Wis. Stat. § 973.10
Wis. Stat. § 973.10
Before probation can be revoked, the department must hold a hearing and make a record so that on judicial review it can be determined whether the department acted arbitrarily or capriciously. The hearing need not be formal. State ex rel. Johnson v. Cady, 50 Wis. 2d 540, 185 N.W.2d 306 (1971). Revocation of probation is an integral part of the sentencing process; a defendant is entitled to assistance of counsel at parole or probation revocation hearings without regard to whether the hearing occurs in a withheld sentence or a postsentence situation. Oestrich v. State, 55 Wis. 2d 222, 198 N.W.2d 664 (1974). Since probation revocation hearings are independent from the original conviction and sentencing, a judge disqualified in the original case may preside at the hearing in the absence of a challenge. State v. Fuller, 57 Wis. 2d 408, 204 N.W.2d 452 (1973). Witnesses at a probation revocation hearing need not be sworn. State v. Gerard, 57 Wis. 2d 611, 205 N.W.2d 374 (1973). ABA standards relating to probation are adopted and applied. State ex rel. Plotkin v. DHSS, 63 Wis. 2d 535, 217 N.W.2d 641 (1974). A certiorari proceeding in the committing court to review a revocation of parole or probation is not a criminal proceeding. State ex rel. Hanson v. DHSS, 64 Wis. 2d 367, 219 N.W.2d 267 (1974). The right to counsel at a preliminary revocation hearing is within the discretion of the department based on the need to meet the applicable due process requirements. State ex rel. Hawkins v. Gagnon, 64 Wis. 2d 394, 219 N.W.2d 252 (1974). A defendant whose probation was transferred to Tennessee and who was charged with a violation of probation there was denied due process when the revocation hearing was held in Wisconsin and the department refused to allow deposition of witnesses in Tennessee. When the witnesses' testimony is of a direct and unequivocally exculpatory nature rather than cumulative, character, or background testimony that might have been adequately presented by deposition or affidavit, an opportunity to present live testimony with cross-examination of the witnesses is required. State ex rel. Harris v. Schmidt, 69 Wis. 2d 668, 230 N.W.2d 890 (1975). Department probation files and records are public records and admissible at a probation revocation hearing. State ex rel. Prellwitz v. Schmidt, 73 Wis. 2d 35, 242 N.W.2d 227 (1976). Time spent in jail awaiting revocation is deducted from a maximum sentence despite the option available to the defendant to spend the time in prison. State ex rel. Solie v. Schmidt, 73 Wis. 2d 76, 242 N.W.2d 244 (1976). When the department overrules its hearing examiner and revokes probation, it must provide a statement of the evidence relied upon and the reasons for revoking probation. Ramaker v. State, 73 Wis. 2d 563, 243 N.W.2d 534 (1976). A warrantless search by a probation officer was constitutionally permissible when probable cause existed for the officer's attempt to determine whether the probationer had violated probation. State v. Tarrell, 74 Wis. 2d 647, 247 N.W.2d 696 (1976). The trial court had no authority to extend the probation of a defendant brought before the court under sub. (2). State v. Balgie, 76 Wis. 2d 206, 251 N.W.2d 36 (1977). The court exceeded its jurisdiction by releasing the defendant on bail pending revocation proceedings. State ex rel. DHSS v. Second Judicial Circuit Court, 84 Wis. 2d 707, 267 N.W.2d 373 (1978). Equal protection does not require symmetry in probation and parole systems. State v. Aderhold, 91 Wis. 2d 306, 284 N.W.2d 108 (Ct. App. 1979). A probationer's due process right to prompt revocation proceedings was not triggered when the probationer was detained as a result of unrelated criminal proceedings. State ex rel. Alvarez v. Lotter, 91 Wis. 2d 329, 283 N.W.2d 408 (Ct. App. 1979). Probation can be revoked for violation of a criminal statute absent a written probation agreement. State ex rel. Rodriguez v. DHSS, 133 Wis. 2d 47, 393 N.W.2d 105 (Ct. App. 1986). A probation officer may conduct a warrantless search. That the underlying conviction is subsequently overturned does not retroactively invalidate a warrantless search by the probation officer. State v. Angiolo, 207 Wis. 2d 561, 558 N.W.2d 701 (Ct. App. 1996), 96-0099. A probationer has a right to a competency determination when during a revocation proceeding the administrative law judge has reason to doubt the probationer's competence. The determination shall be made by the circuit court in the county of sentencing, which shall adhere to ss. 971.13 and 971.14 to the extent practicable. State ex rel. Vanderbeke v. Endicott, 210 Wis. 2d 502, 563 N.W.2d 883 (1997), 95-0907. Because an administrative decision may be reviewed upon a timely petition for certiorari, an adequate remedy exists at law to correct defects and relief under habeas corpus will not be granted. State ex rel. Reddin v. Galster, 215 Wis. 2d 179, 572 N.W.2d 505 (Ct. App. 1998), 97-0111. A certiorari proceeding to review a probation revocation must be heard in the circuit court of conviction, but it need not be by the same branch. Drow v. Schwarz, 225 Wis. 2d 362, 592 N.W.2d 623 (1999), 97-1867. Sub (2) is constitutional. Probation and probation revocation are within the powers shared by the branches of government. Legislative delegation of revocation to the executive branch does not unduly burden or substantially interfere with the judiciary's constitutional function to impose criminal penalties. State v. Horn, 226 Wis. 2d 637, 594 N.W.2d 772 (1999), 97-2751. Sub. (2) prohibits judicial revocation of probation by the trial courts. State v. Burchfield, 230 Wis. 2d 348, 602 N.W.2d 154 (Ct. App. 1999), 99-0716. If a probationer refuses to incriminate himself or herself as required by a condition of supervision, he or she cannot be automatically revoked on that ground. If the probationer refuses despite a grant of immunity, his or her probation may be revoked on that basis. Any incriminating statements the probationer provides under the grant of immunity may be used as justification for revocation, but not used in any criminal proceedings. If a probationer is compelled by way of probation rules to incriminate himself or herself, the resulting statements may not be used in any criminal proceeding. State v. Peebles, 2010 WI App 156, 330 Wis. 2d 243, 792 N.W.2d 212, 09-3111. When both the circuit court and the defendant's probation agent ordered the defendant to attend sex offender counseling, his supervision rules required that he be truthful, that he submit to lie detector tests, and that he fully cooperate with and successfully complete sex offender counseling, the probation supervision rules documents explicitly informed the defendant he could be revoked for failure to comply with any conditions, and the defendant gave his statements, at least in part, because he was required to take lie detector tests, his statements were compelled for purposes of the 5th amendment. Because the statements were then used against him at sentencing to increase his prison sentence, they were incriminating and should have been excluded. State v. Peebles, 2010 WI App 156, 330 Wis. 2d 243, 792 N.W.2d 212, 09-3111. When a probationer or parolee is charged with a crime and may have otherwise violated conditions of release, revocation hearings based on the non-criminal violations should be held without delay. 65 Atty. Gen. 20. A state may require probation officers, among other "peace officers," to be U.S. citizens. Cabel v. Chavez-Solido, 454 U.S. 432 (1982). Revocation of probation without a hearing is a denial of due process. Hahn v. Burke, 430 F.2d 100 (1970). A probation revocation hearing may be administrative. Retained or appointed counsel must be allowed to participate. Gunsolus v. Gagnon, 454 F.2d 416 (1971). Probation revocation; right to a hearing and to counsel. 1971 WLR 648. Probation and parole revocation in Wisconsin. 1977 WLR 503.