State ex rel. Copas v. Burke
Decision Date | 15 September 1965 |
Citation | 28 Wis.2d 188,136 N.W.2d 778 |
Parties | STATE ex rel. Robert D. COPAS, Petitioner, v. John C. BURKE, Warden, Wisconsin State Prison, Respondent. |
Court | Wisconsin Supreme Court |
William L. McCusker, Madison, for petitioner.
Bronson C. La Follette, Atty. Gen., William A. Platz, Asst. Atty. Gen., Madison, for respondent.
Petitioner was found guilty by a jury in the circuit court for Dane county on February 7, 1963, of violating sec. 944.17(1) [sexual perversion], sec. 944.11(2) [ ], and sec. 947.15(1)(a) [ ], Wis.Stats. Because of his conviction under sec. 944.11, the trial court as required by sec. 959.15(1) temporarily committed the petitioner to the state department of public welfare for a presentence social, physical and mental examination. The report of the department recommended the petitioner was in need of specialized treatment for his mental aberrations and the case should be disposed of under sec. 959.15(6). 1 Upon receiving this report, the trial court appointed two private psychiatrists to examine the petitioner and report to the court. From the reports of these psychiatrists the trial court was satisfied the petitioner was not dangerous to the public and some inprovement could be expected if given an opportunity for psychiatric help privately. The court stated it realized crowded conditions existed at the sex deviate center at the state prison and the petitioner might very likely not be helped there under such conditions.
On May 7, 1963, the trial court placed the petitioner on probation on the condition he receive outpatient treatment for his mental and physical aberrations from one of the psychiatrists at his own expense. However, before placing the petitioner on probation and at the insistence of the assistant district attorney the trial court sentenced petitioner to the state prison at Waupun for two concurrent terms of four years each on the two felony counts and to the Dane county jail for one concurrent term of one year on the misdemeanor count and stayed the execution of the sentences.
On October 3, 1963, the petitioner was brought back to court because of an alleged violation of his probation. After a hearing the court found the petitioner violated his probation by lack of co-operation with his psychiatrist and by attempting a sex crime. Probation was revoked and the petitioner was committed to the custody of the state department of public welfare for treatment at its sex deviate treatment facility at the state prison at Waupun pursuant to sec. 959.15(6), Wis.Stats. There is some inconsistency in the facts at this point. At this hearing the court stated it withheld sentencing when it placed the petitioner on probation, and the order of October 3, 1963, so recites. However, the transcript of the hearing of May 7, 1963, clearly shows the petitioner was sentenced to Waupun and to the county jail and execution stayed.
The petitioner claims that since on May 7th he was sentenced to prison for the two felonies and then placed on probation he could not validly be committed to the state department of public welfare at its sex deviate facility upon revocation of his probation but should have been taken directly to prison to serve his sentence. This argument assumes the sentencing of May 7, 1963, to prison for the conviction of the felonies and the staying the sentences was within the jurisdiction of the court. We believe this is an erroneous assumption. The trial court, upon receiving the state department of public welfare's report of its presentence social, physical and mental examination recommending specialized treatment for the petitioner, was without power to sentence him to prison on a punitive basis as it would under sec. 959.15(5) if no specialized treatment had been recommended.
The sexual deviate act was created by ch. 542, sec. 2, of the Laws of 1951, and replaced the unworkable sexual psychopath law of 1947. The purpose of the act is to protect society from dangerous sex crimes and to provide treatment for the dangerous sex offenders. The act does not apply to all persons committing a sex offense. In the case of offenders whose conduct involved use of force or sex practices with children a commitment to the state department for a presentence examination is mandatory. Sec. 959.15, Ststs. In other cases involving sex crimes, such examination is discretionary with the court. A conviction of a sex crime is necessary to come within the purview of the act. Wood v. Hansen (1954), 268 Wis. 165, 66 N.W.2d 722. For an analysis of the act and its purpose, see note, Criminal Law, Wisonsin Sexual Deviate Act, Wis.Law Review (1954) 324.
Originally the act provided in sec. 340.485, (6) now sec. 959.15(6), that if the state department of public welfare recommended specialized treatment in its presentence report, the court was required either to place the convicted person on probation with a condition he receive outpatient treatment in such manner as the court prescribed or commit him to the department for treatment. In State v. Sutter (1958), 5 Wis.2d 192, 92 N.W.2d 229, this court pointed out that when the department of public welfare makes its presentence report of its social, physical and mental examination the court's authority in dealing with the defendant depends upon whether or not the department recommends specialized treatment for him. This provision was held constitutional in State ex rel. Volden v. Haas (1953), 264 Wis. 127, 58 N.W.2d 577 wherein the...
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...state department of public welfare. He could not have been sentenced to penal punishment; that was settled in State ex rel. Copas v. Burke (1965), 28 Wis.2d 188, 136 N.W.2d 778. Under the statute, the trial court was given no authority to decide whether Huebner was a sex deviate and needed ......
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