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Probation extension passes due process muster

State v. Daniel E. Olsen, 2017AP918-CR, District 4, 1/25/18 (one-judge decision; ineligible for publication); case activity (including respondent’s brief)

At the request of DOC, the circuit court extended Olsen’s probation by one year and increased his monthly restitution payment. His challenges to the court’s orders fail. 

DOC alleged Olsen missed some restitution payments despite having the ability to pay more than the $100/month he’d been ordered to pay. Instead of holding an evidentiary hearing on DOC’s allegations, the circuit court relied on the probation agent’s unsworn assertions that Olsen skipped some restitution payments even though bank statements showed he had the financial wherewithal to make payments. (¶8).

Olsen argues this summary procedure violated his right to cross-examine witnesses, present his own witnesses, and present other evidence before probation is extended, State v. Hardwick, 144 Wis. 2d 54, 59-60, 422 N.W.2d 922 (Ct. App. 1988), or conditions are modified, State v. Hays, 173 Wis. 2d 439, 447, 496 N.W.2d 645 (Ct. App. 1992). The court of appeals doesn’t directly say whether the circuit court erred; instead, it appears to rule that any error was harmless, or didn’t prejudice Olsen, because he hasn’t shown what evidence he would  have presented to refute the allegations. (¶8).

Olsen also argues he wasn’t given sufficient formal notice of the extension hearing. (¶9). Olsen cites no authority showing he was entitled to formal notice, and he had actual notice because he was present at the hearing where DOC requested extension, after which the court set a hearing on the request. (¶¶10-11).

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