STATE v. SHILTS, 264 Wis. 578 (1953)

59 N.W.2d 804

STATE:, Plaintiff in error, vs. SHILTS, Defendant in error.

Supreme Court of Wisconsin.June 6, 1953 —
July 3, 1953.

ERROR to review a judgment of the county court of Sawyer county: WALTER J. DUFFY, Judge. Reversed.

The facts are similar to those in State v. Stang Tank Line
(1953), ante, p. 570, 59 N.W.2d 800, decided this day. Defendant’s truck was overloaded to an extent for which sec. 85.91(2b)(b), Stats., provided a penalty of $427.60. The court incorporated the following in its judgment of conviction:

“. . . in view of circumstances presented to the court said fine and penalty is suspended with the exception of the sum of thirty and no/100 ($30) dollars, . . .”

For the plaintiff in error there were briefs by the Attorney General, and Stewart G. Honeck, deputy attorney general, and William A. Platz, assistant attorney general, and oral argument by Mr. Honeck and Mr. Platz.

BROWN, J.

The case is ruled by State v. Stang Tank Line, supra. Remission of all or part of a statutory penalty is beyond the trial court’s discretion where no such power has been given it by the legislature. It is immaterial whether the court “remits” or “suspends” the penalty; the sentence is not authorized by law and is void.

By the Court. — Judgment reversed, and cause remanded with instructions to the trial court to enter judgment in favor of plaintiff and against defendant for the penalty provided by sec. 85.91(2b)(b), Stats., conformably to this opinion and for further proceedings according to law.

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