Brozosky v. State

Decision Date04 December 1928
Citation222 N.W. 311,197 Wis. 446
PartiesBROZOSKY v. STATE.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Error to review a judgment of the County Court for Walworth County; Roscoe R. Luce, Judge. Affirmed.

Joe Brozosky was convicted of violating the liquor laws as a second offender, and he brings error.--[By Editorial Staff.]

A judgment entered January 17, 1928, sentenced defendant to fine and imprisonment for a second offense under the liquor laws for an offense committed July 16, 1927.

The information contained two counts. One count was dismissed on motion of the district attorney. The court permitted the defendant to enter a plea of nolo contendere to the information, which then alleged that the defendant had illicit liquor unlawfully in his possession, and also that this was his second offense under the liquor laws. The court adjudged the defendant guilty. This judgment provided:

“That the court withholds sentence and places you on probation under the direct custody and control of this court for the full term and period of one year, conditioned, however, on your payment of the costs, and in the event that during this period it shall appear to the court in any manner that you are not living up to the laws of this state, that your conduct is not good, that your companions are bad, or if for any other reason, the court shall deem that the good of society and your own good require it, you will be brought before this court and sentenced, and the time you have been at liberty will not be counted on that time.”

Some two months after this judgment was entered the defendant was brought before the court. After a summary hearing, a fine was imposed and the defendant was given a term in the house of correction. In pronouncing this sentence the court found that the defendant had violated the conditions of his probation, reciting such violations in detail, and found that this was his second offense under the liquor laws of the state.

Thorson & Seymour, of Elkhorn, for plaintiff in error.

John W. Reynolds, Atty Gen., J. E. Messerschmidt, Asst. Atty. Gen., and Charles M. Williams, Dist. Atty., and Easton Johnson, Asst. Dist. Atty., both of Whitewater, for the State.

STEVENS, J.

[1] 1. The court had the power to impose sentence after the expiration of the term at which the defendant was adjudged guilty. Subsection (1) of section 57.04 of the Statutes expressly confers upon the court the power “in its discretion” to “suspend the judgment or stay the execution thereof and place the defendant on probation for such period of time, * * * upon such terms and conditions, * * * as it shall determine.” Subdivision (2) of this same section provides that the probation officer “for causes hereinafter named, may, without warrant or other process, or upon the order of the court, at any time until the final disposition of the case, take the probationer and bring him before the court; and thereupon, if the court shall have reason to believe from the report of the probation officer, or otherwise, that the probationer has violated or is violating the conditions of his probation, or is engaging in criminal practices, or has formed improper associates, or is leading a vicious life, it may revoke such probation and pronounce sentence on the former conviction, or if sentence has been pronounced, issue commitment on the sentence or judgment without deduction of the period of probation.”

This statute, which in effect became a part of the judgment by which defendant was placed on probation, expressly authorized the court to sentence at any time before the end of the period of probation.

The fact that the term at which the defendant was adjudged guilty had expired did not deprive the court of the power to terminate the probation and impose sentence at a subsequent term. At common law the court had no power to revise or change its judgment or sentence in criminal cases after the term at which he was sentenced had expired. For that reason it was held in State ex rel. Zabel v. Municipal Court, 179 Wis. 195, 199-200, 190 N. W. 121, 191 N. W. 565, that a trial court could not, after the term had expired, so change or modify a judgment of imprisonment as to permit the defendant to be placed upon probation, where the judgment originally entered made no provision for probation. But the judgment here in question did provide for probation, and for the subsequent sentence of the defendant if he violated the terms of his probation. So that the sentence here in question was imposed in strict accord with the express terms of the judgment of conviction, and in order to carry out the terms of that judgment and pursuant to power expressly conferred by statute. The sentence imposed did not change or modify the judgment of the court, as it did in the Maxon Case, which was considered in State ex rel. Zabel v. Municipal Court, supra. The Legislature, in conferring this broad power upon the court, doubtless had in mind that, in order to accomplish the beneficent results attained by probation, it was essential that courts retain jurisdiction with power to sentence at any time during the period of probation, whenever the good of society or of the probationer demands that probation be terminated and punishment imposed.

[2] 2. A court is not confined to the imposition of a small fine in sentencing one who is permitted to enter the plea of nolo contendere. There is a conflict in the decided cases upon this question. Those that hold that the courts are limited to the imposition of a small fine when such plea is interposed rest their decision “upon no more substantial basis than a possibly ambiguous phrase in a passage from Hawkins, Pleas of the Crown, which stated that:

Sec. 3. An implied confession is where a defendant, in a case not capital, doth not directly own himself guilty, but in a manner admits it by yielding to the king's mercy, and desiring to submit to a small fine.”

Hawkins “does not undertake to state with any certainty the precise effect of the implied confession upon the sentence. Putting oneself on the mercy of the king seems to have been at least an appeal for mercy, and at most a consent to be fined if let off with that--not a plea, but a petition, the rejection of which may possibly have required a plea. * * * But, even if we regard the implied confession as a petition which in Hawkins' time had to be accepted as tendered, in modern practice it has been transformed into a formal plea of nolo contendere. Like the implied confession, this plea does not create an estoppel, but, like the plea of guilty, it is an admission of guilt for the purposes of the case. Section 3, it is true, speaks of the defendant's yielding to mercy and his desire ‘to submit to a small fine’; but, even if we assign to these words the more comprehensive meaning suggested, they do not say that the court is bound to yield to the prisoner's petition in fixing sentence, nor do t...

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31 cases
  • Peel v. State
    • United States
    • Florida District Court of Appeals
    • February 1, 1963
    ...defendant in the same position as though he had pleaded guilty or had been found guilty by the verdict of a jury. Brozosky v. State, 1928, 197 Wis. 446, 451, 222 N.W. 311.' The Supreme Court of New Jersey has approved the use of a plea of nolo contendere or 'non vult' in a case similar to t......
  • State ex rel. Warren v. Schwarz
    • United States
    • Wisconsin Supreme Court
    • August 27, 1998
    ...Wis.2d 494, 503-504 n. 6, 465 N.W.2d 490 (1991); Ellsworth v. State, 258 Wis. 636, 638-39, 46 N.W.2d 746 (1951); Brozosky v. State, 197 Wis. 446, 450, 222 N.W. 311 (1928). The same is true for an Alford plea--a view supported by the Wisconsin Jury Instructions. See Wis JI--Criminal SM-32A a......
  • Hayes v. State
    • United States
    • Wisconsin Supreme Court
    • April 3, 1970
    ...trial court may place a person on probation and reserve sentencing which may be imposed in another term upon violation of probation. Brozosky v. State, supra. We think sound public policy favors the exercise by a trial court of its power to amend, modify, and correct a judgment of sentencin......
  • Ex parte Medley
    • United States
    • Idaho Supreme Court
    • February 17, 1953
    ...73 Okl.Cr. 441, 122 P.2d 162; State v. Uttke, 60 N.D. 377, 234 N.W. 79; People v. Hodges, 231 Mich. 656, 204 N.W. 801; Brozosky v. State, 197 Wis. 446, 222 N.W. 311; People v. Hill, 164 Misc. 370, 300 N.Y.S. 532; State v. Pascal, 1 N.J. 261, 62 A.2d 882; Alewine v. State, 79 Ga.App. 779, 54......
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