 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Gaspardo v. Schwarz3/15/2000
Cornelia G. Clark Acting Clerk, Court of Appeals of Wisconsin
APPEAL from an order of the circuit court for Fond du Lac County: STEVEN W. WEINKE, Judge. Affirmed.
.
The question presented is to what extent the Department of Corrections (DOC) must consider alternatives to prison before recommending revocation of probation. Here, James Gaspardo's probation was revoked after he violated his conditions of probation by driving while intoxicated. The circuit court reversed, agreeing with Gaspardo's contention that the DOC never considered sending him to alcohol boot camp, which he had been told would be the consequence of his drinking. We conclude that the DOC, after specifying boot camp as a consequence in Gaspardo's probation plan, was bound to consider that alternative and explain why it was rejected. We affirm the circuit court's order reinstating Gaspardo's probation.
. The facts of this case are as follows. In May 1997, Gaspardo was convicted of criminal damage to property and disorderly conduct, both as a repeater. The circuit court imposed and stayed a three-year prison sentence on each count and placed Gaspardo on probation for three years. Among the conditions of probation were that Gaspardo "avoid all conduct which is in violation of federal or state statute," not drive a car, not possess or consume alcohol and keep his probation agent informed of his whereabouts. Additionally, the probation supervision rules stated: "You shall complete AODA [alcohol and other drug abuse] boot camp if you do drink or have any drug use." On November 5, 1997, Gaspardo, while intoxicated, drove a car into a pole. Gaspardo refused to speak to the sheriff's deputy who arrived on the scene. When he finally did, the deputy smelled alcohol on his breath and Gaspardo would only identify himself as "Jim." At the hospital, Gaspardo was combative with personnel and had to be restrained in order to be treated. To top it off, Gaspardo threw a urine bottle across the emergency room and threatened to kill the sheriff's deputies. Because Gaspardo's behavior that night violated several of his conditions of probation, the DOC recommended revocation of his probation. After a revocation hearing, the administrative law judge (ALJ) issued a written decision revoking Gaspardo's probation. The decision to revoke was affirmed by the Division of Hearings and Appeals (the division). On writ of certiorari, the circuit court reversed, finding that the DOC and the division had failed to sufficiently consider alternatives to revocation. The circuit court stated:
he Court feels that the fact that there was an expressed provision calling for a specific consequence for a specific act that was not considered ... that, at very least, an individual ... has a right to rely on the written express words of a probation plan. The fact that nothing is specifically said about the Boot Camp or the DACC program would indicate to this Court that they were not considered and were not even in the mind of those who have had the opportunity to conduct the revocation proceeding.
. Our review is of the division's decision, not that of the circuit court. See State ex rel. Warren v. Schwarz, 211 Wis. 2d 710, 717, 566 N.W.2d 173 (Ct. App. 1997), aff'd, 219 Wis. 2d 615, 579 N.W.2d 698 (1998). And on certiorari, our review is limited to: "(1) whether the tribunal stayed within its jurisdiction; (2) whether it acted according to law; (3) whether its action was arbitrary, oppressive or unreasonable and represented its will, not its judgment; and (4) whether the evidence was such that it might reasonably make the decision that it did." Id.
. Here, Gaspardo's challenge-that the division fai
Page 1 2 3 Wisconsin DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|