Will v. State

• Decision Date: 30 June 1978
• Docket Number: No. 76-366-CR,76-366-CR
• Parties: John F. WILL, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.
• Court: Wisconsin Supreme Court

Page 357

267 N.W.2d 357

84 Wis.2d 397

John F. WILL, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. 76-366-CR.

Supreme Court of Wisconsin.

Argued June 7, 1978.

Decided June 30, 1978.

Howard B. Eisenberg, State Public Defender, argued and on brief, for plaintiff in error.

Edward S. Marion (argued), Asst. Atty Gen., and Bronson C. La Follette, Atty. Gen., on brief, for defendant in error.

CALLOW, Justice.

The single issue in this case is the constitutionality of an order requiring an indigent offender to pay his $250 fine plus costs in ninety days or be imprisoned for twenty-five days for nonpayment of the fine.

On October 30, 1975, John F. Will pleaded guilty to operating a motor vehicle while under the influence of an intoxicant, contrary to sec. 346.63(1)(a), Stats., before the Honorable William H. Carver, County Judge. Mr. Will had two previous convictions for the same offense in 1970 and 1971. Because he had already made some progress in an alcoholic treatment program, the State recommended that the minimum sentence of five days be imposed. ¹ On November 3, 1975, Judge Carver sentenced Mr. Will to five days in jail and a fine of $250 and costs or in the alternative an additional twenty-five days in jail. Defendant's counsel then informed the court that Mr. Will was unable to pay a fine. The court responded that, in view of the two prior offenses, the $250 fine was the minimum fine he could impose.

Since the trial court did not make the fine payable at some future date, the fine was payable forthwith. Sec. 973.05(1), Stats. As a result, the defendant petitioned the court to relieve him from the twenty-five day alternative jail sentence and release him from jail after serving the five-day jail sentence on the grounds that he was unable to pay a $250 fine and costs. At the hearing on this petition, the defendant testified that he was twenty-three years of age, that his lawyer was court appointed, and that he had not completed the eleventh grade. He had been in a serious automobile accident in which he suffered injury to his brain and hip. As a result, he spent nine months in Winnebago Hospital. Because of the hip injury, he is classified by the Social Security Administration as totally disabled. His only income is $228 per month in disability benefits. He has a job as a part-time commission salesman, but in the six months of his employment he has made only $50. He stated that in the past few months he has attempted to find some other work but was told by the State Unemployment Office to await an update on the work limitation caused by his disability. His parents are living and divorced. His mother is unemployed, and her source of income is AFDC, while his father is also unemployed and does not own a car or a home. The defendant testified that he did not own a car but that the car he was driving when he was arrested was in his and his old girlfriend's names. He owns a watch worth about $10. The furniture in his apartment belongs to his elder sister. His expenses are $109 per month for rent, $40 per month for utilities, and $20 per week for food. When his disability income runs out, he eats at his mother's or his girlfriend's home. He has a roommate, but his roommate is also unemployed. When he drank, he used the grocery money. He paid a fine recently for driving without an operator's license by borrowing the money from his old girlfriend. The trial court finally asked Mr. Will when he was going to be able to pay the fine, and he said "This I wouldn't really know, sir." The trial court did not reduce the fine but ruled instead that:

"(T)he Court can extend the defendant some opportunity and time to pay, but I don't think the defendant under these circumstances can continuously avoid the responsibility of paying the fine and we don't do not necessarily have to go through one of these hearings every time the time comes up for the defendant to avoid responsibility of paying."

The court gave the defendant ninety days to pay:

"Schedule the matter for payment on or before February 9 at nine o'clock here in this courtroom or there will be an alternative of 25 days in the County Jail and it's my understanding the Court can enforce that with the jail sentence. He will have almost six months from the time this ticket was issued until such time as he's been ordered to pay here and I would think that within that six-month period he ought to be able to afford to pay the fine, $259 it is. The alternative is 25 days in the County Jail."

The defendant appealed the trial court's order to the circuit court. The sentence was stayed pending appeal, and on April 15, 1976, the circuit court, the Honorable William E. Crane, presiding, summarily affirmed the trial court. The defendant now brings a writ of error to this court to review the affirmance by the circuit court. The circuit court stayed execution of the sentence pending this review.

