State ex rel. Flowers v. Department of Health and Social Services

• Decision Date: 03 January 1978
• Docket Number: No. 75-501,75-501
• Citation: 81 Wis.2d 376,260 N.W.2d 727
• Parties: STATE ex rel. Hugh Edward FLOWERS, Appellant, v. DEPARTMENT OF HEALTH AND SOCIAL SERVICES, State of Wisconsin, Respondent.
• Court: Wisconsin Supreme Court

Page 727

260 N.W.2d 727

81 Wis.2d 376

STATE ex rel. Hugh Edward FLOWERS, Appellant, v. DEPARTMENT OF HEALTH AND SOCIAL SERVICES, State of Wisconsin, Respondent.

No. 75-501.

Supreme Court of Wisconsin.

Argued Nov. 1, 1977.

Decided Jan. 3, 1978.

Hugh Edward Flowers, defendant-appellant, was convicted of a felony, sentenced and subsequently paroled. His parole was revoked by the Department of Health & Social Services, respondent. Flowers petitioned the circuit court for a writ of certiorari to review his revocation of parole. He now appeals from an order denying his petition and upholding the revocation of his parole.

Howard B. Eisenberg, State Public Defender, and Ronald L. Brandt, Deputy State Public Defender (argued), on brief, for appellant.

James H. Petersen, Asst. Atty. Gen., with whom on the brief was Bronson C. La Follette, Atty. Gen., for respondent.

CONNOR T. HANSEN, Justice.

This case presents the question whether conduct of a parolee arising out of an incident for which he was criminally charged and acquitted may constitute one of the grounds for parole revocation. The case also raises questions with respect to the scope and nature of preliminary revocation hearings, the adequacy of notice, the need for a speedy hearing, and the sufficiency of the evidence.

Flowers was convicted of indecent behavior with a child, contrary to sec. 944.11(2), Stats., in 1967, and sentenced to an indeterminate term not to exceed ten years. He was paroled in 1971. His parole was revoked in 1974 by the Department of Health & Social Services (hereinafter Department) after a three-day hearing. He was alleged to have violated his parole in five instances. ¹ The hearing examiner found that each of the allegations was established by a preponderance of the evidence, and the Department adopted his findings.

The first and second grounds for revocation concerned an altercation which occurred on June 9, 1972. On that date Flowers admittedly battered one Confessor Ortiz, allegedly because Ortiz, attempted to molest Flowers' wife. Witnesses testified that Flowers had a gun at the time.

The third and fourth grounds for revocation relate to a barroom shooting. Flowers took a loaded rifle into Big Jimmy Green's Tap in Milwaukee. The rifle discharged, and a man was injured. At a preliminary revocation hearing, evidence was introduced that Flowers had permission from his parole agent to possess a firearm for hunting; that he was attempting to sell the rifle; and that it discharged accidentally. Apparently, on the basis of this information, the examiner at the preliminary hearing determined that there was no probable cause to believe Flowers had violated his parole agreement when he took the loaded rifle into the tavern. However, at his subsequent parole revocation hearing, the allegation of improper possession of a firearm was set forth as the third grounds for revocation. The fourth charge of reckless use of a firearm was also considered at his revocation hearing, although it was not specifically considered at his preliminary revocation hearing.

Finally, the revocation was also based on the charge that Flowers absconded from supervision. The record shows that in August, 1972, shortly before a scheduled preliminary hearing on parole revocation, Flowers left the state. He was located and arrested in St. Paul, Minnesota. He resisted return to Wisconsin, and while released on bond in Minnesota, went to Winnipeg, Manitoba. Later, after detention by Canadian authorities, he was released to officials of the State of Washington. In October of 1973, he was returned to Wisconsin. Flowers maintains there was insufficient evidence to establish that he absconded.

On certiorari review the circuit judge found that reinstatement of the charge relating to possession of a loaded rifle in Big Jimmy Green's Tap, after the examiner who conducted preliminary revocation hearing had found no probable cause, was arbitrary and capricious. This charge was ordered dismissed. In all other respects the petition for a writ of certiorari was denied and the revocation upheld.

Additional facts will be set forth in our consideration of the issues, which are:

1. Does the acquittal of a crime preclude the consideration of conduct related to the alleged criminal incident at a parole revocation hearing?

2. May parole be revoked on the basis of charges as to which no determination of probable cause has been made at a preliminary hearing?

3. May the Department proceed to a revocation hearing on a charge after a determination has been made at a preliminary hearing that there was not probable cause to support the charge?

4. Was the appellant afforded adequate notice of the parole revocation hearing and the grounds alleged for revocation?

5. Was the appellant denied a speedy hearing?

6. Does the evidence support the determination that the appellant absconded?

I.

