Argument: February 21, 2019
Circuit Court Walworth county (L.C. 2000CF407) David M. Reddy
of a decision of the Court of Appeals. Affirmed.
the defendant-appellant-petitioner, there were briefs filed
by Andrew R. Walter and Walter Law Offices LLC, Elkhorn.
There was an oral argument by Andrew R. Walter.
the plaintiff-respondent, there was a brief filed by Kevin M.
LeRoy, deputy solicitor general, with whom on the brief was
Misha Tseytlin, solicitor general, and Brad D. Schimel,
attorney general. There was an oral argument by Kevin M.
PATIENCE DRAKE ROGGENSACK, C.J.
We review an unpublished summary disposition order of the
court of appeals, which affirmed the circuit
court's order denying Dennis L. Schwind's
motion for early termination of probation. Schwind asserts
that the Wisconsin Constitution gives circuit courts the
inherent authority to reduce or terminate a term of probation
for cause. He argues that Wis.Stat. § 973.09(3) (d),
which directs the circuit court that it may reduce or
terminate a term of probation if six requirements are met,
cannot restrict the court's inherent authority to reduce
or terminate a term of probation for cause.
We conclude that the circuit court does not have inherent
authority to grant Schwind's motion for early termination
of probation. Inherent authority of courts consists of only
those powers that are necessary for the judiciary to
accomplish its constitutionally mandated functions and
preserve its role as a coequal branch of government.
Probation is a statutory creation, and the power to reduce or
terminate a term of probation is not necessary for courts to
accomplish their constitutionally mandated functions.
Therefore, Wisconsin courts do not have the inherent
authority to reduce or terminate a period of probation.
Accordingly, we affirm the decision of the court of appeals.
In 2001, Schwind pled guilty to first-degree sexual assault
of a child, incest with a child, and engaging in repeated
acts of sexual assault of the same child. Additional counts
of incest with a child and engaging in repeated acts of
sexual assault with a child were dismissed but read-in at
sentencing. Schwind's guilty plea required him to
register as a sex offender under Wis.Stat. § 301.45, and
the charges exposed him to a maximum sentence of over 100
years in prison. The court accepted Schwind's guilty plea
and imposed a 10-year prison sentence, but immediately stayed
the sentence and placed him on probation for a term of 25
years. The conditions of his probation included one year of
jail time with work release privileges.
In 2002, Schwind violated the conditions of his probation. He
had physical contact with his victim, had sexual contact with
an animal, had unsupervised contact with children, and failed
a sex offender treatment program. The State did not initiate
probation revocation proceedings, but instead requested that
he serve another one-year term in the Walworth County Jail.
Schwind accepted the State's request and served another
one-year jail term. In 2014, after serving 13 years of his
25-year probation term, Schwind filed a motion for early
termination of probation.
Wisconsin Stat. § 973.09(3)(d) directs the circuit court
in regard to how it may "modify a person's period of
probation and discharge the person from probation" when
six requirements are met:
1. The department petitions the court to discharge the person
2. The probationer has completed 50 percent of his or her
period of probation.
3. The probationer has satisfied all conditions of probation
that were set by the sentencing court.
4. The probationer has satisfied all rules and conditions of
probation that were set by the department.
5. The probationer has fulfilled all financial obligations to
his or her victims, the court, and the department, including
the payment of any fine, forfeiture, fee or surcharge, or
order of restitution.
6. The probationer is not required to register [as a sex
did not, and could not, argue that he had satisfied all six
of these requirements. He therefore could not argue that
Wis.Stat. § 973.09(3) (d) permitted the circuit court to
reduce his probation term.
Schwind instead argued that his petition for early
termination of probation relied on the circuit court's
inherent authority. He argued that notwithstanding the
requirements of Wis.Stat. § 973.09(3) (d), circuit
courts have the inherent authority to reduce or terminate a
term of probation, and a statute passed by the legislature
cannot take that away. The State opposed the motion on the
grounds that Schwind did not meet the requirements of §
973.09(3) (d), and therefore was not eligible for early
termination of his probation.
The circuit court denied Schwind's motion in January
2015. In doing so, the circuit court expressed concern that
"once you start utilizing some of those inherent powers,
that's a slippery slope that this court is not willing to
go down." However, the circuit court did not take a
position on whether circuit courts have the inherent
authority to terminate probation notwithstanding Wis.Stat.
§ 973.09(3) (d) . Instead, the circuit court decided
that even if it did have the inherent authority to terminate
probation early, it would decline to exercise it in this
In May 2016, Schwind filed a motion for reconsideration,
again arguing that the circuit court has the inherent
authority to terminate probation early and should do so in
his case. The circuit court denied Schwind's motion. This
time, the circuit court held that it did not have the
inherent authority to reduce a term of probation. It pointed
out that Wis.Stat. § 973.09(3) (d) "lists six
requirements that must be met in order for a circuit court to
discharge a probationer," and explained that "these
six requirements, which function as conditions precedent to a
probationer discharge, would be meaningless if a circuit
court had broad discretionary authority ... to reduce the
length of probation for cause."
The court of appeals affirmed in an unpublished summary
disposition order. State v. Schwind, No.
2017AP141-CR, unpublished order (Wis. Ct. App. Feb. 14, 2018)
. The court of appeals did not decide whether circuit courts
have the inherent authority to reduce or terminate a term of
probation. Id. at 4. Instead, the court of appeals
relied on its previous decision in State v. Dowdy,
2010 WI.App. 158, 330 Wis.2d 444, 792 N.W.2d 230 (Dowdy
I), aff'd, State v. Dowdy, 2012 WI
12, 338 Wis.2d 565, 808 N.W.2d 691 (Dowdy II) .
In Dowdy I, the court of appeals "did not
decide whether a circuit court possesses the inherent
authority to reduce a defendant's probation period."
Schwind, No. 2017AP141- CR, unpublished order at 3
(citing Dowdy I, 330 Wis.2d 444, ¶31). However,
the court of appeals opined that if circuit courts were to
have inherent authority to modify probation, it could be
exercised only in the same limited situations in which a
circuit court has the inherent authority to reduce a
sentence: clear mistake, a new factor, or undue harshness or
unconscionability. Schwind, No. 2017AP141-CR,
unpublished order at 3 (citing Dowdy I, 330 Wis.2d
444, ¶28) . The court of appeals decided that none of
these limited circumstances existed in Schwind's case;
therefore, there was no need actually to decide whether a
court's inherent ...