Drinkwater v. State

• Decision Date: 16 June 1975
• Docket Number: Nos. S,s. S
• Citation: 69 Wis.2d 60,230 N.W.2d 126
• Parties: Willie Lee DRINKWATER, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error. Larry TROTTER, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error. tate 73, 172.
• Court: Wisconsin Supreme Court

Page 126

230 N.W.2d 126

69 Wis.2d 60

Willie Lee DRINKWATER, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.

Larry TROTTER, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.

Nos. State 73, 172.

Supreme Court of Wisconsin.

June 16, 1975.

Howard B. Eisenberg, State Public Defender and Robert J. Paul, Asst. State Public Defender, Madison, for Willie Lee Drinkwater.

Victor A. Miller, Atty. Gen., and Robert D. Martinson, Asst. Atty. Gen., Madison, for the State.

Anthony K. Karpowitz, Legal Aid Society of Milwaukee, Milwaukee, for Larry Trotter.

Bronson C. LaFollette, Atty. Gen., Robert D. Martinson and James H. McDermott, Asst. Attys. Gen., Madison, for the State.

State No. 73 (Willie Lee Drinkwater): WRIT OF ERROR to review order of the circuit court for Milwaukee county: JOHN L. COFFEY, Circuit Judge. Order reversed and sentencing judgment modified and, as modified, affirmed.

State No. 172 (Larry Trotter): WRITS OF ERROR to review judgment and order of the circuit court for Milwaukee county: CHRIST T. SERAPHIM, Circuit Judge. Order reversed and sentencing judgment modified and, as modified, affirmed.

HEFFERNAN, Justice.

The basic situation in each of these cases is identical. Each defendant was convicted and placed on probation. Subsequently, each defendant was convicted of another offense and sentenced to prison for that offense. As a result of the later conviction, the probation on the first conviction was revoked, and in each case the revoking trial judge ordered that the sentence imposed after the revocation of probation in the first conviction was to be served consecutive to the sentence imposed after placing the defendant on probation.

It is the argument of each of the defendants, Willie Lee Drinkwater and Larry Trotter, that upon revocatioin of probation the trial judge has no statutory authority to order that the sentence then imposed be made consecutive to other sentences. They argue that the sentence ordered after revocation must commence immediately, and that, therefore, its commencement cannot be made effective in the future upon the completion of another prison term.

We agree with the contention of the defendants. We conclude that the authority given to a trial judge is statutory only and that, under the statutes, a trial judge has no authority to revoke probation and impose sentence to commence consecutive to another prison term. The sentences with which we are concerned herein, to the extent that they are consecutive, must be set aside.

In the case of Drinkwater v. State (State No. 73), Drinkwater was charged with burglary, found guilty, and sentenced on December 23, 1970, by Judge John L. Coffey to an indeterminate term of not to exceed four years at the Wisconsin State Reformatory. The execution of that sentence was stayed, and Drinkwater was placed on probation for three years. On July 8, 1971, Drinkwater pladed guilty of the charge of operating an automobile without the owner's consent. Judge Coffey then sentenced Drinkwater to an indeterminate term of not to exceed three years, to be served consecutive to the four-year term on the burglary conviction. The execution of that sentence was stayed also. Drinkwater was placed on three-years' probation, to be served concurrent with the term of probation on the burglary conviction. On October 9, 1973, Drinkwater was convicted of rape in the Milwaukee circuit court. On December 11, 1973, Drinkwater was sentenced by Judge Christ T. Seraphim to twenty years at the Wisconsin State Prison.

Following the imposition of that twenty-year sentence, Drinkwater was returned to Judge Coffey's court. The two periods of probation previously set by Judge Coffey were revoked on December 18, 1973, and the sentences of four and three years previously stayed were ordered to be served at the Wisconsin State Prison at Waupun concurrent with each other but consecutive to the twenty-year rape sentence. A writ of error was issued by this court to review the denial of Drinkwater's motion to correct that sentence.

