State Ex Rel. H&SS Department v. Circuit Court

57 Wis. 2d 329 (1973)

204 N.W.2d 217

STATE EX REL. DEPARTMENT OF HEALTH & SOCIAL SERVICES, Petitioner, v. CIRCUIT COURT FOR MONROE COUNTY, the Hon. Peter A. Pappas, Judge of said court presiding therein, and GARY T. HANSON, the petitioner in the action in the trial court, Respondent.

Supreme Court of Wisconsin.

Argued February 19, 1973.

Decided February 21, 1973.

For the petitioner the cause was argued by Michael R. Klos, assistant attorney general, with whom on the brief was Robert W. Warren, attorney general.

For the respondent Gary T. Hanson there was a brief and oral argument by Jay Carmichael of Tomah.

PER CURIAM.

On July 7, 1971, Gary T. Hanson was convicted in the circuit court for Monroe county of violating sec. 943.23, Stats., and sentenced to an indeterminate term not exceeding thirty months; the execution of the sentence was then stayed and he was placed on probation in the custody of the Department of Health & Social Services.

A year later on July 11, 1972, the department revoked Hanson's probation and committed him to the Wisconsin State Reformatory at Green Bay. On January 15, 1973, the circuit court for Monroe county granted a writ of certiorari and held Hanson's probation had been invalidly revoked and ordered Hanson reinstated on probation and released from the reformatory. The department appealed on January 24, 1973, the day the circuit court again ordered Hanson to be released from the *330 Green Bay reformatory and that he be reinstated on probation status. The department again failed to comply with this order and appealed this order on January 31, 1973. On February 9, 1973, an alternative writ of prohibition was issued from this court and arguments were heard thereon on February 19.

It is the opinion of this court that sec. 274.26, Stats., which grants automatic stays of execution in civil matters is not applicable to an appeal from certiorari involving probation. Whatever the standing of parole may be, the revocation of probation and its review and appeal to this court is essentially a criminal matter and the automatic stay does not apply to the order of the circuit court reinstating Hanson to probation and ordering his release from the Wisconsin State Reformatory at Green Bay. As this appeal raises an important question and there may be a possibility of it becoming moot before this court can hear the merits on appeal, this court extends the probation of Gary T. Hanson granted by the circuit court, pending the disposition of this appeal and until the further order of this court.

The orders of the circuit court for Monroe county dated January 15 and 24, 1973, for the release of Gary T. Hanson on a reinstated-probation status should be obeyed by the department, pending this appeal.