Probation – revocation — equitable estoppel

Wisconsin Court of Appeals

Criminal

Probation – revocation — equitable estoppel

The DOC is not estopped from revoking probation even though it issued a discharge certificate.

“Greer points to the following language from Rodriguez as suggesting we would have concluded the Department had lost jurisdiction over Rodriguez if it had issued him a discharge certificate, even though his probation period had not expired: ‘Because no discharge certificate was produced for the child abuse and battery conviction, the [D]epartment still had jurisdiction even given the agent’s erroneous statement.’ Id. at 51. However, that language cannot be read out of context. Immediately preceding the language Greer cites, we quoted the same provision applicable to this case stating that discharge occurs ‘only “upon the issuance of a discharge certificate by the secretary … at the expiration of the term noted on the court order.”’ Id. (quoting WIS. ADMIN. CODE § HSS 328.17(2), now WIS. ADMIN. CODE § DOC 328.17(2)) (emphasis added). Had we meant the mere issuance of the discharge certificate to control jurisdiction regardless of whether the term noted on the court order had expired, there would have been no reason for us to have included the highlighted language. Nowhere in Rodriguez do we suggest a discharge certificate in conflict with a court-ordered term of probation supersedes the court order.”

Reversed and Remanded.

Recommended for publication in the official reports.

2011AP2188 State ex rel. Greer v. Schwarz

Dist. II, Racine County, Constantine, J., Gundrum, J.

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