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State ex rel. Ardonis Greer v. David H. Schwarz, 2011AP2188, petition for review granted 6/12/13

Review of published court of appeals decision; case activity

Issues (composed by On Point):

If the Department of Corrections erroneously issues a probationer a discharge certificate under 973.o9(5) before the probationary term expired, but later discovers the error and proceeds to revoke the probationer, did the Department lose jurisdiction over the probationer?

If the Department retained jurisdiction over the probationer, is it equitably estopped from revoking him for conduct occurring before the probationary term expired?

Petitions for review are not electronically filed, so the above issues are based on the two important legal issues decided by the court of appeals, which is described in detail in our post on its decision. (The decision also addressed Greer’s challenge to the hearing examiner’s exercise of discretion, but that challenge was based primarily on the facts leading to revocation, and do not appear to raise a legal issue that would meet the standard for supreme court review.)

It seems safe to say DOC doesn’t often issue a discharge certificate too early. Nonetheless, the decision in this case will tell us the correctness of the court of appeals’ conclusions that: 1) the wrongly-issued discharge certificate was invalid and so did not divest DOC of the probationary authority it had over Greer under the judgment of conviction and relevant probation statutes; and 2) equitable estoppel is not an available remedy in certiorari proceedings. The court of appeals did acknowledge that while equitable estoppel is not available, the erroneous discharge certificate might raise due process concerns, at least in theory: “Based on the facts of this case, however, we conclude the DOC did not violate Greer’s due process rights because Greer knew or should have known he was on probation at the time he committed the new intimidation of witness offense in November 2009 and we impute to him knowledge that he cannot violate other criminal laws while on probation.” (¶23). Perhaps the supreme court will have a different take on the due process concerns, which, as suggested in both our post and a reader’s comment to that post, may not be as simple as the court of appeals says.

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