Wisconsin circuit courts do not have statutory authority to reduce probation term

By Joe Forward, Legal Writer, State Bar of Wisconsin

Nov. 1, 2010 – A statute that gives courts power to extend probation or modify probation terms does not grant authority to reduce a probation period, a Wisconsin appeals court recently held.

In addition, the court held that circuit courts, regardless of whether they have inherent authority to reduce probation periods, do not have inherent authority to reduce probation periods based on a finding of successful rehabilitation.

In State v. Dowdy, 2010AP772-CR (Oct. 21, 2010), the state challenged the circuit court’s power to reduce Carl Dowdy’s probation period from 10 years to seven, arguing that Wis. Stat. section 973.09(3)(a) allows the court to extend but not reduce a probation period.

Section 973.09(3)(a) states: “Prior to the expiration of any probation period, the court, for cause and by order, may extend probation for a stated period or modify the terms and conditions thereof.”

Because the statute confers authority to “modify the terms and conditions” of probation, Dowdy argued, the statute confers authority to reduce a probation period. The circuit court agreed, and reduced Dowdy’s probation period. The state appealed.

On appeal, the District I appeals court concluded that in enacting section 973.09(3)(a), “the legislature did not intend to grant circuit courts the authority to ‘modify’ probationary dispositions by reducing them in length.”

No statutory authority 

In 2002, Dowdy was convicted of second-degree sexual assault with use or threat of force or violence. The court stayed his 15-year prison sentence, and imposed a 10-year probation period with a year of confinement.

After seven years, Dowdy asked the court for a modification that would discharge his probation altogether. Both the state and the victim objected, but the circuit court found good cause to grant Dowdy’s request, and noted its authority under section 973.09(3)(a).

But the appeals court held the plain language of the statute “does not grant a circuit court the authority to reduce a probation period.”

“In this case, there would be no need to employ the word ‘extend’ as it is used in section 973.09(3)(a) if ‘modify’ meant ‘extend or reduce,’” the court explained.

Inherent authority?

The appeals court did not decide whether circuit courts have inherent authority to reduce probation periods, concluding that even if such authority exists, it cannot be used to reduce probation periods based on a finding of successful rehabilitation.

Just as circuit courts have inherent authority to modify imposed sentences, Dowdy argued, the circuit court has inherent authority to reduce probation periods.

But the state argued that if courts “have similar inherent authority to reduce [probation] periods, the courts are constrained the same way as when they modify sentences.”

The appeals court agreed. In other words, the appeals court found no reason to treat “inherent judicial authority to modify sentences” differently than “inherent judicial authority to reduce a probation period.”

Under State v. Crochiere, 2004 WI 78, 273 Wis. 2d 57, 681 N.W.2d 524, the appeals court explained, a court must observe “defined parameters” to justify sentence modifications. That is, sentence modification is only appropriate only if “a clear mistake was made at sentencing … a new factor is presented … and the sentence is unduly harsh or unconscionable.”

Applying Crochiere, the appeals court determined that the circuit court’s order demanding 10 years of probation was neither a “mistake” nor “unduly harsh.” In addition, it found that a claim of rehabilitation is not a “new factor” that could be used to consider a reduced term.

Thus, the appeals court reversed the circuit court order granting a reduced probation period.