Huggett v. State
| Decision Date | 06 June 1978 |
| Docket Number | No. 76-115-CR,76-115-CR |
| Citation | 83 Wis.2d 790,266 N.W.2d 403 |
| Parties | Barbara Jo HUGGETT (now known as Barbara Huggett Gere), Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. |
| Court | Wisconsin Supreme Court |
Edward S. Marion, Asst. Atty. Gen. (argued), Bronson C. La Follette, Atty. Gen., on brief, for defendant in error.
On July 22, 1970, Barbara Huggett pleaded guilty to a charge of theft. 1 The charge arose out of her receipt of $6,473.96 of public assistance funds from the county from August 1, 1967 to October 31, 1969, during which time she received approximately $5,152.64 in earnings which she failed to report as required by sec. 49.12(6), Stats. 2 Huggett lacked funds to hire her own counsel, and counsel was appointed.
On July 22, 1970, Huggett waived the preliminary, entered a plea of guilty, and was sentenced. The trial court imposed an indeterminate five-year sentence, stayed execution of the sentence, and placed Huggett on probation for five years. The only condition of probation specified in the trial court's judgment was that she "make payments in such manner as the Department of Health and Social Services shall direct as follows: Restitution: $6,473.96; costs: $59.00." At the sentencing hearing on July 22, 1970, the trial court directed Huggett's probation officer to determine what restitution Huggett should make during the probationary period depending upon her earnings. Huggett had seven children at the time of her conviction. She agreed that the child support money which her ex-husband paid into court would be applied in partial satisfaction of her restitution obligation. This sum appeared to be $20.00 per month.
On April 20, 1971, approximately nine months after she was placed on probation, Huggett appeared before the trial court to request release of a portion of the $500 restitution she had made so that she could use the funds to meet her home mortgage payments. She testified that she was employed and had a net monthly income of $280 and that her husband had a monthly income of $450. The court granted Huggett's request, and released $250 to her; she agreed that the remaining $250 would be applied to restitution as would all future support payments made to her by her ex-husband.
The record before the court does not contain a complete statement of Huggett's payments, but it does show that many payments were made into court. There is no information in the record regarding Huggett's behavior during the five-year probation period, except the trial court's comment in its denial of post conviction motions that during probation Huggett "was brought before the Court for minor infractions of the law." The record does not indicate the nature of the infractions.
On April 7, 1975, when the five-year probationary period was coming to an end, Huggett signed a one-page Division of Corrections printed form No. C-1-1 (12-68), entitled "Waiver of Court Appearance and Order of Court." The record is silent as to what Huggett had been told as to her rights on extension of probation except for a statement in her post-conviction papers that she was not informed of any right to contest the extension.
The first part of the form completed by the Department of Health and Social Services The second part of the form, captioned "Waiver of Court Appearance Only," was completed and signed by Huggett and witnessed by the probation officer, and is set forth below:
states that Huggett had been convicted of theft, placed on probation for two years (sic) and that "since she (Huggett) has not been able to fully comply with the conditions set forth by the probation, her return to court, for further disposition, has been ordered for the reason(s) that restitution has not been paid in full."
The third part of the form is a printed court order with space for insertions which states in its entirety as follows:
"SPACE BELOW TO BE
COMPLETED BY
"Restitution: $5,857.96
Date: 4-9-75 By the Court S/ H.W. McEssy
------ --------------
Judge
"Dated the 29 day of April 1975
$W40 S/ H.W. McEssy
--------------
Judge"
This printed form was intended to fulfill the statutory requirement that a court may, for cause, order extension of probation. Sec. 973.09(3), Stats., provides:
"Prior to the expiration of any probation period, the court may for cause by order extend probation for a stated period or modify the terms and conditions thereof."
The court order extending probation shows the amount of restitution owing as $5,857.96. The record does not show how the court arrived at this figure. In any event, on the basis of this court order it appears that in nearly five years of probation Huggett has repaid $675.
