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SCOW: Circuit courts lack inherent authority to reduce or terminate a term of probation

State v. Dennis L. Schwind, 2019 WI 48, affirming a court of appeals’ summary disposition in 2017AP141-CR, 5/3/19; case activity (including briefs).

Section 973.09(3)(d) gives circuit courts authority to reduce or terminate a term of probation if 6 requirements are met. Schwind did not proceed under that statute because he couldn’t satisfy the requirements. So he argued that circuit courts also have inherent authority to reduce or terminate a term of probation for cause.  State v. Dowdy, 2012 WI 12, left this question open. This 5-2 opinion shuts it: No, circuit courts don’t have that authority.

¶35 We conclude that the circuit court does not have the power to grant Schwind’s motion for early termination of probation. Inherent authority of courts consists of only those powers that are necessary for the judiciary to accomplish its constitutionally mandated functions and preserve its role as a coequal branch of government. Probation is a statutory creation, and the power to reduce or terminate a term of probation is not necessary for courts to accomplish their constitutionally mandated functions. Therefore, Wisconsin courts do not have the inherent authority to reduce or terminate a period of probation. Accordingly, we affirm the decision of
the court of appeals.

If you are researching the “inherent authority” of circuit courts to do anything, read the majority opinion. It walks through the history of, and limitations on, the doctrine both in general and with respect to sentencing and probation.

Justice R. Dallett, joined by Justice A.W. Bradley, wrote an opinion concurring in part and dissenting in part. (SSA withdrew from participation). Dallett notes that circuit courts have the inherent authority to modify the terms of probation. (¶40)(citing State v. Sepulveda, 119 Wis. 2d 546, 554, 350 N.W.2d 96 (1984)). Furthermore, a statute cannot limit a circuit court’s inherent authority. (¶42).

Dallett also points out that over 66,000 people are on community supervision in Wisconsin and taxpayers spend over $32 million on them. Allowing circuit courts the inherent authority to reduce a term of probation when the defendant proves by clear and convincing evidence that the two goals of probation have been satisfied would free resources to spend on others in the community. (¶50). Those goals are: (1) protecting the public from criminal conduct; and (2) helping the probationer become a useful member of society. (¶48).

Lastly Dallett also points out that the majority denies circuit courts the ability to reduce a term of probation where a similarly-situated person would be permitted sentence modification. “This is far from administering justice,” she wrote. (¶45).

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