In State No. 172, Larry Trotter was found guilty by Judge Herbert J. Steffes on March 20, 1972, of operating a motor vehicle without the owner's consent. Judge Steffes withheld sentence and placed Trotter on probation for four years. On Decembe 3, 1973, Trotter was found guilty of another charge of operating a motor vehicle without the owner's consent and was sentenced to a two-year term, to be served at the State Reformatory. On February 14, 1974, the Secretary of the Department of Health and Social Services administratively revoked Trotter's probation, and Trotter was returned to the circuit court for sentencing on the charge of which he had been found guilty on March 20, 1972, but for which sentencing had been withheld. Upon the return to circuit court on March 19, 1974, Judge Seraphim sentenced Trotter to a four-year term to run consecutive to the two-year term imposed on December 3, 1973. Writs of error were issued by this court to review the judgment of March 19, 1974, and to review the order of the court of July 31, 1974, that denied a motion for modification of the sentence.

The factual situations differ in that, in Drinkwater's case, the sentence was imposed and the execution withheld, and, in Trotter's case, no sentence was imposed. Nevertheless, the same basic question is presented by each set of circumstances--where there has been a determination by a trial judge to put a defendant on probation, may he thereafter, folllwing the revocation of that probation, order the sentence to commence sometime in the future, consecutive to a term imposed following the creation of a probation status and commencing prior to revocation of the probation.

A trial court has no inherent power to defer the execution of a sentence in a criminal case. Tht questiion was discussed in Drewniak v. State ex rel. Jacquest (1942), 239 Wis. 475, 484, 1 N.W.2d 899, 903, wherein this court stated:

'. . . courts have no inherent power to stay execution of a sentence in a criminal case in the absence of statutory authority except for the limited purpose of affording relief against the sentence itself.'

Ex parte United States (1916), 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129, pointed out that the stay of executioin of a sentence for the purpose of probation does not qualify as a stay for the limited purpose of affording relief against the sentence itself. This means that, unless a court has specific authority to stay the execution of a sentence and to order it to be served by the defendant consecutive to a later imposed sentence, it acts without authority. If there is no statutory authority for waht the trial judges did in the instant cases, the proviison that the sentence be consecutive is void.

The power sought to be exercised by the circuit judges in this instance is on that can only be conferred by statute. That proposition was recognized in State ex rel. Zabel v. Municipal Court (1923), 179 Wis. 195, 201, 190 N.W. 121, 191 N.W. 565, wherein this court said that it was the purpose of the probation statute to confer a new power upon the court--the power to suspend the execution of a sentence and to place the defendant on probation. The question in this case is whether the probation power conferred upon courts by the legislature in 1909 embraces the situation in which a trial judge orders that a sentence previously stayed is to be imposed effective following the completion of a term then being served. ¹

The state argues, however, that it need not resort to the inherent powers of the court, because the procedure utilized by each of the sentencing judges was specifically sanctioned by the statutes.

The state relies upon sec. 973.15(1), Stats. '973.15 Sentence, terms, escapes. (1) All sentences to the Wisconsin state prison shall be for one year or more, except as provided in s. 973.01(4). Except as otherwise provided in this section, all sentences commence at noon on the day of sentence, but time which elapses after sentence while the defndant is in the county jail or is at large on bail shall not be computed as any part of his term of imprisonment. The court may impose as many sentences as there are convictions and may provide that any such sentence be concurrent or that it shall commence at the expiration of any other sentence; and if the defendant is then serving a sentence, the present sentence may provide that it shall commence at the expiration of the previous sentence. If a convict escapes, the time during which he is unlawfully absent from the prison after such escape shall not be computed as part of his term. Courts may impose sentences to be served in whole or in part concurrently with a sentence being served in a federal institution or an institution of another state.'

The state relies upon this statute upon the theory that a trial judge, when imposing any sentence, in accordance with express language, may make that sentence effective 'at the expiration of any other sentence,' even though that 'other sentence' has been previously imposed, possibly by another judge, and the sentence being imposed is only the result of the exercise of sentencing powers subsequent to the revocation of a probation.

The defendants argue that sec. 973.15(1), Stats., has nothing to do with sentencing following a revocatiion of probation, that it is primarily applicable when multiple sentences are imposed at one time or when sentence is imposed in a nonrevocation situation. The defendants argue that resort must be made to the more specific statute that in detail covers court procedure to be employed upon revocation. That statute, sec. 973.10(2), provides in part:

'If a probationer violates the conditions of his probation, the department may order him brought before the court for sentence which shall then be imposed without further stay or if he has already been sentenced, may order him to prison; and the term of the sentence shall begin on the...