State v. Oakley

SNYDER, P.J.

(dissenting). My colleagues conclude that imposing Oakley's old, unpaid fines as a condition of his newly-ordered probation is "reasonable and appropriate" under § 973.09(1), Stats. I respectfully disagree. Because the payment of the fines can only be enforced through the existing § 973.07, Stats., sanctions, and because a condition of probation must be enforceable through probation sanctions in order to be rehabilitative, the unpaid fine condition is not reasonable or appropriate.

On April 19,1989, Oakley was convicted of operating after revocation and fined a total of $2517 to be paid in sixty days. In the alternative, his driver's license could be suspended for five years and/or 200 days jail imposed under § 973.07, Stats. Oakley was fined $185.80 for disorderly conduct on May 19, 1993, to be paid in twenty-five days or his driver's license would be suspended for five years. Oakley has paid a total of $100 against the fines. The unpaid balance is the basis of the October 20, 1997 condition of probation imposed *444on Oakley during his sentencing for the unrelated crime of intimidating a witness.

At sentencing, the trial court placed Oakley on probation for three years and admonished him:

If you botch up your probation, you . . . get your probation taken away. That's what the probation department will do. They will revoke your probation, and then they will send you back to see me. I will not be happy to see you, Mr. Oakley, because your probation is your second and last chance.
If you come back in here with unsuccessful probation, I am probably going to give you the maximum amount of time available to me under the law, which is ten years in prison. So, if you are inclined, while on probation, to think about screwing off in regard to your obligations, keep in mind that I will be seeing you again, and then you are going to go right from here, right up to prison. That's not what you want to do.

The trial court then told Oakley, "[Y]ou also have some fines that you owe to the county of Sheboygan totaling $2,602.80. I will make the repayment of that also a specific condition of your probation." Oakley would face a prison term of up to ten years if he violated the probation obligation and subsequently had his probation revoked.

In spite of imposing the fine repayment as a condition of probation, the trial court acknowledged the existing § 973.07, Stats., jail sanctions1 for nonpayment of the fines:

*445[T]he alternative for Mr. Oakley [not paying the fines during his probation] is I will have him committed to the county jail for 96 days, and unless he coughs up the money. We have chosen not to do that. If that would be Mr. Oakley's preference to serve 96 days in the county jail and still owe us the money, that can be arranged.2
[I]t benefits Mr. Oakley to get this matter cleaned up, because if not, he will be incarcerated in the county jail, which is not beneficial to Mr. Oakley.

Assuming that Oakley complies with all of his probation conditions except that of paying the prior fines, he still violates his probation. If Oakley violates his probation, the sanction is revocation.3 Revocation of his probation exposes Oakley to a prison term rather than to the previously imposed § 973.07, Stats., jail alternative for nonpayment of the prior fines. Substituting a new prison alternative for a jail alternative established under a prior judgment is neither reasonable nor appropriate. Because imposing a prison term *446for Oakley's past or future failure to pay the unrelated4 fines is not reasonable or appropriate, the probation condition is not reasonable or appropriate. A probation condition that cannot be enforced through imposing probation sanctions can only serve to weaken and frustrate the goals of probation, including rehabilitation, and would add an extraneous clerical duty to an already overburdened probation agency.

In sum, § 973.09(1)(a), Stats., requires that conditions of probation be "reasonable and appropriate." Imposing a probation condition that, if violated, expands a statutorily-limited jail term to a prison sentence of up to ten years is neither reasonable nor appropriate. The trial court' does not need a probation order to enforce the § 973.07, Stats., sanctions. The unpaid fine condition of Oakley's probation serves only to protect him another three years from suffering the long overdue jail consequences for his past failures. The unpaid fine condition is not reasonable or appropriate for Oakley's probation and should be struck from the order. Sheboygan county can collect Oakley's old fines and enforce Oakley's old judgments in the manner legislatively approved and intended, through the existing § 973.07 alternative sanctions.

The statutorily-created sanctions under § 973.07, Stats., for failure to pay imposed fines are discussed in State v. Schuman, 173 Wis. 2d 743, 748, 496 N.W.2d 684, 686-87 (Ct. App. 1993):

*445[0]ur supreme court stated in [State ex rel. Pedersen v. Blessinger, 56 Wis. 2d 286, 290, 201 N.W.2d 778, 781 (1972)], "We do have in sec. 973.07, Stats., a six months' limitation on the enforcement method of collection of a fine by imprisonment, supposedly on the ground of public policy that if six months' incarceration will not induce payment, a longer period [of time] will be fruitless." After a defendant has served six months in jail for failure to pay a fine, the state must use other methods, such as civil collection, to collect the fine.

The trial court's calculation of a ninety-six day jail commitment is not explained in the record.

Oakley could have the length of his probation extended. Extension of Oakley's probation based solely on his failure to comply with the unpaid fine condition suffers from the same infirmities as does its revocation.

Section 973.05(2), Stats., addresses fines related to the conviction being made a condition of probation. "When a defendant is sentenced to pay a fine and is also plated on probation, the court may make the payment of the fine ... a condition of probation." (Emphasis added.) Oakley was neither "sentenced to pay a fine" arising out of the conviction that resulted in his probation nor was he placed on probation when the unpaid fines were originally imposed.