State ex rel. Rodriguez v. Department of Health and Social Services
| Decision Date | 09 July 1986 |
| Docket Number | No. 85-1976,85-1976 |
| Citation | 133 Wis.2d 47,393 N.W.2d 105 |
| Parties | STATE of Wisconsin ex rel. Alejandro RODRIGUEZ, Petitioner-Respondent, v. DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Respondent-Appellant. |
| Court | Wisconsin Court of Appeals |
Bronson C. La Follette, Atty. Gen. and Christopher G. Wren, Asst. Atty. Gen., for respondent-appellant.
Ellen Pearlman, Asst. State Public Defender, for petitioner-respondent.
Before SCOTT, C.J., BROWN, P.J., and NETTESHEIM, J.
This is an appeal from a circuit court's certiorari review of a probation revocation decision. The circuit court granted Alejandro Rodriguez's petition, holding that the Department of Health and Social Services had no jurisdiction to revoke because: (1) the agent erroneously informed Rodriguez that he had been released from probation, and (2) Rodriguez never signed any rules of probation so as to violate them.
We reverse because when Rodriguez was initially sentenced, the trial court decreed that the probation be served consecutive to the prison sentence. It transferred custody to the department, which custody cannot be abrogated absent a written discharge certificate. There never was a written discharge. We also observe that even though Rodriguez never signed a probation agreement, he violated a state criminal statute. We hold that probation can be revoked for this reason even absent a written probation agreement.
Rodriguez was convicted of child abuse and battery on April 22, 1981. He was sentenced to four years in prison concurrent with an unrelated sentence. Additionally, the court imposed two years of probation consecutive to the prison term. The court then stayed the prison sentence. Rodriguez served the time on the unrelated charge, after which he was to begin his two years on probation. Pursuant to the court's order, the probation would have begun on April 6, 1985, the date he completed his parole time in the unrelated case.
In March of 1985, probation and parole agent Philip Trimmel told Rodriguez that he would be discharged from supervision on April 6, 1985. The agent was unaware of the court-ordered probation term due to commence on expiration of the previous sentence.
On April 30, 1985, Rodriguez went to the apartment of Alice Gonzales, struck her with his hand and kicked her several times. She sustained a black eye and a cut over her left eye. She was hospitalized and seven sutures were required to close the cut.
On May 20, 1985, agent Trimmel discovered his mistake. He contacted Rodriguez on May 21, informed Rodriguez that he was still on probation and ordered Rodriguez to report to the parole and probation office that afternoon. He failed to report as directed. Trimmel then sent Rodriguez a certified letter directing Rodriguez to report to the office on May 28. Rodriguez did not report as directed.
On May 30, 1985, in violation of the rules of probation, Rodriguez gave a false name to a police officer.
The department commenced revocation proceedings, alleging, inter alia, that Rodriguez committed a battery upon Alice Gonzales, failed to report when directed and gave an incorrect name to police officers. Rodriguez's attorney argued during the hearing that at the time of the alleged violations Rodriguez had already been discharged from supervision. Also, because Rodriguez did not know that he was under supervision after April 6, 1985, the attorney concluded that it would be unfair to require him to follow the rules of supervision after that date.
The hearing examiner ruled that the sentencing court clearly explained to Rodriguez the sentence structure. The court told Rodriguez, The examiner therefore found that Rodriguez knew he was on probation supervision beginning April 6, 1985.
The examiner also determined that Rodriguez was aware of his responsibilities on supervision from his previous supervision on parole and that he was not relieved of these responsibilities merely because the agent was unaware of the commencement of the probation term.
On September 5, 1985, the trial court granted Rodriguez's petition for certiorari and reversed the revocation. The trial court concluded that, although erroneous, the probation agent's oral statement to Rodriguez released Rodriguez from probation effective April 6, 1985 and deprived the department of jurisdiction over Rodriguez until May 20, 1985, when the agent discovered the error and...
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State v. Wiedenhoeft
...certificate deprived the DOC of jurisdiction to revoke him. Relying on Wis. Stat. § 304.072(3)6 and State ex rel. Rodriguez v. DHSS, 133 Wis.2d 47, 393 N.W.2d 105 (Ct.App.1986), Greer reasoned that the DOC has jurisdiction only prior to the expiration of a probationer's term of supervision,......
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State v. Lickes
...a matter of law," therefore, individuals are required to "abide ... with departmental regulations." State ex rel. Rodriguez v. DHSS, 133 Wis. 2d 47, 52, 393 N.W.2d 105 (Ct. App. 1986). In other words, throughout the duration of probation, an individual must comply with conditions and regula......
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State v. Malone
...v. Wright, 744 F.2d 1127 (5th Cir.1984); State v. Gandara, 174 Ariz. 105, 847 P.2d 606 (App.1992); State v. Department of Health and Soc. Serv., 133 Wis.2d 47, 393 N.W.2d 105 (1986); State v. Martinez, 108 N.M. 604, 775 P.2d 1321 (Ct.App.1989).5 The New Mexico Supreme Court has held, as in ......
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State v. Yanick, 2014AP473.
...(the DOC's custody and control of probationers cannot be divested merely by an administrative error); State ex rel. Rodriguez v. DHSS, 133 Wis.2d 47, 51, 393 N.W.2d 105 (Ct.App.1986) (where an administrative action of the custodial agency is contrary to the governing statutes or contrary to......