PUBLISHED OPINION
Case No.: 94-3374-CR
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
HERBERT H. TIMMERMAN,
Defendant-Appellant.
Submitted on Briefs: October 17, 1995
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: November 29, 1995
Opinion Filed: November
29, 1995
Source of APPEAL Appeal from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Fond du Lac
(If
"Special", JUDGE: JOHN W. MICKIEWICZ
so indicate)
JUDGES: Anderson, P.J., Nettesheim and Snyder, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of the defendant-appellant, the cause was
submitted on the brief of Daryl W. Laatsch of Daryl W. Laatsch, S.C.
of West Bend.
Respondent
ATTORNEYSOn behalf of the plaintiff-respondent, the cause was
submitted on the brief of James E. Doyle, attorney general, and Michael
R. Klos, assistant attorney general.
COURT OF APPEALS DECISION DATED AND RELEASED November
29, 1995 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals. See § 808.10 and Rule 809.62(1), Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 94-3374-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
HERBERT
H. TIMMERMAN,
Defendant-Appellant.
APPEAL
from an order of the circuit court for Fond du Lac County: JOHN W. MICKIEWICZ, Judge. Affirmed.
Before
Anderson, P.J., Nettesheim and Snyder, JJ.
NETTESHEIM,
J. Herbert H. Timmerman appeals from that
portion of a trial court order which denied him work-release privileges for
child visitation purposes during his sixty-day confinement in the county jail,
which was imposed as a condition of probation under §§ 973.09 and 303.08, Stats.
Another portion of the order granted Timmerman work-release privileges
for his regular employment. We reject
Timmerman's argument that the trial court misused its discretion when it failed
to grant him release privileges for child visitation purposes. Therefore, we affirm the order.
Background
Pursuant
to a plea agreement, Timmerman pled no contest to two felony charges of theft
by fraud. In exchange for Timmerman's
no contest pleas on both charges, the State agreed to recommend a period of
probation with conditions which included restitution and sixty days'
confinement in the county jail with “work and child care release up to twelve
hours per day, six days a week.” After
reviewing the plea agreement at the sentencing hearing, the trial court
immediately informed Timmerman that it was “probably going to give you either
one or the other, not combine work and child care. One or the other, and that's all I'll give you.”
At
the conclusion of the hearing, the trial court placed Timmerman on three years'
probation. Among the conditions of
probation, the court ordered Timmerman to serve sixty days' confinement in the
county jail. The court granted
Timmerman work-release privileges pursuant to §§ 973.09(1)(a), (4) and 303.08, Stats., for purposes of his regular
employment.[1] However, the court denied Timmerman's
additional request that he be granted further release privileges for purposes
of his court-approved child visitation, scheduled for alternate Saturdays and
Sundays, and a few hours on Mondays or Wednesdays. The court denied this request, concluding that such visitation
did not come under the scope of permissible release pursuant to §
303.08(1)(c). Timmerman appeals.
Discussion
Probation
is not a sentence, but is an alternative to sentencing. State v. Gereaux, 114 Wis.2d 110,
113, 338 N.W.2d 118, 119 (Ct. App. 1983).
Probation is a matter of privilege, not right. State v. Heyn, 155 Wis.2d 621, 627, 456 N.W.2d 157,
160 (1990). Section 973.09(1)(a), Stats., gives the trial court broad
discretion to place a convicted person on probation and to “impose any
conditions which appear to be reasonable and appropriate.” Heyn, 155 Wis.2d at 627, 456
N.W.2d at 160. The trial court may
order confinement as a condition of probation, but nonetheless grant a person
the privilege of being released for the purposes enumerated in § 303.08(1), Stats.
Section 973.09(4).
Section
303.08, Stats., limits the
purposes for which a trial court may grant release. The statute provides, in part:
(1) Any person
sentenced to county jail for crime, nonpayment of a fine or forfeiture, or
contempt of court, may be granted the privilege of leaving the jail during
necessary and reasonable hours for any of the following purposes:
(a)
Seeking employment or engaging in employment training;
(b)
Working at employment;
¼.
(c) Conducting
any self-employed occupation including housekeeping and attending the needs
of the person's family;
(d)
Attendance at an educational institution; or
(e) Medical treatment.
Id. (emphasis added).
On
appeal, