¶ 29. (dissenting). I agree with Justice Prosser that the correct way to resolve this case is to hold that a court may impose old fines as a condition of probation but that failure to comply with such a condition cannot result in incarceration for more than six months in the county jail.
¶ 30. I write separately to point out that what the trial judge did in this case is a common practice in some circuit courts in this state, and with good reason. By failing to make court-ordered payments in the past, the defendant in this case has demonstrated his disrespect for the law and his contempt for the authority of the court. It is therefore entirely reasonable and appropriate for the court to address the old, unpaid fines when setting conditions of probation for the defendant's new offense. Imposing such a condition is well within the court's broad discretion under Wis. Stat. § 973.09 and is not expressly prohibited under Wis. Stat. § 973.07.1 therefore would not interfere with the courts' flexibility to address old, unpaid fines when setting conditions of probation in a new case as long as the court makes clear that the penalty for failure to pay the fine is no more than six months incarceration in the county jail.
¶ 31. I share Justice Prosser's concern that the court implicitly holds that the payment of old, unpaid fines can never be a condition of probation except in a few misdemeanor cases. Instead, the enforcement of old fines will now require commencement of separate judicial proceedings. It is unfortunate that additional judicial resources will be required to enforce payment of old fines when the court's discretion under Wis. Stat. § 973.09 is clearly broad enough to address these matters as conditions of probation.
¶ 32. I would remand the case for clarification. The court has the authority to require as a condition of *544probation that the probationer be confined. On remand, the circuit court therefore could clarify that one of the conditions of the defendant's probation is that he either pay the old, unpaid fines or serve six months of his probation period in the county jail. I believe that such a condition of probation would be reasonable and appropriate under Wis. Stat. § 973.09 and would be consistent with Wis. Stat. § 973.07.
¶ 33. For the above-stated reasons, I respectfully dissent.
¶ 34. I am authorized to state that Justice DAVID T. PROSSER joins this dissent.