DROW v. SCHWARTZ, 220 Wis.2d 415 (Ct.App. 1998)

583 N.W.2d 655

Court of Appeals of Wisconsin.
Case No.: 97-1867.Submitted on briefs: May 19, 1998.
Decided: May 19, 1998. Amended July 8, 1998.

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APPEAL from an order of the circuit court for Marathon County: VINCENT K. HOWARD, Judge. Reversed and cause remanded.

On behalf of the petitioner-appellant, the cause was submitted on the briefs of Daniel E. Drow, pro se, of Green Bay.

On behalf of the respondents-respondents, the cause was submitted on the brief of James E. Doyle, attorney general, an Pamela Magee, assistant attorney general, of Madison.

Before Cane, P.J., Myse and Hoover, JJ.

HOOVER, J.

Daniel Drow appeals an order revoking his probation. Drow contends the circuit court that conducted a certiorari review of his revocation lacked personal jurisdiction because it was not the court of conviction. We agree and therefore reverse and remand.[1]

Drow pled no contest to one count of second-degree sexual assault of a child, one count of exposing a child to harmful materials, and two counts of felony bail jumping. The court withheld sentence and placed Drow on probation for ten years on the sexual assault charge, six years on the exposing charge and nine years on the bail jumping charges, concurrently.

Drow was required to participate in sex offender treatment as a condition of probation. He participated in several different series of treatments, but was terminated because of disruptive behavior and failure to

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participate appropriately. Ultimately, the probation department undertook revocation proceedings. After a hearing, Drow’s probation was revoked and he was imprisoned pursuant to the sentence. The revocation decision was affirmed by administrative appeal, and Drow filed a petition for a writ of certiorari to challenge the revocation. A hearing was held in circuit court, and the court affirmed the revocation. Drow appeals that order.

Drow contends that his petition for writ of certiorari was not heard in the court of conviction. In support, he cite State ex rel. Johnson v. Cady, 50 Wis.2d 540, 550, 185 N.W.2d 306, 311 (1971). The Johnson court concluded that the legislature provided probationers and parolees a right to a revocation hearing, and that judicial review of that hearing is to be “directed to the court of conviction.” Id. at 549-50, 185 N.W.2d at 311. Drow contends that the court lacked jurisdiction to sentence him because his writ was heard in a different branch from that in which he was convicted.

This case involves the application of law to undisputed facts. It therefore presents a question of law reviewed de novo Ball v. District No. 4, Area Bd., 117 Wis.2d 529, 537, 345 N.W.2d 389, 394 (1984). The State contends tha Johnson‘s requirement is satisfied if the petition is heard by any circuit court sitting in the county of conviction. We disagree. We interpret “court of conviction” to mean precisely what it simply provides. Johnson requires a probationer or parolee who has been revoked to have his or her petition reviewed in the same branch of circuit court in which he or she

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was convicted.[2] In establishing a scheme, the supreme court could have provided that judicial review could be in a circuit court in the county of conviction without effecting a substantive difference. However, its directive is clear, and this court is bound by the decisions of the supreme court. State v. Irish, 210 Wis.2d 107, 109 n. 2, 565 N.W.2d 161, 162 n. 21 (Ct.App. 1997). Moreover, we can perceive no prejudice to the State by requiring review in the same court in which the revokee was convicted.

Drow had a right to review of his revocation in the court of conviction, and we therefore reverse and remand for consideration of his petition by the court of conviction.

By the Court. — Order reversed and cause remanded.

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