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Reconfinement After Revocation of Extended Supervision – Review under § 809.30

State v. Christopher Swiams, 2004 WI App 217
For Swiams: Jefren E. Olsen, SPD, Madison Appellate

¶4 The question presented by this appeal is whether persons sentenced to a bifurcated term of imprisonment whose extended supervision is revoked may seek relief under WIS. STAT. RULE 809.30 from the trial court’s reconfinement order. We hold that they may.

Review of reconfinement has been a sticking point for some time, in Milwaukee anyway. If all you need or want to know is how to process review of ES revocation, here’s a quick summary:

We live in a bifurcated world; revocation and reconfinement are separate events, separately challenged.

When DOC obtains ES revocation, the person is returned to the trial court to determine reconfinement time. If ES revocation has been contested, then a hearing will have been conducted by DHA (DOA) and review of the revocation is by certiorari. See ¶6 n. 6.

Where revocation has been waived, the revoking authority is DOC; the court of appeals observes, id., that waiver “will rarely, if ever” result in “judicial review of whether revocation was warranted.” (Not to make this unnecessary complex, but it’s hard to imagine certiorari ever being the vehicle for challenging revocation waiver, because you’re limited to the record of waiver; you’ll necessarily have to raise a collateral – extra-record – challenge to waiver and habeas would be the mechanism.)

Review of reconfinement (as distinct from revocation itself) is by notice of intent under Rule 809.30, ¶¶4, 23. It’s really not any different from revocation of probation on a withheld sentence – you’d review the revocation by certiorari, and the sentence after revocation by notice of intent.

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