NCJ Number
46410
Journal
Wisconsin Law Review Volume: 1977 Issue: 2 Dated: (1977) Pages: 503-520
Date Published
1977
Length
18 pages
Annotation
THE WISCONSIN STATE SUPREME COURT DECISION IN PRELLWITZ VERSUS SCHMIDT (1976) IS REVIEWED, AND ITS EFFECT ON PROBATION AND PAROLE REVOCATORY DECISIONS IN WISCONSIN IS DISCUSSED.
Abstract
IN 1967, THE DEFENDANT, NORMAN PRELLWITZ, WAS CONVICTED OF THEFT AND PLACED ON 3 YEARS PROBATION ON THE CONDITION THAT HE MAKE RESTITUTION WITH INTEREST. IN 1968, THE DEFENDANT FAILED TO MEET WITH HIS PROBATION OFFICER AND COULD NOT BE LOCATED. IN 1974, THE DEFENDANT WAS ARRESTED FOR A TRAFFIC VIOLATION AND HELD IN CUSTODY. A PRELIMINARY HEARING CONCLUDED THAT THE DEFENDANT'S VIOLATION OF PROBATION WARRANTED REVOCATION OF THE DEFENDANT'S PAROLE, AND HE WAS SENTENCED ON HIS ORIGINAL CONVICTION OF 2 YEARS IN THE WISCONSIN STATE PRISION, THE COURT, HOWEVER, STAYED THE SENTENCE AND PLACED THE DEFENDANT ON A NEW CONDITIONAL PROBATION. THE DEFENDANT'S PETITION FOR REVIEW OF THE REVOCATION WAS DISMISSED, WHEREUPON HE APPEALED THE DISMISSAL TO THE WISCONSIN SUPREME COURT BY WRIT OF ERROR. THE COURT CONSIDERED WHETHER THE DEPARTMENT OF HEALTH AND SOCIAL SERVICES, THE STATE PROBATION AGENCY, PRESENTED EVIDENCE TO SUPPORT THE REVOCATION AND WHETHER THE TRIAL COURT HAD ABUSED ITS DISCRETION BY STAYING THE SENTENCE. THE COURT HELD THAT THE REVOCATION WAS WARRANTED BY ESTABLISHED EVIDENCE AND FURTHER STATED THAT THE TRIAL COURT HAD NOT ABUSED ITS AUTHORITY BY PLACING THE DEFENDANT ON PROBATION IN LIEU OF SENTENCING. THE PRELLWITZ HOLDING IS OF PARTICULAR SIGNIFICANCE IN THAT ONCE THE DEPARTMENT CAN ESTABLISH THE MERE FACT OF VIOLATION OF A PAROLE OR PROBATION CONDITION, A REVOCATION IS WARRANTED. IN EFFECT, THE DEPARTMENT IS NO LONGER REQUIRED TO EXERCISE DISCRETION AND DEMONSTRATE THAT THE VIOLATION IS OF SUCH A NATURE AS TO WARRANT REVOCATION. A NUMBER OF SUPREME COURT DECISIONS ARE RELEVANT TO THE IDENTIFICATION OF THE RIGHTS PROTECTED IN A REVOCATION PROCEEDING. IN MORRISSEY VERSUS BREWER, IT WAS HELD THAT DUE PROCESS DID APPLY TO PAROLE REVOCATION PROCESSES, AND THAT THE REVOKING AUTHORITY MUST EXERCISE REASON AND DISCRETION IN ITS DECISION. GAGNON VERSUS SCARPELLI ESTABLISHED THAT DUE PROCESS PROTECTIONS IN PRELIMINARY AND FINAL HEARINGS ARE ALSO APPLICABLE TO PROBATION REVOCATIONS AND IDENTIFIED TYPES OF FACTORS WHICH SHOULD BE CONSIDERED IN A REVOCATION DECISION. FINALLY, IN THE WISCONSIN SUPREME COURT DECISION IN PLOTKIN VERSUS THE DEPARTMENT OF HEALTH AND SOCIAL SERVICES, IT WAS FOUND THAT THE DEPARTMENT MUST MAKE A DETERMINATION, EXERCISING DISCRETION, THAT UNDER THE CIRCUMSTANCES OF THE PARTICULAR CASE THE VIOLATION WARRANTED REVOCATION OF PROBATION. FURTHER, THE COURT RECOGNIZED THE DUE PROCESS RIGHTS OF MORRISSEY AND APPROVED AND ADOPTED THE AMERICAN BAR ASSOCIATION STANDARDS RELATING TO PROBATION. IN SUM, THE PRELLWITZ DECISION CONFLICTS WITH PLOTKIN AND THE UNDERLYING LEGAL BASIS OF PLOTKIN AND APPEARS TO SANCTION REVOCATION WITHOUT THE NEED TO EXERCISE DISCRETION. THE DIVISION OF CORRECTIONS HAS ISSUED REVISED REVOCATION STANDARDS BASED UPON ITS READING OF PRELLWITZ. IT IS CONCLUDED THAT THE EFFECT OF PRELLWITZ HAS BEEN TO ENCOURAGE THE USE OF ARBITRARINESS AND IRRATIONALITY IN THE REVOCATION OF A PAROLEE'S CONDITIONAL LIBERTIES. (JAP)