Brown v. Wolke
| Decision Date | 07 May 1968 |
| Parties | Frank J. BROWN, Jr., Plaintiff in Error, v. Michael S. WOLKE, Defendant in Error. |
| Court | Wisconsin Supreme Court |
Robert H. Friebert, State Public Defender, Madison, Richard A. McDermott, Milwaukee, for plaintiff in error.
Bronson C. La Follette, Atty. Gen., Madison, Hugh R. O'Connell, Dist. Atty., Milwaukee County, E. Michael McCann, Asst. Dist. Atty., Milwaukee, for defendant in error.
The trial court dismissed the petition for a writ of habeas corpus which had been filed by plaintiff in error, Frank J. Brown, Jr. Counsel was provided for the plaintiff in error by the trial court for the hearing of his petition and the matter is now before this court on a writ of error.
It appears that Brown is in the Milwaukee county jail on a commitment for want of recognizance arising out of two counts of first degree murder and a request for detention charging parole violation filed with the sheriff by the Wisconsin State Department of Public Welfare (now the Department of Health & Social Services). On oral argument, this court was informed that Brown had elected to remain in the Milwaukee county jail rather than exercise his right to be returned to the state penal institution to serve the remainder of his sentence for which his parole had been revoked and that he had made that election with full knowledge of the consequences thereof.
A narrow issue is presented in this case. The trial court, in effect, determined that inasmuch as Brown was being held as a parole violator it did not have jurisdiction to determine the merits of the habeas corpus proceeding as it related to the custodial detention on the two murder charges. The trial court indicated that if it were to consider the writ of habeas corpus directed to Brown's detention on the two murder charges, a favorable consideration thereof could only result in 'a partial issuance of a writ of habeas corpus.'
We are satisfied the result reached by the trial court would have been different had it not been called upon to pass judgment in the instant case prior to the decision of this court in State ex rel. La Follette v. Circuit Court (1967), 37 Wis.2d 329, 155 N.W.2d 141. In State ex rel. La Follette v. Circuit Court, this court considered sec. 292.20, Stats. 1 and in doing so held that the statute was to be given a broader meaning so as to embrace a limited discharge from custody of the penal institution in which the petitioner is confined as well as an absolute discharge from all custody. See also State ex rel. Goodchild v. Burke (1965), 27 Wis.2d 244, 251--252, 133 N.W.2d 753.
The state, in its brief, concedes that a court hearing a post-conviction habeas corpus petition has jurisdiction to consider the petition on its merits and, upon proper grounds, grant the relief therein sought, even though the petitioner would remain in confinement for other reasons. The same rule applies to pre-conviction habeas corpus petition. Whether Brown is being legally held for a violation of his parole has no direct relation to his right to a determination on the...
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