State v. Engler
| Citation | 80 Wis.2d 402,259 N.W.2d 97 |
| Decision Date | 01 November 1977 |
| Docket Number | No. 76-745-CR,76-745-CR |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Walter G. ENGLER, Defendant-Appellant. |
| Court | United States State Supreme Court of Wisconsin |
Defendant-appellant Walter G. Engler was charged with a felony, delivery of the controlled substance cocaine, contrary to sec. 161.41(1)(b), Stats. Following bind-over to the circuit court for trial, the defendant, pursuant to a plea bargain, changed his original plea of not guilty to one of nolo contendere, and the prosecution recommended that the defendant, who was nineteen years of age, be placed on probation as a youthful offender. During the postplea inquiry the trial judge advised the defendant as follows:
"(U)nder the terms of that program (i. e., the youthful offender program) you could receive confinement not to exceed one year in the (Winnebago) County Jail as a condition of probation."
The trial court then determined that the defendant is someone who would benefit from disposition of the case as a youthful offender, as is required by sec. 54.03, Stats.1975. The court placed him on probation for eighteen months and required as a condition of probation that he serve six months of that time in the Winnebago county jail with work release privileges and that he pay $150 in restitution. Defendant then moved to withdraw the plea of no contest or in the alternative for modification of the sentence and a stay of execution pending appeal on the grounds that the trial court could not impose jail confinement as a condition of probation under the Youthful Offenders Act, ch. 54, Stats. The trial judge reduced the period of probation from eighteen months to one year and changed the place of confinement with work release privileges to the Outagamie county jail, which he called a "far superior facility." The defendant appeals.
Francis J. Slattery and Nolan, Engler, Yakes & Bauer, S. C., Oshkosh, submitted brief for appellant.
Bronson C. La Follette, Atty. Gen., and Marguerite M. Moeller, Asst. Atty. Gen., submitted brief for respondent.
The Youthful Offenders Act was established by the 1975 legislature to provide ". . . an alternative to procedures in the criminal code relating to conviction and sentencing" of persons between the ages of sixteen and twenty-one years. 1 Under this Act a defendant who is found guilty of a felony other than first-degree murder and who is determined by the trial court to be a ". . . person who will benefit and society will not be harmed by disposition as a youthful offender," is declared by the court to be a youthful offender. 2 Once such determination and declaration of status has been made, the trial court has only two options: (1) to place the offender on probation, or (2) to commit the offender to the custody of the state department of health and social services. 3
When, as in the case before us, the trial court chooses the option of placing the defendant on probation, the statute permits the trial court to impose reasonable conditions of probation. The statute provides:
4
When placing this defendant on probation and attaching as a condition of probation that this defendant be confined for six months in the county jail with work release privileges, the trial court spelled out his reasons for the disposition as follows:
The defendant does not challenge the requirement of six months confinement with work release privileges as a reasonable condition of probation. Rather, he challenges the authority of a sentencing judge, under any circumstances, to attach such a condition to the imposition of probation under the Youthful Offenders Act.
When a statute is to be construed, the threshold question is whether the term used in the statute, in this case the phrase "reasonable conditions of probation," is ambiguous. Putting aside the question not here raised of whether the condition imposed is reasonable under the circumstances of a particular case, we find no ambiguity in the legislature's provision that a judge may attach conditions to probation which are reasonable. One may challenge whether a particular condition is reasonable under the circumstances, but we cannot agree that the legislature, by insisting that conditions of probation be reasonable, has created an ambiguity. If the statute provided that "any conditions" may be attached to probation, it would mean what it said. To require conditions of probation to meet the test of reasonableness does not create vagueness or ambiguity of meaning.
When the statutory language is clear and unambiguous as is the requirement of reasonableness as a condition of probation under the Youthful Offenders Act, this court is to arrive at the intention of the legislature by giving the language its ordinary and accepted meaning. 5 As this court has put it, " 'It is impermissible to apply rules of statutory construction to ascertain legislative intent when the legislation is clear on its face.' " 6 Clear it is, on the face of this statute, that the trial court may attach any condition to probation under the Youthful Offenders Act that is reasonable. Given the facts of this case and the reasons stated by the trial court for the imposition of confinement with work release privileges, we would have no difficulty in affirming the disposition made as reasonable under these circumstances. But that claim is not here made. It is enough to hold that the imposition of a period of confinement with work release privileges, as a condition of probation, was not beyond the authority of a trial judge who is empowered by the legislature to attach any "reasonable condition" to a probation disposition under the Youthful Offenders Act. Under the law of this state it is the "popular or reasonable import of words" that is to furnish the general rule for the interpretation of statutes ". . . and in construing a statute the court is not at liberty to disregard the plain clear words of the statute." 7
In seeking a different result, defendant contends that in construing the Youthful Offenders Act this court should apply the doctrine of expressio unius est exclusio alterius. We are reminded that we, recently enough, applied this rule in construing the Children's Code of this state. 8 However in that case this court concluded that ch. 48, the Children's Code, on its face evidenced a legislative intent to enumerate specifically the powers conferred under it. Sec. 48.28 of the Children's Code states that no child may be taken into immediate custody except in an enumerated list of circumstances. A similar basis in the statutory language for finding that an enumeration of powers granted excludes all powers not thus enumerated does not exist as to the conditions to probation section of the Youthful Offenders Act. The statute before us in this case does list certain specific conditions that may be attached to a grant of probation, but it prefaces the enumeration with the phrase "including, but not limited to." There must be some factual evidence that the legislature intended the application of the expressio unius rule. 9 As to the statute here involved, not only is such evidence lacking, but the clear and unmistakable words of the statute provide that the conditions of probation available to a trial court include but are not limited by those subsequently listed.
Putting a different arrow to the bow, defendant contends that application of the doctrine of ejusdem generis could and should be applied to strip the trial court of its otherwise broad power under the Act to impose reasonable conditions of probation. The doctrine of ejusdem generis is intended to prevent words in a statute from being superfluous. To that end it provides that when a general word is used in a statute, either preceded or followed by specific words in an enumeration, the general word is construed to embrace something similar to the specific...
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