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06/13/83 STATE WISCONSIN v. RICHARD NUMBY GEREAUX

June 13, 1983

STATE OF WISCONSIN, PLAINTIFF-RESPONDENT,
v.
RICHARD NUMBY GEREAUX, DEFENDANT-APPELLANT



Appeal from a judgment and an order of the Circuit Court for Milwaukee County: Clarence R. Parrish, Judge.

Wedemeyer, P.j., Decker and Moser, JJ.

The opinion of the court was delivered by: Wedemeyer

This cause is before the court on appeal from a judgment of conviction and from an order denying a notice for post-conviction relief. We vacate the judgment in part, reverse the order and remand the cause with directions.

The factual setting for this appeal can be simply and succinctly put. Richard Numby Gereaux (Gereaux) entered guilty pleas to two amended charges of reckless use of a weapon, contrary to sec. 941.20(2) (a), Stats. At the time of Disposition, the trial court withheld sentencing on both counts. As an alternative, it imposed a three-year term of probation for each count, but fashioned its Disposition so that the terms of probation were consecutive.

At a hearing on post-conviction motions, Gereaux requested that the probation term in count two be made concurrent to the probation term in count one, arguing that the trial court lacked the statutory authority to impose consecutive probationary terms. The state acknowledged the merits of Gereaux's position. Nevertheless, the trial court denied the motion, assigning as its rationale that (1) the terms "sentence," "sentencing," and "probation" are often used interchangeably without distinction; and (2) it is senseless to permit courts to make life sentences or ten-year sentences consecutive, but not terms of probation.

The essential issue then is whether in our factual setting the court has the power to make the terms of probation consecutive. Grobarchik v. State, 102 Wis. 2d 461, 467, 307 N.W.2d 170, 174 (1981), informs us:

The fashioning of a criminal Disposition is not an exercise of broad, inherent court powers. We have recently observed based upon separation of powers principles, that it is for the legislature to prescribe the punishment for a particular crime and it is the duty of the court to impose that punishment. State v. Machner, 101 Wis. 2d 79, 81, 303 N.W.2d 633 (1981). If the authority to fashion a particular criminal Disposition exists, it must derive from the statutes. Id. at 82.

A 1965 version of the probationary statute, sec. 57.01(1), Stats. (1965), specifically provided that "onsecutive periods of probation may be imposed." *fn1 While the current probation statute, sec. 973.09(1) (a), Stats., *fn2 permits a period of probation to be made consecutive to a sentence, it omits the reference to consecutive periods of probation contained in sec. 57.01(1) (1965). *fn3

Prue v. State, 63 Wis. 2d 109, 114-16, 216 N.W.2d 43, 45-46 (1974), also supports our Conclusion that consecutive periods of probation may not be imposed. The terms "probation" and "sentence," according to Prue, are different concepts. The Wisconsin Supreme Court noted that a sentence is generally defined as "the judgment of a court by which the court imposes the punishment or penalty provided by the statute for the offense . . . ." Id. at 115-16, 216 N.W.2d at 46. Probation is not a sentence; it is an alternative to a sentence. Id. at 114, 216 N.W.2d at 45. *fn4 Furthermore, "sentence" is a legal term and must be given its legal meaning in sec. 973.09(1) (a), Stats., as required by the Wisconsin Supreme Court in Prue. Id. at 116, 216 N.W.2d at 46. We hold that the term "sentence" is a legal term that does not include the term "probation."

Here, in lieu of sentence, the trial court, without statutory authority, imposed a consecutive period of probation. Thus, Gereaux must be resentenced on count two. On remand, we direct that the probation period ordered in count two must run concurrently with the three-year probation period of count one. *fn5 Accordingly, the judgment is vacated to the extent of striking any reference to a consecutive term of probation period. The order is reversed and the cause is remanded to the trial court for appropriate resentencing in light of our holding.

By the Court. -- Judgment vacated in part, order reversed and cause ...


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