Snajder v. State

Decision Date19 January 1977
Docket NumberNo. 75--462--CR,75--462--CR
Citation246 N.W.2d 665,74 Wis.2d 303
PartiesWalter SNAJDER, Appellant, v. STATE of Wisconsin, Respondent.
CourtWisconsin Supreme Court

Jack E. Schairer (argued), Asst. State Public Defender, with whom on the briefs was Howard B. Eisenberg, State Public Defender, for appellant.

James H. Petersen (argued), Asst. Atty. Gen., with whom on the brief was Bronson C. LaFollette, Atty. Gen., for respondent.

BEILFUSS, Chief Justice.

On November 10, 1969, Walter Snajder, the appellant, was convicted of armed robbery while masked, contrary to secs. 943.32(2) and 946.62, Stats., and sentenced to an indeterminate term not to exceed fifteen years.

He was paroled November 13, 1972. On October 17, 1973, he was assigned to a new parole officer, David L. Sartori. Snajder informed Sartori his residence address was 1121 South 61st Street, West Allis, Wisconsin, where he lived with his mother and stepfather. In January of 1974, Sartori attempted to visit Snajder at that address. Sartori was told by a woman there that Snajder did not live there. However, because of language difficulties, Sartori was not sure she fully understood him. To verify his residence, Sartori sent Snajder a certified letter to the West Allis address and directed Snajder to bring the envelope to his next scheduled appointment. Snajder did bring in the envelope.

Snajder failed to keep his regular March, 1974 appointment. Sartori then directed him to report on March 27. Snajder called to advise that he would report at 3 p.m. He did not keep this appointment. Sartori learned the next day that Snajder had been arrested and was in the county jail.

Snajder was arrested at the home of his fiancee 'at 2609 South 70th Street,' Milwaukee, Wisconsin. When arrested by the police at the South 70th Street address he stated he was Walter Smith, but shortly thereafter gave his right name. He stated he paid the rent, lived there and intended to live there. At the time he was arrested the police found and seized a stolen snowmobile, stereo equipment, a handgun, an outboard motor and other items.

The district attorney did not issue a complaint but Snajder was held in the county jail on a parole hold order.

On April 4, 1974, Sartori visited Snajder at the county jail to interview him. Snajder refused to answer questions unless the hold order was removed or his attorney was present. Sartori had no objection to the presence of an attorney but the attorney could not be located. Sartori insisted on discussing the matter but Snajder refused, stating he was told by his own attorney and the district attorney not to talk about his presence at South 70th Street or the stolen goods unless an attorney was present.

A recommendation that Snajder's parole be revoked was submitted to the department on April 10, 1974. The bases of this recommendation were: (1) The parolee's identification of himself as Walter Smith to the police; (2) the parolee's falsification of his residence in his monthly report; (3) the parolee's refusal to answer questions submitted by his agent; and (4) outstanding warrants on the parolee for eluding and driving after revocation. The first and fourth charges were eventually dropped. At the parole revocation hearing Snajder testified that although he paid part of the rent at his girlfriend's residence he was only staying there part-time and his full-time residence was that which he had reported, and that he was told by his own attorney and the district attorney not to talk about the stolen property.

Snajder's parole was revoked by the department. The revocation order recited (1) he falsified his residence, (2) refused to account for his presence at the South 70th Street address, and (3) refused to account for the stolen property found at that address.

A writ of certiorari was obtained from the circuit court for Milwaukee county to review the department's order of revocation.

The circuit court concluded the evidence in the record was sufficient to support the finding that Snajder falsified his residence to his parole officer in violation of the parole agreement.

As to his refusal to account for his presence at South 70th Street and his refusal to account for the snowmobile, boat, outboard motor stereo equipment and other merchandise, the trial court concluded the evidence was 'totally insufficient to adequately review the propriety of the Department's decision.'

The court reasoned that Snajder was advised by his own attorney and the district attorney not to discuss his presence or give any information about the supposedly stolen property; that this put Snajder in the position of either disobeying his parole agent or the district attorney, both arms of the state; and that the record was barren with respect to the nature of the district attorney's investigation and admonitions given Snajder.