In January 1976, six months into the extended probation period, a probation violation warrant was issued charging Huggett as an absconder. Huggett waived her probation revocation hearing, and probation was revoked February 11, 1976. On February 18, 1976, Huggett was received at the Taycheedah Correctional Institution to begin serving the executed five-year sentence.
At no time did Huggett ask the court to modify or remove the condition that she make restitution.
On April 21, 1976, Huggett, represented by the State Public Defender, moved for post-conviction relief. A hearing was held on the motion on May 20, 1976, and during that hearing, the State stipulated that Huggett had been indigent at all times subsequent to her conviction.
The trial court denied post-conviction relief. In its decision the trial court noted that Huggett As to the extension of probation without Huggett's appearance, the trial court determined that Huggett waived her appearance at the extension hearing and that the revocation of probation "was for rule violations other than for failure to pay restitution." It is this order denying Huggett post-conviction relief which Huggett asks this court to review.
On October 29, 1976 this court ordered Huggett released from custody pending review of the trial court's order denying her motion for post-conviction relief.
To put this appeal in proper perspective, we state first those issues which Huggett does not raise on appeal. On appeal Huggett does not attempt to justify having left the state without the permission of her probation officer. Nor does Huggett challenge on appeal the sums of restitution imposed as a condition of probation.
Sec. 973.09, Stats., provides that "when a person is convicted of a crime, the court may, by order . . . place him on probation to the department . . . and may impose any conditions which appear to be reasonable and appropriate." This statute authorizes the imposition of restitution in a proper case as a reasonable and appropriate condition of probation. State v. O'Connor, 77 Wis.2d 261, 294, 252 N.W.2d 671 (1977).
This court has adopted Sec. 3.2 of the American Bar Association Standards Relating to Probation (Approved Draft 1970), which sets forth appropriate conditions of probation. Sec. 3.2 provides, in pertinent part, as follows: 3
See State v. Garner, 54 Wis.2d 100, 106, 194 N.W.2d 649 (1972); State v. Gerard, 57 Wis.2d 611, 619, 205 N.W.2d 374 (1973), app. dismissed 414 U.S. 804, 94 S.Ct. 148, 38 L.Ed.2d 40 (1973); Edwards v. State, 74 Wis.2d 79, 81, 246 N.W.2d 109 (1976). 5
The validity and reasonableness of a condition of probation must be measured by how well it serves to effectuate the objectives of probation. 6 The dual goals of probation are "the rehabilitation of those convicted of crime and the protection of the state and community interest." State v. Tarrell, 74 Wis.2d 647, 653, 247 N.W.2d 696, 700 (1976).
Restitution can aid an offender's rehabilitation by strengthening the individual's sense of responsibility. The probationer may learn to consider more carefully the consequences of his or her actions. One who successfully makes restitution should have a positive sense of having earned a fresh start and will have tangible evidence of his or her capacity to alter old behavior patterns and lead a law-abiding life. Conditioning probation on making restitution also protects the community's interest in having the victims of crime made whole. However, conditioning probation on the satisfaction of requirements which are beyond the probationer's control undermines the probationer's sense of responsibility. 7
Huggett's primary assertion on appeal is that she was not properly on probationary status at the time she left the state, because there was...
To continue reading
Request your trial
- State v. Dowdy
-
State v. Gudgeon
...argues that Gudgeon should merely get a new extension hearing. ¶ 28 We agree with the State. Our supreme court in Huggett v. State, 83 Wis.2d 790, 266 N.W.2d 403 (1978), employed in a similar case the very procedure the State advocates here. Huggett had failed to make all of the restitution......
-
Fox v. State
...on making restitution also protects the community's interest in having the victims of crime made whole. Huggett v. State, 83 Wis.2d 790, 798, 266 N.W.2d 403, 407 (1978). Thus, "[r]estitution imposed in a proper case and in an appropriate manner may serve the salutary purpose of making a cri......
-
State v. Fernandez
...law has repeatedly stressed the necessity of considering a defendant's ability to pay when ordering restitution. In Huggett v. State, 83 Wis.2d 790, 266 N.W.2d 403 (1978), this court addressed a situation where a had her probation extended for continued payment of restitution even though sh......