00-3173 State v. Zimmerman

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“Thus, this language unambiguously articulates categories of custodians whose control over parolees and probationers constitutes actual custody, namely: an institution, peace officer or guard. None of the categories includes probation or parole agents. This has been the implicit understanding of the escape statute in prior case law. …

“We conclude, therefore, the definition of actual custody under the escape statute unambiguously excludes the custody of a probation or parole agent. The State contends that this interpretation of the escape statute leads to an unreasonable result: a probationer or parolee who is taken into custody pursuant to Wis. Admin. Code § DOC 328.22 by probation or parole agents cannot be charged with escape, but a probationer or parolee who is taken into custody under the same code provision by law enforcement officers can face an escape charge for the exact same act. We do not find this discrepancy to be unreasonable. Peace officers are vested by law with a duty to maintain public order or to make arrests for crimes. Wis. Stat. § 939.22(22). Institution guards essentially have a similar role within the particular environment of prisons and other institutions. Parole and probation agents, on the other hand, establish rules of supervision and assist in providing services to their clients. … Unlike peace officers and prison guards, they are charged with ‘[r]eporting all violations of the criminal law by clients to a supervisor or appropriate law enforcement authority.’…. It is not unreasonable that the consequences of elopement from a peace officer would be more severe than in the case of elopement from a probation or parole agent.”

Judgment affirmed.

Recommended for publication in the official reports.

Dist IV, Racine County, Simanek, J., Brown, J.

Attorneys:

For Appellant: Lara M. Herman, Madison

For Respondent: Charles B. Vetzner, Madison