State v. Jackson

LOUIS J. CECI, J.

(dissenting). I dissent from the majority opinion for the same reasons set forth in my dissent in State v. Thelmer Davis, released February 11, 1986. 127 Wis. 2d 486, 381 N.W.2d 333 (1986).

I would affirm the court of appeals. The circuit court did not abuse its discretion in extending Ms. Jackson's probation. The record supports a determination that cause exists for extending probation; the hearing transcripts indicate that the circuit court relied on applicable law in reaching its determinations. The defendant certainly had the capacity to make full restitution, yet she failed to do so.

This case represents another instance in which a probationer has failed to meet a condition of her probation: here, full restitution of an overgrant of assistance *370of $3,180 which she failed to report, to be made within five years. She was unemployed for the duration of this time. She was, however, receiving and accepting AFDC payments. She stated she made several attempts within that time to seek employment. The trial court was unconvinced with her efforts. It ordered her to find a job. The majority, however, is now content to condone and legitimize her failure to make restitution and to dismiss the defendant's failure as an abuse of the circuit court's discretion.

If restitution is to promote the goals which this court identified in Huggett v. State, 83 Wis. 2d 790, 798, 266 N.W.2d 403 (1978), then restitution as a condition of probation must not be reduced to a mere suggestion or proposal, to be met only if it does not interfere with the normal lifestyle of the defendant during the probationary period. The majority decision in effect reduces restitution to a mere suggestion, not a condition. To so hold disserves the goals of probation: " 'the rehabilitation of those convicted of crime and the protection of the state and community interest.'" Id. (quoting State v. Tarrell, 74 Wis. 2d 647, 653, 247 N.W.2d 696 (1976)).

Here, the circuit court merely ordered that probation be extended and that the defendant find work in order to meet her restitution requirements. The majority intimates that ordering the defendant to obtain a job from which she might make restitution runs contrary to the initial conditions of probation. The circuit court, however, merely expressed that which ought to have been pursued by the defendant from the very imposition of probation. It should be unnecessary for the circuit court to need to order the defendant to find a job in the first place, but it is unreasonable to find that such an order constitutes an abuse of discretion.