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Wisconsin case law summary by Attorney Richard Clem: Criminal law, probation, clerical error.

State of Wisconsin ex rel. Ardonis Greer, Petitioner-Respondent-Petitioner, v. Wayne J. Wiedenhoeft, Administrator, Division of Hearings and Appeals. WI Criminal law, probation, clerical error

In 2004, Ardonis Greer was charged with possession of THC with intent to deliver while armed as a repeater. He was sentenced on the various counts to 14 months in prison, followed by three years of probation. In 2007, he completed the prison sentence and began his probation. But his supervising agent erroneously told him that he would be discharged from supervision. On October 3, 2007, the agent gave him a discharge certificate which stated that Greer was discharged absolutely.

Two years went by, and in 2009, Greer was involved in an argument with his girlfriend. He subsequently admitted to displaying an airsoft pistol during this argument. Charges were filed, and Greer pled no contest. During the presentence report, the Department of Corrections discovered the 2007 error, and greer was taken into custody for violating the terms of the probation from which he was erroneously released.

Greer argued that the probation couldn't be revoked, because he had been released from probation. In fact, he stated that he didn't even know he was on probation. He argued that the Department of Corrections didn't have any jurisdiction.

An administrative law judge held that Greer was still on probation, and that the probation should be revoked. The ALJ held that a clerical error cannot void or nullify a valid court order. After Greer exhausted his administrative appeals, he filed a petition for certiorari in Racine County Circuit Court. The Circuit Court held that even though Greer was still on probation, the department was equitably estopped from revoking it, since revoking it here would violate basic principles of decency and fairness. The state appealed, and the Wisconsin Court of Appeals reversed the decision, and held that the probation was properly revoked. Greer then appealed to the Wisconsin Supreme Court.

The Supreme Court first noted that probation is a privilege extended to a convict, and is not a right. The Wisconsin Statutes make clear that the certificate of discharge should not be issued until the period of probation has expired. It went on to hold that the Department of Corrections maintains jurisdiction, even if the erroneous certificate is issued. Jurisdiction would be lost only if the certificate was issued, under the statute, "at the expiration of the term noted on the court order." Therefore, the certificate was legally invalid.

The Court went on to dismiss Greer's Due Process and equitable challenges. For these reasons, the Supreme Court affirmed the decision of the Court of Appeals revoking the probation.

Justice Bradley and Chief Justice Abrahamson dissented, and would have held that the revocation violated due process because Greer did not have notice that he was on probation.

No. 2011AP2188 (Wis. April 17, 2014).

Please see the original opinion for the court's exact language.

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Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).

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