State ex rel. Currie v. McCready Assistant Superintendent of State Reformatory
| Decision Date | 12 June 1941 |
| Citation | 297 N.W. 771,238 Wis. 142 |
| Parties | STATE ex rel. CURRIE v. McCREADY Assistant Superintendent of State Reformatory. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Habeas corpus proceedings instituted in this court upon leave granted upon a petition filed for such leave (as prescribed in Re Exercise of Original Jurisdiction, 201 Wis. 123, 229 N.W. 643) and the issuance of a writ of habeas corpus on behalf of William Currie to test the legality of his imprisonment in the Wisconsin State Reformatory.
Lucius A. Squire and M. M. Morrissey, both of Madison, for petitioner.
John E. Martin, Atty. Gen., and Wm. A. Platz, Asst. Atty. Gen., for respondent.
The following matters appear from the petition for writ of habeas corpus and the return filed thereto by C. W. McCready, assistant superintendent of the State Reformatory. William Currie, who was nineteen years of age on March 17, 1937, was duly convicted on that date in the Superior Court of Dane County and applied in writing to the court “(a) for Suspension of Sentence or (b) for a stay of Execution of Sentence Imposed”. Thereupon the court entered judgment which, after reciting that Currie had made due application for suspension of sentence and that he be placed on probation “pursuant to the provisions of Section 57.01 of the statutes”, provided that the court sentenced him for a term of one to three years in the State Reformatory, and suspended the sentence and placed him on probation to the state board of control for that term. Upon his violation of the conditions of his probation, the board of control on July 12, 1938, ordered the termination of his period of probation and that he be conveyed to the State Reformatory to serve the sentence imposed upon him by the court. Pursuant to this order Currie was imprisoned in the State Reformatory on July 22, 1938. On December 11, 1939, he was released on parole which was revoked on September 24, 1940, by the department of public welfare, and it then ordered that he be returned to the State Reformatory and kept there until discharged by due process of law. According to the reformatory's records, Currie's term of sentence was considered to have commenced on July 22, 1938, and on the basis of his present good-time status he will be discharged May 9, 1941.
[1] Currie claims that his imprisonment and detention subsequent to July 22, 1938, and more particularly since March 17, 1940, in the reformatory and on parole, is without the due process of law and contrary to Art. I, Sec. 8, Wis.Const., and the 14th Amend., Sec. 1, U.S.Const., in that his imprisonment was not by virtue of the final order or judgment of any competent tribunal of civil or criminal jurisdiction or an execution issued upon such an order or judgment; and that his imprisonment is solely by virtue of orders made under the alleged authority of secs. 57.01, 57.03 or 57.05, Stats., by the state board of control and the department of public welfare, neither of which is a competent tribunal having jurisdiction to issue an order of imprisonment or detention against Currie. In support of these claims it is contended that because he was a minor when convicted on March 17, 1937, there was applicable to him on his application to be placed on probation the provision in sec. 57.05(1), Stats., that-“the court in its discretion may suspend sentence and place such minor under the guidance and control of the state board of control as in the case of an adult”; and that under this provision the court was not authorized to impose sentence and then stay the execution thereof. It is claimed in this connection that there is a material difference between the authorization under the terms in the provision in sec. 57.05(1), Stats., which are that “the court *** may suspend sentence and place such minor” on probation, and the authorization in relation to adults under the terms in the provision in sec. 57.01(1), Stats., which are that the “court may *** suspend the judgment or stay the execution thereof” and place the defendant on probation. These contentions cannot be sustained.
The term “suspend sentence” implies that there has been imposed a sentence as to which there can then be a suspension by the court of the sentence imposed. There is obviously no occasion to suspend sentence unless and until there is in effect and operative a sentence which has been imposed....
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...Searcy, 199 Ark. 585, 135 S.W.2d 319 (1940); Sunny Brook Farms v. Omdahl, 42 Wash.2d 788, 259 P.2d 383 (1953); State ex rel. Currie v. McCready, 238 Wis. 142, 297 N.W. 771 (1941). The juvenile code makes no provision for granting a rehearing. However, when a cause is pending before the cour......
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...Servonitz v. State (1907), 133 Wis. 231, 113 N.W. 277; Arnold v. Schmidt (1913), 155 Wis. 55, 143 N.W. 1055; State ex rel. Currie v. McCready (1941), 238 Wis. 142, 297 N.W. 771; State ex rel. Drankovich v. Murphy (1946), 248 Wis. 433, 22 N.W.2d 540; State ex rel. Wenzlaff v. Burke (1947), 2......
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