COURT OF APPEALS

DECISION

DATED AND FILED

 

March 5, 2002

 

Cornelia G. Clark

Clerk of Court of Appeals

 

 

 

NOTICE

 

 

This opinion is subject to further editing.  If published, the official version will appear in the bound volume of the Official Reports. 

 

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.  See Wis. Stat. § 808.10 and Rule 809.62. 

 

 

 

 

Appeal No. 

01-1356

 

Cir. Ct. No.  98-TR-6816

STATE OF WISCONSIN   

IN COURT OF APPEALS

 

DISTRICT III

 

 

 

 

Outagamie County,

 

            Plaintiff-Respondent,

 

              v.

 

Martin J. McGlone,

 

            Defendant-Appellant.

 

 

 

            APPEAL from an order of the circuit court for Outagamie County:  DEE R. DYER, Judge.  Affirmed in part; reversed in part.

1        PETERSON, J.[1]   Martin McGlone appeals an order remanding him to the custody of the Outagamie County Sheriff to serve jail time of 1,160 days for failure to pay forfeitures.  McGlone argues that his right to due process was violated because the court imposed forfeitures for conduct that was not proved and that occurred after his trial.[2]  We agree and reverse the order imposing forfeitures for conduct that occurred after trial and affirm the rest of the order.

BACKGROUND

2          McGlone owned property in Outagamie County that was zoned general agricultural.  On April 21, 1998, a deputy zoning administrator viewed the property and saw approximately thirty-two used automobiles that either failed to display current licenses or were inoperable. 

3        The County commenced this action against McGlone, claiming he violated Outagamie County, Wis., Zoning Ordinances § 17.32(4)(i) (1997).  Under the ordinance, property zoned general agricultural can be used as an automobile salvage yard only by obtaining a special exemption permit.  Automobile salvage yards are defined as “[p]remises used for the storing, dismantling, crushing, shredding or disassembly of more than one used motor vehicles or their parts."  Outagamie County, Wis., Zoning Ordinances § 17.04(2) (1997).  McGlone had not applied for an exemption permit.

4        The case proceeded to a bench trial on February 8 and 10, 1999.  The circuit court found that McGlone violated the ordinance on April 21, 1998, and continued to violate up until the date of trial.  The court assessed a single forfeiture of $332, including costs.  The court stayed the payment and gave McGlone ninety days to bring his property into compliance or obtain a special exemption permit.  Presumably, McGlone would not have to pay the forfeiture if he complied. 

5        McGlone appealed.  In an unpublished decision, we affirmed the judgment.  County of Outagamie v. McGlone, No. 99-1357, unpublished slip op. (Wis. Ct. App. Feb. 8, 2000). 

6        At a review hearing on November 20, 2000, the County requested that the circuit court impose the stayed forfeiture and “fine” McGlone “on a daily basis” if he did not bring his property into compliance.  However, no motion to that effect had been filed before the hearing and no evidence was taken at the hearing.  The County stated that it could produce a witness who would testify that McGlone’s property was not in compliance, but the witness did not testify. 

7        The circuit court granted the County’s request and vacated the stay of the previous $332 forfeiture.  It also imposed a $335 forfeiture, including costs, starting on November 21, 2000, and continuing for every day McGlone failed to bring his property into compliance.  Under the order, each forfeiture became due thirty days after it was incurred.  Further, the court stated “[a]lternatives for failure to pay … will be 40 days in jail for the failure of each and every payment.” 

8        McGlone moved for relief on the ground that he was indigent.  At a hearing on January 17, 2001, the circuit court found that McGlone was not indigent.  The County then stated that “McGlone has not cleaned up his property” and asked that he be incarcerated.  The County noted that the first new forfeiture became due on December 21, 2001.  Through the date of the hearing, twenty-eight new forfeitures had become due.  With the original unpaid forfeiture, the grand total was twenty-nine.  The County requested that the court impose forty days of incarceration for each of the twenty-nine unpaid forfeitures for a total of 1,160 days in jail.[3] 

9        The circuit court agreed and imposed the following order:

I order your remanding to the sheriff.  You will commence your serving of the time that is due presently.  That means 1,160 days in the county jail.  At this time it will be in lockup, Mr. McGlone…. Each day that you property remains in noncompliance, Mr. McGlone, is another 40 days in jail.  When your property is in compliance, Mr. McGlone, you might come back before the Court and explain to the Court that is the fact and ask the Court to reconsider your present position.

