STATE v. SORENSON, 31 Wis.2d 368 (1966)

142 N.W.2d 785

Supreme Court of Wisconsin.May 13, 1966. —
June 7, 1966.

Page 369

ERROR to review a judgment of the county court of Dunn county: WILLIAM H. BUNDY, Judge. Reversed.

On September 28, 1965, defendant in error, Don Lee Sorenson, was convicted, upon his plea of nolo contendere, of indecent behavior with a minor in violation of sec. 944.11 (2), Stats. A presentence examination by the department of public welfare was ordered and a report recommending specialized treatment was filed with the court. On December 9th the court committed defendant in error to the state department of public welfare for

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specialized treatment for an indeterminate term not to exceed one year. The state has sought review of the judgment under sec. 958.12 (1) (c).[1]

For the plaintiff in error the cause was argued b William A. Platz, assistant attorney general, with whom on the brief was Bronson C. La Follette, attorney general.

For the defendant in error there was a brief by Carey Solberg of Menomonie, and oral argument by Ronald J. Carey.

WILKIE, J.

The sole issue on this review is whether the trial court was in error in committing the defendant to the welfare department (1) for an indeterminate term, (2) not to exceed one year, when the maximum term for indecent behavior with a child is ten years.[2]
The trial court committed the defendant in error to the department of public welfare under secs. 959.15 (6)[3]
and 959.05,[4] Stats.

Under sec. 959.15 (6), Stats., there are only two alternatives available to the trial court when the department of public welfare recommends specialized treatment:

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The defendant is either placed on probation, with the condition that he or she receive prescribed inpatient or outpatient treatment, or is committed to the department.[5]
After care is suggested, the trial court has no authority whatsoever to impose any sentence as such. It is only when the department determines that no treatment is required that the trial court is free to sentence the defendant as provided by law for the offense.[6]

Defendant in error points to language in sec. 959.15 (12), Stats.,[7] which calls for the discharge of any person still committed, unless the department has applied for an order continuing control “at the expiration of the maximum term prescribed by law for the offense for which he was convicted” and argues that this means the maximum set by the trial court under sec. 959.05. But, as previously discussed, the trial court has no authority to impose any sentence when special care is suggested by the department. Furthermore, the

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very reference to the maximum term “for the offense for which he was convicted” contemplates that the defendant will be subject to the control of the department for the maximum period established by the criminal statute violated — in this case ten years — and not for a maximum set by the trial judge under the indeterminate sentencing provisions.[8] This result gives full effect to the command that provisions of sec. 959.15 “shall prevail over conflicting provisions heretofore enacted.”[9]

It is true, as argued by the defendant in error, that there is no practical difference in terms of results under either interpretation. This is because the department could, after appropriate hearings, continue its control over him for a full ten-year period. But this does not mean that the court is empowered to lay down an indeterminate sentence. On the contrary, the exclusive power given to the department to parole[10] or discharge[11]
a defendant indicates that the department and not the court is to have the larger say in regard to the defendant’s release. As this court has recognized:

“. . . the legislature has authorized the department, not the court, to determine whether the defendant’s offense is to have the consequences of a crime in the traditional sense or is the manifestation of physical or mental aberration for which defendant should be treated. If the offense is, in fact, the latter, then it is in the interest both of society and the defendant that defendant receive treatment and that any restrictions imposed upon liberty should not be imposed for the purpose of punishment.”[12]
By the Court. — Judgment reversed and cause remanded for further proceedings not inconsistent with this opinion.

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