Probation — discharge

Listen to this article

Wisconsin Supreme Court

Criminal

Probation — discharge

The Department of Corrections retains jurisdiction over a probationer, despite the erroneous issuance of a discharge certificate.

“Both Wis. Stat. §973.09(5) and Wis. Admin. Code §DOC 328.17(2) ensure that the DOC carries out the sentence imposed by the circuit court. Allowing a clerical error by the DOC to preclude imposition of that sentence would be contrary to the purposes of these provisions and would undermine the finality of the court’s judgment. Indeed, even the circuit court itself has limited authority to modify a sentence and may do so only within ‘defined parameters,’ and ‘[a] court cannot base a sentence modification on reflection and second thoughts alone.’ State v. Ninham, 2011 WI 33, ¶88, 333 Wis.2d 335, 797 N.W.2d 451; State v. Harbor, 2011 WI 28, ¶35, 333 Wis.2d 53, 797 N.W.2d 828. Generally, a circuit court may modify a sentence only if it abused its discretion in imposing the sentence,1 or if a ‘new factor,’ unknown to the trial judge at the time of sentencing, has come to light. In any event, ‘adequate reasons’ for the modification must be made known on the record. State v. Wuensch, 69 Wis.2d 467, 480, 230 N.W.2d 665 (1975).”

Affirmed.

2011AP2188 State of Wisconsin ex rel. Greer v. Wiedenhoeft

Ziegler, J.

Attorneys: For Appellant: Kassel, Jeffrey J., Madison; Chiapete, W. Richard, Racine; For Respondent: Severino, Jennifer Marie, Racine