Edelman v. State, S
| Decision Date | 05 March 1974 |
| Docket Number | No. S,S |
| Citation | 215 N.W.2d 386,62 Wis.2d 613 |
| Parties | Alexander EDELMAN, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 248. |
| Court | Wisconsin Supreme Court |
Howard B. Eisenberg, State Public Defender, Madison, for plaintiff in error.
Robert W. Warren, Atty. Gen., David J. Becker, Asst. Atty. Gen., Madison, for defendant in error.
The only issue raised, briefed and considered is the consequence of a change made by the Wisconsin legislature in the statute controlling paroles from state prisons and the Milwaukee county house of correction. As amended by sec. 300 of ch. 90, Laws of 1973, the parole statute, sec. 57.06(1)(a) reads as follows, additions to the statute italicized and deletions stricken:
The issue raised as to statutory construction is to the meaning of the clause added, 'if there is no minimum prescribed for the offense,' and the clause retained, 'or when he has served the minimum term prescribed by statute for the offense.' Both the attorney general and the state public defender, in their briefs and oral argument, agree that the statute's reference to 'at any time' is not to be read without reference to the clause added and the clause retained that follow the reference. Neither the attorney general nor the state public defender argue or suggest that the statutory change results in parole eligibility with no statutory or judicially-imposed minimum period of incarceration to be served. Instead the attorney general contends that the change in the parole statute restores the right of trial judges to impose minimum sentences to be served, while the state public defender argues that the statutory change, while deleting a specific reference to a one-year minimum, leaves unchanged provisions of ch. 973 of the Wisconsin statutes requiring one year's incarceration before becoming eligible for parole.
It is the position of the attorney general that the clause added, 'if there is no minimum prescribed for the offense,' cannot be read to mean a minimum sentence imposed by statute. The reason: the clause immediately precedes the clause retained, 'or when he has served the minimum term prescribed by statute.' To construe both clauses as references to statutorily prescribed minimums would leave no reason for adding the second clause. One would be superfluous, and statutes are to be construed so that no part or provision is rendered superfluous by the construction given. (Citing: State v. Franklin (1971), 49 Wis.2d 484, 487, 182 N.W.2d 289.) So the attorney general concludes that the added clause's reference to 'minimum prescribed' must be to a minimum apart from a statutory enactment. It is submitted that this could be only a court-imposed sentence. So it would follow that the clause added refers to a court-imposed minimum. Separate meanings must be accorded the clause added and the clause retained. (Citing: Milwaukee v. Shoup Voting Machine Corp. (1972), 54 Wis.2d 549, 553, 196 N.W.2d 694.) Since the legislature used two different phrases to describe the minimum, and in order to give effect to both the clause added and the clause retained, the attorney general submits that the clause added must be construed to mean 'minimum prescribed by the court for the offense.' The attorney general contends that the trial court, in the case before us, did, therefore, have the right to impose a minimum sentence of five years.
It is the position of the state public defender, representing the defendant, that provisions of ch. 973, relating to sentencing, do establish a one-year minimum sentence on all indeterminate sentences to the state prisons. The added clause and retained clause alike are references to such statutory establishment of a one-year minimum on indeterminate terms to the state prisons. Statutes are to be read together. (Citing: State v. Fish (1963), 20 Wis.2d 431, 438, 122 N.W.2d 381.) The public defender sets forth sec. 973.02, Stats., dealing with place of imprisonment, providing '. . . 2) a sentence of more than one year shall be to the Wisconsin state prisons and the minimum under the indeterminate sentence law shall be one year. . . .' He additionally relies upon sec. 973.15, Stats., providing '. . . (1) All sentences to the Wisconsin state prisons shall be for one year or more, except as provided in s. 973.01(4). . . .' The public defender sees these statutes as prescribing a minimum sentence of one year for all indeterminate sentences. Rejecting the claim of right of a trial court to set a minimum sentence, the public defender notes that sec. 973.01, as to sentences for a term of years, provides that the court 'may fix a term less than the prescribed maximum' but provides for the form of sentence to be: 'You are hereby sentenced to the Wisconsin state prisons for an indeterminate term of not more than . . . (the maximum as fixed by the court) years'. The public defender submits that a minimum sentence under the indeterminate sentence law is one year and that a trial court has no authority to impose a greater (or lesser) minimum term.
Unless the state public defender is correct in contending that ch. 973 contains a one-year minimum for indeterminate sentences, we would conclude that the attorney general correctly concludes that a trial court's right to fix a minimum sentence has been revived and restored. The clause added--'if there is no minimum prescribed for the offense'--could hardly be a reference to a nonexistent statutory minimum and, particularly not, where the clause retained--'or when he has served the minimum term prescribed by statute for the offense'--specifically refers to statutorily prescribed minimum sentences. So the initial inquiry must be as to whether, with a specific reference to a one-year minimum deleted from the parole statute, does there remain a one-year minimum for indeterminate sentences contained in the sentencing statutes.
To the question of whether the sentencing statutes contain a one-year minimum for indeterminate sentences, we answer in the affirmative. Wisconsin has had an indeterminate sentence law since 1925. (Ch. 359, Laws of 1925) Prior to that time trial courts imposed sentences with both maximum and minimum limits. Upon adoption of the indeterminate sentence law, the minimum term was statutorily set at one year. (Sec. 359.07, Stats.1925) In 1931, the legislature further provided that minimum sentences were to be those 'fixed by . . . law.' (Ch. 181, Laws of 1931) The attorney general correctly construed this revision as depriving trial courts of the right to impose minimum sentences. (21 O.A.G. 546 (1932)) The attorney general correctly concluded that the statutory provisions in the sentencing law were 'to the effect that the minimum term shall be that fixed by law--not that fixed by the court.' (32 O.A.G. 412, 414 (1943)) Subsequently, the statutory reference in the sentencing statute was changed to be 'minimum fixed by statute.' (Ch. 631, Laws of 1949) While this language was subsequently omitted, sec. 959.044(b), Stats.1957, and sec. 973.02, Stats.1971, continued to require a minimum term of one year in a sentence to the state prisons. Such statutory requirement of a one-year minimum, as stated in sec. 973.02, Stats., is that 'the minimum under the indeterminate sentence law shall be one year.' Additionally, sec. 973.15, Stats., requires that: 'All sentences to the Wisconsin state prisons...
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