State ex rel. Avery v. Percy, 79-1909

• Decision Date: 27 October 1980
• Docket Number: No. 79-1909,79-1909
• Parties: STATE ex rel. Barbara AVERY, Petitioner-Respondent, v. Donald PERCY, Secretary of Wisconsin Department of Health and Social Services, Nona Switala, Superintendent of Taycheedah Correctional Institute, Appellants.
• Court: Wisconsin Court of Appeals

Page 886

299 N.W.2d 886

99 Wis.2d 459

STATE ex rel. Barbara AVERY, Petitioner-Respondent, v. Donald PERCY, Secretary of Wisconsin Department of Health and Social Services, Nona Switala, Superintendent of Taycheedah Correctional Institute, Appellants.

No. 79-1909.

Court of Appeals of Wisconsin.

Argued Aug. 6, 1980.

Opinion Released Oct. 27, 1980.

Opinion Filed Oct. 27, 1980.

Dorothy H. Dey, Asst. Atty. Gen., argued for appellants; Bronson C. La Follette, Atty. Gen., on brief.

Jimmie G. Davison, Milwaukee, for petitioner-respondent.

Before VOSS, P. J., and BROWN and SCOTT, JJ.

VOSS, Presiding Judge.

This is an appeal from an order based upon a habeas corpus petition filed on behalf of Barbara Avery ordering her release from the custody of the State. The sole issue presented is whether the Department of Health and Social Services may revoke a parolee's conditional release when, although both the parole violation and the initiation of formal revocation procedures occurred prior to the parole expiration date, the final revocation hearing was not held until after the parolee's parole period had expired. We find such a revocation procedure to be proper and, therefore, reverse the trial court.

On November 15, 1974, Barbara Avery was sentenced to serve four years at the Wisconsin Correctional Center for Women. Ms. Avery was paroled on December 23, 1976. Her parole period was scheduled to terminate on November 15, 1978. On September 20, 1978, a criminal complaint was issued charging Ms. Avery with shoplifting.

Probable cause to revoke Avery's parole was found at a preliminary probable cause hearing held October 18, 1978. A final revocation hearing was scheduled for December 18, 1978. Due to unexplained delay, however, a final revocation hearing was not held until March 14, 1979. At that hearing, the examiner revoked Avery's parole and ordered that one-hundred percent of her "good time"-time she served on parole prior to the issuance of the criminal complaint-be forfeited.

Upon a petition for and the issuance of a writ of habeas corpus, a hearing was held on October 26, 1979. At that hearing, the trial court found that the case of Locklear v. State, 87 Wis.2d 392, 274 N.W.2d 898 (Ct.App.1978), barred the revocation of Avery's parole since the final revocation hearing was not held prior to the termination of Avery's original parole period. ¹ The trial court reasoned that under sec. 57.072, Stats., ² the mere initiation of parole revocation proceedings failed to effectively toll the running of Avery's parole period. We are of the opinion that the trial court, in reaching its conclusion, misinterpreted our holding in the Locklear case.

In Locklear v. State, ³ probation revocation proceedings were filed against Locklear approximately one year after his probation period had expired. As a result of the suspected probation violation and solely upon the basis of a hearing on the issue of probable cause to revoke, it was determined that Locklear's probation period should be extended for an additional fifteen months. Just prior to the expiration of Locklear's extended fifteen-month probation period, the circuit court for Kenosha county extended his probation for another year as a result of his failure to meet his court ordered obligation of making restitution. A year later, the same court ordered an extension of probation for another year or until Locklear met his restitution requirement. No final probation revocation hearing was ever held.

Upon review of the probation extensions, this court held that under sec. 57.072, Stats. (1975), ⁴ Locklear's probation could not be revoked or extended, effectively denying him credit for time served on probation after the date of the alleged violation, without first determining that he violated his probation in a final revocation hearing. In reaching this conclusion, we clarified our position by stating that:

While under ordinary circumstances our decision would not necessarily preclude the department from now holding a final hearing and reinstating a probationer's probation, in this case, the department is precluded from proceeding any further against Locklear. (Emphasis added.) Id. at 405, 274 N.W.2d at 904.

Subsequent portions of the opinion made it clear that the reason the department was precluded from proceeding further against Locklear was the prejudicial delay of two and one-half years which would have existed if attempts had been made at that time to bring about a final revocation hearing.

This court in Locklear did not hold that both the preliminary and final revocation hearings had to be held prior to the expiration of the parole or probation period in order to effectively revoke an offender's conditional release. In Locklear, we held that a probationer's probation could not be revoked without the proper due process procedures of a timely final revocation hearing. We further held that a delay of two and one-half years is not timely, and, therefore, in Locklear's case, the department was barred from holding the required revocation hearing.

In this case, the trial court erred when, upon the basis of the Locklear holding, it reversed Avery's revocation of parole on the ground that the Department failed to hold both the preliminary and final revocation hearings prior to the parole period's expiration date. Section 57.072, Stats., does not demand that a final revocation hearing be held prior to the expiration of the parole period in order to enable the Department to effect revocation. In order to effectuate the purpose of probation and parole, and at the same time protect society from further jeopardy, this result must be possible. Without it, the last remaining months of a conditional release term would in reality be an unconditional release since an adequate and timely revocation procedure would perhaps not be expeditious enough to meet the deadline posed by the expiration of the conditional release period. If the trial court's decision were to prevail, a probation of parole violation taking place during the last few weeks of a conditional release period would have to be ignored since it would be unlikely that a final revocation hearing could be held prior to the expiration of the release period.

Because this case does not present the question of whether revocation proceedings must be initiated prior to the expiration of a parole or probation period in order to revoke a conditional release under sec. 57.072, Stats., we do not deal with that issue. We are also not deciding the constitutionality of the filing of a violation report after the parole or probationary term has expired.

Avery raises two issues upon which this court feels compelled to comment. On remand, we believe the trial court should confront and resolve the controversy they present.

First, Avery argued at trial and again on appeal that the revocation hearing examiner erred in disallowing all of the time served on parole from the date of her conditional release to the date of the alleged violation. The hearing examiner's order states that "one hundred percent of the Good Time be forfeited which includes all Street Time." Avery's counsel contended at oral argument that she is entitled to credit for all successful time spent on the street from the date of conditional release from prison until the date of violation. Therefore, she concludes that the hearing examiner cannot by law order forfeiture of all "Street Time."

Avery's argument requires an explanation of the difference between time spent on the street by a discretionary parolee and time spent on the street by a mandatory release parolee. We start with the law that upon conviction and incarceration, the offender is automatically given good time credits pursuant to sec. 53.11(1), Stats. This is called statutory good time and must be given upon entrance to the prison. However, it may be taken away by the Department, in its discretion, for violations of Department rules. An offender may also be awarded credit for "diligence in labor or study" under sec. 53.12, Stats.,...