Although the United States Supreme Court has declined to consider wealth a suspect classification in all circumstances, San Antonio School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973), the Supreme Court has held that differences in treatment by the criminal justice system based on wealth require strict judicial scrutiny. In Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971), Morris v. Schoonfield, 399 U.S. 508, 90 S.Ct. 2232, 26 L.Ed.2d 773 (1970) (Per Curiam), and Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970), the Court held that the equal protection clause restricts the state's power to collect a fine from a defendant without the means to pay. We have previously held that: "What these cases (Williams, Morris, and Tate ) teach is that one who has been convicted of a crime and fined is not to be imprisoned in satisfaction of the fine or in lieu thereof if he is unable to pay the fine." State ex rel. Pedersen v. Blessinger, 56 Wis.2d 286, 289, 201 N.W.2d 778, 780 (1972). Under the Williams, Morris, and Tate rationale, no equal protection violation occurs when an indigent offender is originally sentenced to confinement; for when he is originally sentenced to confinement, he is being punished for the crime. But once a sentencing judge has determined a fine to be the appropriate penalty, a defendant who is incarcerated merely because he is without the means to pay the fine is being incarcerated not for the crime but for his poverty, and such incarceration is illegal. On the other hand, when an indigent defender upon whom a fine has been imposed lacks the diligence to meet a reasonable payment schedule, his refusal to pay the fine results from contumacy and not indigency, and incarceration is permissible to punish the refusal to pay. Tate v. Short, supra, 401 U.S. at 400, 91 S.Ct. 668; Williams v. Illinois, supra, 399 U.S. at 242 n.19, 90 S.Ct. 2018; State ex rel. Pedersen v. Blessinger, supra, 56 Wis.2d at 295, 201 N.W.2d 778.

Sec. 973.05 gives the court power to grant permission for the payment of the fine to be made within a period not to exceed sixty days. Sec. 973.07 provides that "When a fine or the costs are not paid as required by the sentence, the defendant may be committed to the county jail until the fine and costs are paid or discharged for a period fixed by the court not to exceed 6 months." We held in Pedersen that, though both statutes are constitutional on their face, they must be applied with some modifications to indigent offenders. We also held that the period of sixty days for payment of a fine in sec. 973.05(1), Stats., since it is "the equivalent timewise in most cases of instalment payment," is reasonable in most cases. 56 Wis.2d at 294, 201 N.W.2d at 782. But we also pointed out that sec. 973.05(1):

". . . does not prevent a trial court from exercising its inherent power to stay the sentence providing for payment within 60 days upon such terms as the court may then find to be just. This inherent power to stay a sentence to meet the needs of an individual case must be construed as part and parcel of the statute." Id. at 294, 201 N.W.2d at 783.

Similarly, we held that sec. 973.07, Stats., calling for imprisonment for nonpayment of a fine, is constitutional in cases where the defendant has the ability to pay the fine and will not. "In such case, the defendant has a key to his imprisonment and it is only his contumacy which keeps him from enjoying his liberty." But for an offender unable "in fact and in truth" to pay the fine, sec. 973.07 is discriminatory and cannot be applied: "Under such conditions he is imprisoned because of his poverty." Id. at 295, 201 N.W.2d at 783.

In Pedersen, we set out the following procedure to be followed in cases where the defendant claims he is unable to pay a fine: (1) We encouraged trial courts to follow a practice of ascertaining the defendant's ability to pay a fine at the time of sentencing. 56 Wis.2d at 296, 201 N.W.2d 778. At this time the court should determine an amount and payment schedule in keeping with the defendant's means. See: ABA Standards Relating to Sentencing Alternatives and Procedures, sec. 2.7 (1968); quoted in Pedersen, supra at 291 n.2, 201 N.W.2d 778. (2) If, thereafter, the defendant is unable to pay the fine imposed, he has the burden to apply to the court for relief, either within the time given by the court for payment or prior to commitment to jail for nonpayment pursuant to sec. 973.07, Stats. 56 Wis.2d 295-6, 201 N.W.2d 778. In addition, we also emphasized that, in a case where a fine once imposed becomes beyond the offender's means, within ninety days of sentencing the trial court may change or modify the sentence. In Pedersen we...