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SCOW to review circuit court’s inherent authority to reduce term of probation

State v. Dennis L. Schwind, 2017AP141-CR, petition for review of a summary disposition granted 9/4/18; case activity

Issues (from Schwind’s petition for review):

  1. Did the circuit court have inherent authority to reduce the length of Schwind’s probation?

  2. If circuit courts have inherent authority to reduce the length of probation, what standard applies to the exercise of their authority?

State v. Dowdy, 2012 WI 12, ¶4, 338 Wis. 2d 565, 808 N.W.2d 691, SCOW held that §973.09(3)(a), which gives circuit courts the authority to extend probation, or modify its terms or conditions, does not also give it the authority to reduce the length of probation.  SCOW expressly left open the question of “whether the circuit court has inherent authority to reduce the length of probation, and if so, what standard applies.” Id. Schwind’s case picks up where Dowdy left off. Schiwnd’s petition for review cites DOC data indicating that in 2017 over 45,000 people were in probation in Wisconsin, so SCOW’s resolution of this issue will affect a lot of SPD clients.

Schwind pled guilty to numerous acts of child sexual assault and received a sentence of 25 years of probation . His Judgment of Conviction states: “NOTE: Court would consider early termination of supervision after defendant has served a minimum of 15 years, upon recommendation of the Agent.” (Opinion, 2). Schwind’s probation agent thought he was “doing exemplary.” Schwind moved the circuit court for early release twice, lost, and appealed. The court of appeals held that it was bound by Dowdy, which includes vigorous dissents by both Abrahamson and A.W. Bradley. Abrahamson argues that circuit courts have the inherent authority to reduce the length probation for “cause”–when doing so serves the dual purposes of probation: the rehabilitation of the defendant and the protection of society without putting the defendant in prison. (Dowdy, Abrahamson, J. dissenting ¶108).

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