Flowers contends that reliance, by the Department, on conduct relating to an incident for which he was prosecuted and acquitted subjects him to impermissible double jeopardy. Therefore, he argues, such conduct cannot be used to establish grounds for parole revocation.

This argument is directed to the first two charges concerning the battery of Confessor Ortiz.

As a result of this incident, Flowers was charged with reckless use of a weapon, contrary to sec. 941.20(1)(c), Stats., and with battery, contrary to sec. 940.20. In July of 1972, the first charge was dismissed for lack of evidence. Flowers was acquitted by a jury of the second charge.

Jeopardy, in the constitutional sense, denotes the risk traditionally associated with criminal prosecution and with proceedings to invoke criminal punishment for the vindication of public justice. This risk is absent from proceedings which are not " 'essentially criminal.' " Breed v. Jones, 421 U.S. 519, 528, 529, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975).

The essential nature of a proceeding is not determined by its form or label, however; United States v. U. S. Coin & Currency, 401 U.S. 715, 718, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1970). A proceeding is criminal, for double jeopardy purposes, if it imposes a sanction intended as punishment. See: Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 82 L.Ed. 917 (1938). It is therefore necessary to determine whether the revocation of parole is properly characterized as a punitive sanction, in light of the purposes of the double jeopardy clause, the nature of the individual interests at stake, and the character of the parole revocation decision.

Under the double jeopardy clause, a verdict of acquittal is final, ending a defendant's jeopardy, so that he may not thereafter be subjected to criminal sanctions for the same offense. This rule reflects the deeply ingrained idea that repeated attempts at punishment would unfairly subject him to embarrassment, expense and ordeal, would put him in a continuing state of anxiety and insecurity, and would enhance the possibility that even though innocent he may be found guilty. Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957).

In Morrissey v. Brewer, 408 U.S. 471, 479, 92 S.Ct. 2593, 2599, 33 L.Ed.2d 484 (1972), the United States Supreme Court recognized that revocation "is often preferred to a new prosecution because of the procedural ease of recommitting the individual on the basis of a lesser showing by the State." This does not mean, however, that a revocation hearing is a part of a criminal prosecution. It clearly is not, nor does it require all the procedural components associated with an adversary criminal proceeding. Morrissey v. Brewer, supra, at 480, 92 S.Ct. 2593; State ex rel. Struzik v. H&SS Dept., 77 Wis.2d 216, 220, 221, 252 N.W.2d 660 (1977); State ex rel. Hanson & H&SS Dept., 64 Wis.2d 367, 378, 379, 219 N.W.2d 267 (1974). Rather, it has been repeatedly emphasized that:

". . . there are critical differences between criminal trials and probation or parole revocation hearings, and both society and the probationer or parolee have stakes in preserving these differences . . . ." State ex rel. Struzik v. H&SS Dept., supra, 77 Wis.2d at 220, 252 N.W.2d at 661, quoting Gagnon v. Scarpelli, 411 U.S. 778, 788, 789, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

Thus revocation does not require a judicial hearing, Morrissey, supra, 408 U.S. at 486, 92 S.Ct. 2593; the rules of evidence need not be strictly adhered to, Morrissey, supra, at 489, 92 S.Ct. 2593; and the privilege against self-incrimination does not prevent consideration of inculpatory statements or a parolee's refusal to answer questions. State ex rel. Struzik, supra; State v. Evans, 77 Wis.2d 225, 252 N.W.2d 664 (1977). These distinctions reflect substantial differences between the interests involved in parole revocation and those in a criminal prosecution.

Revocation hearings are not concerned with retribution. Parole and probation are intended to foster the reintegration of the individual into society at the earliest opportunity. Gagnon v. Scarpelli, supra, 411 U.S. at 783, 93 S.Ct. 1756. The ultimate question in revocation proceedings is whether the parolee remains a "good risk"; whether his rehabilitation can be successfully achieved outside prison walls or will be furthered by returning him to a closed society. State ex rel. Plotkin v. H&SS Department 63 Wis.2d 535, 543, 545, 217 N.W.2d 641 (1974); State ex rel. Johnson v. Cady, 50 Wis.2d 540, 549, 185 N.W.2d 306 (1971).

In making this determination, the Department is concerned not only with threats to the safety of the general community, but also with any behavior inimical to the parolee's rehabilitation. See: Morrissey, supra, 408 U.S. at 478, 92 S.Ct. 2593; Gagnon v. Scarpelli, supra, 411 U.S. at 783, 93 S.Ct. 1756. For this reason, parole may be revoked for conduct which does not violate the criminal law. Morrissey, supra, 408 U.S. at 478, 92 S.Ct. 2593; State v. Evans, supra, 77 Wis.2d at 234, 252 N.W.2d 664.

The...