The circuit court remanded the record to the department with directions to state the relative weight each 'allegation' is to have if Snajder's parole is to be revoked. The order of remand also directed that additional evidence be taken on the two questioned reasons for revocation and that if no additional evidence was presented the department rule as to whether the single finding of falsifying his residence was sufficient.

Two issues are presented:

(1) Is the order remanding the record to the department appealable?

(2) If so, in certiorari can the court order further findings and conclusions and the taking of additional evidence?

Shortly after the remand order was issued Snajder petitioned this court for writs of prohibition to prohibit the remand and mandamus to direct the circuit court to decide the issue on the record that had been certified to it. Both petitions were denied, primarily upon the ground Snajder had an adequate remedy by appeal.

The state now takes the position the order is not appealable because it does not terminate the controversy and that if the final disposition is adverse to Snajder he then has a right to appeal.

Sec. 274.33(3), Stats., authorizes an appeal '. . . when an order . . . grants, refuses, continues, modifies, or dissolves a provisional remedy . . ..'

The statute does not define 'provisional remedy,' but in discussing it this court stated:

'The remedy, therefore, is affirmative relief given when the exigencies of the case require it, and it is a remedy outside of and beyond those ordinary proceedings in an action which relate merely to matters of practice and procedure, or which rest entirely in the discretion of the court.' Noonan v. Orton, 28 Wis. 386, 387 (1871).

It is apparent the circuit court believed the exigency of the case required a remand to the department. The remand was beyond the ordinary scope of certiorari review. It was ordered because the circuit court was of the opinion the record was inadequate for a proper review. It was a provisional remedy requiring the department and the parties to further action in the parole revocation hearing. The question is whether the circuit court's order was beyond its jurisdiction in a certiorari review. The order called for provisional remedy and is appealable.

Review of a parole revocation hearing is by certiorari directed to the court of conviction. State ex rel. Johnson v. Cady, 50 Wis.2d 540, 550, 185 N.W.2d 306, 311 (1971). Review by certiorari is limited to the following questions:

'(1) Whether the board kept within its jurisdiction; (2) whether it acted according to law; (3) whether its action was arbitrary, oppressive, or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that it might reasonably make the order or determination in question. 1

Upon review the court was traditionally bound to either affirm or reverse. 2

In State ex rel. Momon v. Milwaukee County Civil Service Comm., 61 Wis.2d 313, 212 N.W.2d 158 (1973), this court expanded the options of the certiorari review. In Momon, a hospital employee had been discharged by the civil service commission for violation of three commission rules. The Milwaukee county circuit court, on certiorari review, held that the findings concerning two rules were correct, but that there was 'no evidence whatsoever' to support the finding concerning the violation of the third rule. The circuit court believed that because of the nature of the certiorari proceeding it was bound to either reject the decision of the commission in toto or accept it as it was. The circuit court held that it could not approve the decision because to do so would permit the commission to exceed its jurisdiction by imposing a penalty in part upon the hospital employee for violating a rule which had not been substantiated by any evidence. The court set aside the suspension, thereby vacating the entire commission ruling. On appeal, this court, citing Meehan v. Macy, 129 U.S.App.D.C. 217, 392 F.2d 822, 839 (1968), held that the circuit court was not bound to an either-or proposition. Momon, supra 61 Wis.2d at 319--21, 212 N.W.2d 158.

After agreeing with the circuit court that there was no evidence to support a finding of a violation of a third civil service rule, we remanded to the circit court with instructions to remand to the civil service commission to determine whether the same or different penalty was appropriate where the violation of two rules, not three, had been established.

In this case the circuit court concluded the evidence was sufficient to support the department's finding that Snajder violated his parole agreement by falsifying his actual residence. It further concluded the evidence was sufficient to support the finding that Snajder refused to answer questions by his parole officer concerning his presence at his fiancee's residence and the stolen property. The department's order of revocation was based in part upon these two refusals to answer. The circuit court believed these refusals may have been...

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