McGlone appeals this order.

STANDARD OF REVIEW

10      Whether the right to due process has been violated is a constitutional question that we review independently of the circuit court.  Capoun Revocable Trust v. Ansari, 2000 WI App 83, ¶6, 234 Wis. 2d 335, 610 N.W.2d 129.

DISCUSSION

11      The right to due process is protected by the Fourteenth Amendment to the United States Constitution and by art. I, § 1, of the Wisconsin Constitution.  Due process of law contemplates fundamental fairness.  Riemer v. Riemer, 85 Wis. 2d 375, 377, 270 N.W.2d 93 (Ct. App. 1978).  It requires that a person whose life, liberty, or property interests are affected have both notice of the charge against him or her and an opportunity to meet the charge.  Mathews v. Eldridge, 424 U.S. 319, 348 (1976).  The purpose of notice under the due process clause is to apprise the affected individual of and permit adequate preparation for an impending hearing.  Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 14 (1978).  The hearing procedures must insure that the affected individual is given a meaningful opportunity to present his or her case.  Mathews, 424 U.S. at 349.

12      The circuit court found McGlone guilty of violating the ordinance from April 21, 1998, to the final date of trial, February 10, 1999.  One forfeiture was imposed.  Only later did the County request additional forfeitures.  Further, the County requested those forfeitures for violations occurring long after the trial.  Indeed, the County even requested prospective forfeitures to be imposed until McGlone complied with the ordinance.  The County cites no authority that permits a court to impose a penalty for conduct that occurs after a trial on a specific charge.

13      As it did here, the County was certainly free to charge a continuing violation of the ordinance.  See Village of Sister Bay v. Hockers, 106 Wis. 2d 474, 479-80, 317 N.W.2d 505 (Ct. App. 1982).  In fact, the court found McGlone guilty of a continuing violation.  However, the important point is that the court imposed just one forfeiture. 

14      Furthermore, even a continuing violation charge is not open-ended.  It is limited to the proof presented at trial.  When the trial is ended and the findings made, any penalty must be limited to the charges proved.  See id. at 479.  Penalties cannot accumulate after trial for events not proved at trial.

15      We recognize that when the circuit court found McGlone guilty, in addition to imposing the one forfeiture, it ordered McGlone to bring his property into compliance with the ordinance.  The court is not without authority to enforce its orders.  For example, the County might have pursued contempt proceedings.  However, that is not what happened here.  Instead, the court imposed forfeitures for conduct that was not proved and that occurred after the trial.  That is a violation of due process. 

16      The circuit court had the authority to impose forty days in jail for nonpayment of the one forfeiture imposed in the original judgment.  See Wis. Stat. § 778.09.  However, the additional forfeitures cannot be upheld and, consequently, neither can the additional jail time. 

            By the Court.—Order affirmed in part; reversed in part.  No costs awarded to either party on appeal.

            This opinion will not be published.  See Wis. Stat. Rule 809.23(1)(b)4.

 

 


[1]  This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(g).

[2]  McGlone also argues that:  (1) the circuit court lacked the authority to imprison him for 1,160 days for violating the ordinance; (2) McGlone’s right to counsel was violated when he was ordered to serve time in jail in a proceeding in which he was not afforded the right to counsel; (3) the court erred when it determined the McGlone was not indigent; and (4) the court erred by imposing costs, in addition to a forfeiture, for each day of a continuing violation.  Because our resolution of the due process issue disposes of the appeal, we need not address the remaining arguments.  Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983).

[3]  There have been numerous proceedings in this case, resulting in protracted litigation.  The trial judge exercised admirable patience with McGlone’s refusal to comply with the ordinance.