State ex rel. Cox v. State, Dept. of Health and Social Services

• Decision Date: 27 October 1981
• Docket Number: No. 80-2363,80-2363
• Citation: 105 Wis.2d 378,314 N.W.2d 148
• Court: Wisconsin Court of Appeals
• Parties: STATE ex rel. Monte C. COX, Plaintiff-Appellant, v. STATE of Wisconsin, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Defendant- Respondent.

Page 148

314 N.W.2d 148

105 Wis.2d 378

STATE ex rel. Monte C. COX, Plaintiff-Appellant, v. STATE of Wisconsin, DEPARTMENT OF HEALTH AND SOCIAL

SERVICES, Defendant- Respondent.

No. 80-2363.

Court of Appeals of Wisconsin.

Submitted on Briefs Sept. 8, 1981.

Opinion Released October 27, 1981.

Opinion Filed October 27, 1981.

[105 Wis.2d 379] Trygve J. Inderberg, Neillsville, for plaintiff-appellant.

Bronson C. La Follette, Atty. Gen., and Jonathan P. Siner, Asst. Atty. Gen., for defendant-respondent.

Before FOLEY, P. J., and DEAN and CANE, JJ.

FOLEY, Presiding Judge.

Monte Cox appeals from an order denying his petition for a writ of certiorari seeking review of the Department of Health and Social Services' decision revoking his probation. ¹ He claims that the Department did not have jurisdiction to revoke his probation and that the evidence for revocation was insufficient. Because we conclude that the Department had jurisdiction to revoke Cox's probation and that there was sufficient evidence presented at the revocation hearing to support the revocation, we affirm.

On May 3, 1979, Cox was convicted of intentionally delivering a controlled substance and sentenced to an indeterminate term of imprisonment not to exceed two years. The court stayed Cox's sentence and placed him on probation for one year with the condition that he refrain from the use of or contact with drugs. On April 29, 1980, the Department issued a probation violation warrant alleging that Cox had participated in the possession, use, distribution, and sale of illegal drugs, contrary to the conditions of his probation. ² Cox was taken into custody on May 2, 1980, and, after a final revocation hearing held a few weeks later, the Department ordered that his probation be revoked.

Our review of the Department's revocation decision is limited to whether the Department kept within its jurisdiction and acted according to law; whether its action was arbitrary, oppressive, or unreasonable and represented its will and not its judgment; and whether the evidence was such that the Department might reasonably make the order or determination in question. State ex rel. Foshey v. Wisconsin Department of Health & Social Services, 102 Wis.2d 505, 513, 307 N.W.2d 315, 318 (Ct.App.1981).

JURISDICTIONAL ISSUES

We conclude that the issuance of a warrant during the probationary term tolls the running of the term. ³ This conclusion is consistent with federal cases that hold that warrants issued during probation periods preserve revocation jurisdiction even if they are not actually executed until after the expiration of such periods. See United States v. Cox, 475 F.2d 837, 839 (9th Cir. 1973); Toomey v. Young, 442 F.Supp. 387, 389 (D.Conn.1977). Our conclusion is also consistent with the legislative intent expressed in statutes of limitations applicable to criminal prosecutions, which are tolled with the issuance of a warrant or summons. Section 939.74(1), Stats. To hold that the statute of limitation is tolled only at the We also conclude that the warrant was not defective even though it was issued without a written request. Cox cites no authority holding that probation violation warrants are invalid if they are not based on a written request. The cases that have addressed this issue instead hold that administrative warrants, unlike judicial warrants, need not be supported by affidavits establishing probable cause. See United States ex rel. Randazzo v. Follette, 418 F.2d 1319, 1322 (2d Cir. 1969); Davenport v. State, 568 P.2d 939, 947 (Alaska 1977); People ex rel. Jefferson v. Brantley, 44 Ill.2d 31, 253 N.E.2d 378, 380 (1969). This result is consistent with the recognition that the liberty interests of probationers, who are in the constructive custody of the Department, differ from the interests of those who stand accused of a crime. See State ex rel. Flowers v. Department of Health & Social Services, 81 Wis.2d 376, 385-86, 260 N.W.2d 727, 733 (1978).

time an offender is taken into custody would allow an offender to evade all sanctions simply by evading apprehension. To require custody to toll the probation period would effectively deprive the Department of any control over a probationer during the last months of the probationary term. Cf. State ex rel. Avery v. Percy, 99 Wis.2d 459, 463, 299 N.W.2d 886, 889 (Ct.App.1980) (concept applied to revocation hearing held after parole period expired).

In response to Cox's final jurisdictional argument, we conclude that the revocation proceedings were not defective because they were instituted prior to the filing of criminal charges for the same incidents upon which revocation proceedings were based. As recognized in Flowers, probation may be revoked for conduct that in itself does not violate the criminal law. Flowers, 81 Wis.2d at 385, 260 N.W.2d at 733. Cox's acts in violation of the conditions of his probation were sufficient grounds for the initiation of revocation proceedings. There are sound reasons for not delaying revocation proceedings until criminal charges have been filed. See 65 Op.Att'y Gen. 20 (1976).

EVIDENTIARY ISSUES

During the final revocation hearing, Cox's probation agent, Sonja Bjork, testified as to the procedures she followed in initiating revocation proceedings. Bjork also called and examined witnesses to Cox's rule violations. Cox contends that because Bjork assumed the role of a witness and an advocate, her testimony should be accorded little weight. Cox also contends that the witnesses to the rule violations were, as a matter of law, incompetent to testify, and that their testimony, when considered along with Bjork's, provided no basis upon which the Department could reach a reasoned decision.

In considering whether there was sufficient evidence for the Department's decision, this court is not empowered to weigh the evidence and conduct a de novo review. Instead, we are limited to ascertaining whether substantial evidence exists in support of the Department's decision. So long as the Department acts upon a rational basis and the action represents its judgment and not its will, the agency's decision must be upheld. Van Ermen v. Department of Health & Social Services, 84 Wis.2d 57, 64-65, 267 N.W.2d 17, 20-21 (1978).

We conclude that there is substantial evidence in the record to support the Department's decision. Bjork's testimony consisted only of a summary of the procedures she followed in instituting revocation proceedings. Her testimony had no relevance to the issue to be decided at the hearing; that is, whether Cox violated the rules of his probation. Because Bjork's testimony was irrelevant to that issue, it may be fairly assumed that the Department relied on the...