State v. Duffy

• Decision Date: 29 February 1972
• Docket Number: No. S,S
• Citation: 194 N.W.2d 624,54 Wis.2d 61
• Parties: STATE of Wisconsin, Respondent, v. Patricia J. DUFFY, Appellant. tate 60.
• Court: Wisconsin Supreme Court

Page 624

194 N.W.2d 624

54 Wis.2d 61

STATE of Wisconsin, Respondent, v. Patricia J. DUFFY, Appellant.

No. State 60.

Supreme Court of Wisconsin.

Feb. 29, 1972.

Patricia J. Duffy, defendant-appellant was found guilty of driving an automobile after her license had been revoked, in violation of sec. 343.44, Stats., in the county court of Kenosha county. The court imposed a fine of $60 plus costs and a five-day county jail sentence. The Kenosha county court stayed the execution of the sentence pending appeal.

Appeal was tkaen to the circuit court for Kenosha county, and the judgment of the county court was affirmed.

Appeal has now been taken to this court.

Samson, Friebert, Sutton & Finerty, Robert E. Sutton, Milwaukee, for appellant.

Robert W. Warren, Atty. Gen., Richard J. Boyd, Asst. Atty. Gne., Madison, for respondent.

CONNOR T. HANSEN, Justice.

The defendant has consistently objected to the imposition of a mandatory jail sentence under sec. 343.44(2), Stats. It is contended that (1) the provisions of the statute do not preclude the availability of probation to one convicted thereunder, and (2) a construction of the statute that would deny probation is in violation of one's constitutional right to equal protection of the law.

IS PROBATION AN AVAILABLE ALTERNATIVE?

Prior to the amendment of sec. 343.44(2), Stats., by ch. 292, Laws of 1967, the statute read as follows:

'343.44 Driving after license revoked or suspended. . . .

'(2) Any person violating this section may be fined not less than $50 nor more than $200 or imprisoned not more than 6 months or both, except that if a person violates this section after having had his operating privilege revoked because of a conviction of any of the offenses mentioned in s. 343.31, he shall be imprisoned not less than 2 nor more than 30 days for the first violation of this section and shall be imprisoned 60 days for the second such violation and 180 days for the third and each subsequent violation.'

This statute as amended by ch. 292, Laws of 1967, provides:

'(2) Any person violating this section may be fined not less than $50 nor more than $200 and shall be imprisoned not less than 5 days nor more than 6 months, except that if a person violates this section after having had his operating privilege revoked because of a conviction of any of the offenses mentioned in s. 343.31, he shall be imprisoned not less than 5 days nor more than 6 months for the first violation of this section and shall be imprisoned not less than 60 days nor more than 6 months for the 2nd such violation and shall be imprisoned for 6 months for the 3rd and each subsequent violation. . . .'

The express language of the penalty provisions of the present statute requires that a person convicted under this section be subject to imprisonment. The judge must impose a sentence of 'not less than 5 days nor more than 6 months.' See State v Carmody (1969), 44 Wis.2d 33, 38, 170 N.W.2d 818. Notwithstanding the express language of the statute, the defendant argues that the court may nevertheless withhold the sentence or impose the sentence and stay its execution pursuant to sec. 973.09. The relevant portions of that section provide:

'Probation. (1) When a person is convicted of a crime, the court may, by order, withhold sentence or impose sentence and stay its execution, and in either case place him on probation to the department for a stated period, stating in the order the reasons therefor, and may impose any conditions which appear to be reasonable and appropriate. The period of probation may be made consecutive to a sentence on a different charge, whether imposed at the same time or previously.'

Such a construction of these two statutes would do violence to principles of statutory construction and would contravene the intent of the legislature.

It is an elementary principle of statutory construction that statutes must be construed together and harmonized. Ordinarily, a specific statutory provision will prevail over a general provision in the penal code relating to the same subject matter. State ex rel. Gutbrod v. Wolke (1971), 49 Wis.2d 736, 183 N.W.2d 161. Most of the penal statutes of this state grant the trial court discretion to either impose a sentence of imprisonment within prescribed statutory limitations or to impose a period of probation pursuant to the provisions of sec. 973.09, Stats. This authority is generally indicated by the language 'may be imprisoned,' which precedes the limitation on the period of imprisonment in the particular provisions. ¹ The legislature has enacted but few statutory provisions comparable to the one in the instant case, which expressly provide that a person convicted thereunder 'shall be imprisoned.' If probation were to be available in either case, the legislature would have no purpose in employing the word 'may' in some cases and the word 'shall' in others.

We arrive at the inescapable conclusion that the legislature left the trial court with no alternative but to impose a sentence of not less than five days upon a person convicted of a violation of this section of the statutes.

EQUAL PROTECTION.

Equal protection of the law is denied only where the legislature has made irrational or arbitrary classifications. Town of Vanden Broek v. Reitz (1971), 53 Wis.2d 87, 191 N.W.2d 913; State ex rel. Johnson v. Cady (1971), 50 Wis.2d 540, 185 N.W.2d 306; State ex rel. Schopf v. Schubert (1970), 45 Wis.2d 644, 173 N.W.2d 673. The test is not whether some inequality results from the...