Smith v. State
| Decision Date | 31 October 1978 |
| Docket Number | Nos. 76-506-C,76-527-CR,s. 76-506-C |
| Parties | Donald E. SMITH, Jr., Plaintiff in error, v. STATE of Wisconsin, Defendant in error. Richard A. MARCINIAK, Plaintiff in error, v. STATE of Wisconsin, Defendant in error. |
| Court | Wisconsin Supreme Court |
Ben Kempinen, Legal Assistance to Inmates Program, Madison, submitted brief for plaintiffs in error.
Bronson C. La Follette, Atty. Gen., and Betty R. Brown, Asst. Atty. Gen., submitted brief for defendant in error.
We are asked to decide in these two cases whether, in circumstances where a defendant has been convicted of multiple offenses, but placed on probation with sentencing withheld or execution of sentence stayed, consecutive sentences may be imposed or allowed to go into effect following revocation of probation.
In each of these cases the defendant was found guilty of multiple felony offenses and initially placed on probation.
In Smith's case, following conviction, sentencing was withheld and the defendant was placed on probation. Subsequently, it was determined that Smith had committed additional violations. His probation was revoked. He was returned to court for sentencing, and at that time he was sentenced on five counts of issuing worthless checks, for which he had been convicted earlier. The sentences were for one year on each count, with four of the sentences to run concurrently and one to run consecutively to the others. 1
Marciniak, after a jury trial, was found guilty of burglary and pleaded guilty to two additional charges of burglary. He was sentenced to three consecutive ten-year terms. The execution of all sentences was stayed, and he was placed on probation. Subsequently, Marciniak's probation was revoked, the stays were vacated, and the sentences went into effect.
The effect of the sentencing following revocation in Smith's case and the effect of the lifting of the stay of execution of sentences in Marciniak's case was to send each of the defendants to state prison under circumstances where at least one of the sentences put into effect following the revocation of probation could not start "on the date he enters the prison." Sec. 973.10(2), Stats.
Both Smith and Marciniak argue that, under the rationale of Drinkwater v. State, 69 Wis.2d 60, 230 N.W.2d 126 (1975), it was beyond the statutory authority of the sentencing court to impose or to allow to be put into effect consecutive sentences following revocation of probation.
In Drinkwater, we held that a court's sentencing authority was controlled by statute and that, in the circumstances of Drinkwater (and Trotter, which was incorporated in Drinkwater ), consecutive sentences could not be imposed or put into effect following the revocation of probation. In the Drinkwater-Trotter situation, however, each of the defendants was found guilty and sentenced to prison for a separate offense which intervened between his original order of probation and the subsequent revocation of probation. The Drinkwater case was based upon the express legislative direction which appears in sec. 973.10(2), Stats. The pertinent part of that statute provides:
"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 date he enters the prison." (Emphasis supplied.)
The holding, then, of Drinkwater is that a sentence imposed upon a revocation of probation cannot be made consecutive to a sentence previously imposed for an intervening conviction, because the sentence newly imposed or allowed to go into effect cannot begin on the date the defendant enters prison.
It is apparent that the factual setting of Smith and Marciniak differs from that of Drinkwater and Trotter.
Smith was found guilty and convicted of multiple offenses and was placed on probation. Sentencing was withheld. Probation was subsequently revoked and sentences were imposed, but no prison sentence intervened between the original conviction and probation and his sentencing following revocation of probation.
Although in Marciniak's case sentences were imposed, execution of the sentences was withheld, and he was placed on probation. No prison sentence intervened between the original sentencing and the subsequent revocation. Upon the revocation of probation, the order which stayed the execution of the original consecutive sentences was set aside and the consecutive sentences were permitted to go into effect.
It is thus apparent that, in the Drinkwater-Trotter situation, the sentences put into effect upon revocation of probation could not commence on the date of entry into prison, because they were ordered to be consecutive to an intervening prison term. Because there was no intervening prison term in respect to Smith and Marciniak, at least one term for which they were sentenced to prison following revocation of probation would commence on the date they entered prison.
There is thus a factual distinction to be made between the consecutive sentences imposed on Drinkwater and Trotter and the consecutive sentences imposed on Smith and Marciniak. We conclude that the situations are not only factually different, but that the sentencing of Smith and Marciniak is fully consistent with the rationale of Drinkwater.
In Drinkwater, we pointed out that the final clause in the first sentence of sec. 973.10(2), Stats., "and the term of the sentence shall begin on the date he enters the prison," applied to both situations mentioned in sec. 973.10(2) when a defendant after revocation is brought before the court for sentence and when a defendant has previously been sentenced and then revoked. It is clear, however, that when sec. 973.10(2) provides that a defendant may be brought before the court for "sentence," the court's power is not limited to the authority to impose but one sentence. Rather, the court may conduct a Sentencing procedure and, for each conviction in respect to which probation has been revoked, the court may impose a sentence. In fact, then, sec. 973.10(2) provides that, following revocation a probationer who has not previously been sentenced may be returned to the court for "sentencing."
When the final clause is read in conjunction with either of the factual situations posed on this appeal and when it is realized that the authority of the court is to impose whatever number of sentences is appropriate, it is apparent that the stricture imposed on the sentencing authority is that the term of the sentence or term of the sentences imposed at the sentencing procedure following revocation must commence when the defendant enters prison.
Sec. 973.10(2), Stats., then, does not direct that each sentence imposed following revocation will commence on the date the defendant enters prison but only directs that the term of the sentences imposed commence on the date the defendant enters prison.
As pointed out in Drinkwater, the same rule is to be applicable whether the sentences were previously imposed and execution withheld or whether sentencing was withheld and imposed following revocation. The lacuna in the authority granted to the trial judge upon sentencing following revocation that was found to be fatal in Drinkwater is not the failure of the statute to authorize the court to make the sentences imposed following revocation consecutive to each other, but rather is the lack of authority given to the court to postpone the term of the sentences to a later date by making them consecutive to an existing prison term.
We conclude that the final clause of the first sentence of sec. 973.10(2), Stats., does not limit the authority of a sentencing court in the manner the defendants on these appeals suggest.
They rely in part upon sec. 990.001(1), Stats., which provides:
The defendants take the position that this means that each of the sentences imposed or ordered into effect after revocation of probation must begin on the date a defendant enters prison. They argue that, accordingly, no sentence imposed or ordered into effect following revocation of probation can be consecutive to another term ordered by the court at the same time.
Although the rule of construction of sec. 990.001(1), Stats., is pertinent, the defendants misapply it. When sec. 973.10(2) provides that a defendant may be brought before the court for "sentence," the clear intent is that the defendant be brought before the court for sentencing on whatever number of counts are involved. Sentence or sentencing, as used in the statute, is a collective expression, which refers to all the sentences a court may impose following revocation. In light of this, the intent of the legislature is advanced by applying the rule of construction of sec. 990.001(1) in respect to sec. 973.10(2) so that it reads, "the term of the sentence(s) shall begin on the date he enters the prison." We construe "sentence" to mean the plural, "sentences."
Under such view, which we...
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