC commenced revocation proceedings, the DOC retained jurisdiction over Greer despite its issuance of the discharge certificate.
Greer remained within the nominal term of probation when he committed a new offense, which led to discovery of the discharge error. (Greer had roughly 3 months to go before the term of probation would have expired, ¶¶3-4.) And had he fallen outside the nominal term? If the idea is that DOC never lost jurisdiction, then the term of probation must have kept running, thus would have simply expired when it was supposed to, as opposed to being tolled somehow – or so you’d think, though that issue is neither presented by the case nor discussed by the court. That idea leads to a tangent: what about when a prisoner is erroneously released? Somewhat exotic, but it does happen, and there is compelling authority that in that instance, the prisoner gets credit against his sentence for time spent on release, see Tyler v. Houston, 273 Neb. 100, 728 N.W.2d 549 (2007) (detailed discussion of principle “that a prisoner is entitled to credit against his or her sentence for time spent erroneously at liberty due to the State’s negligence,” including reference to Dunne v. Keohane, 14 F.3d 335 (7th Cir. 1994), for the following idea: “The government is not permitted to play cat and mouse with the prisoner, delaying indefinitely the expiation of his or her debt to society and reintegration into the free community.”). Also see State v. Dentici, 2002 WI App 77, ¶1, 251 Wis. 2d 436, 643 N.W.2d 180, for idea that “a person who is absent from jail through no fault of his own is entitled to sentence credit.” None of which does Greer any good in this particular context, for the simple reason that a probationer isn’t entitled to “street time” credit against his sentence, State v. Aderhold, 91 Wis. 2d 306, 284 N.W.2d 108. But you’d think that the erroneous-release doctrine is portable, in the sense that the term of probation continues running, same as a sentence would, where the person has been erroneously discharged from supervision.
Certiorari Review – Equitable Estoppel
Certiorari review (here, of Division of Hearing and Appeals decision to revoke probation) is limited to well-known inquiries: “(1) whether the Division stayed within its jurisdiction; (2) whether it acted according to law; (3) whether its action was arbitrary, oppressive or unreasonable and represented its will, not its judgment; and (4) whether the evidence was such that it might reasonably make the decision it made,” ¶6. The court’s conclusion that DOC didn’t lose jurisdiction more or less determines the outcome, though the court’s succeeding discussion goes beyond mere detail.
The wrinkle is whether Greer may avail himself of an equitable estoppel defense; whether, in other words, “the DOC was estopped from seeking revocation due to its issuance of the discharge certificate,” ¶21. The court indicates at the threshold that the doctrine simply may not be invoked in this context: “Estoppel is an equitable remedy and thus cannot be employed in this certiorari action to estop the DOC from seeking revocation of Greer’s probation or the Division from revoking Greer,” ¶22, but then immediately softens this seemingly adamantine bar: “While equitable estoppel is not an available remedy in a certiorari action, this concern is appropriately addressed as a question of due process,” ¶23. (Quick aside: to the extent due process addresses something distinct from equitable estoppel, then it might be argued that habeas would be available as a procedural mechanism, assuming of course that a constitutional or jurisdictional defect is at issue.)
Framing the problem here in terms of due process essentially asks what Greer knew and when he knew it: did he know (or should have known) he was indeed on probation, and that commission of a new offense would violate the rules of probation? Because, the court says, Greer “was physically present for his sentencing,” he would have heard pronouncement of the term of probation, and thus known its commencement date and length, ¶24. It follows that, when he received the discharge certificate, “Greer could not have reasonably believed he had completed the three-year period of probation the sentencing court had ordered him to serve,” ¶26. But: it’s one thing to say that as a matter of law a DOC-issued document can’t trump a court order, and another to say that as a matter of fact a layperson would know that an official, government-issued document was actually nugatory. Nonetheless, as just seen, the court isn’t detained by this dilemma. The court turns to the ancillary problem – whether Greer knew the rules of probation prohibited him from violating the law:
¶26 In addition, we may impute to Greer knowledge that he may not violate the law while on probation. See G.G.D. v. State, 97 Wis. 2d 1, 10, 12-13, 292 N.W.2d 853 (1980); see also Rodriguez, 133 Wis. 2d at 52 (“A petitioner cannot seriously contend that a probationer can violate the criminal laws of this state without affecting his or her probationary status ….”). Because Greer knew or should have known he was on probation when he committed his new felony offense and knew he could not violate the criminal laws while on probation, his due process rights were not violated by the DOC’s revocation of his probation based on the new criminal violation.
Law-abiding behavior, then, is so fundamental to supervision that revocation may be premised on imputed knowledge. Individually-tailored conditions surely raise knottier problems, as the court implies, footnote 6 (declining to reach question whether revocation could be premised on alcohol ban). And knottier still, if DOC ever wants to revoke a probationer for “absconding” (leaving the state or just failing to report to an agent) after issuing a discharge certificate. Does that last possibility strike you as unfair, not to say absurd? The reporting requirement is no less fundamental to supervision than law-abiding behavior, and if the one is (un)fair, so too is the other.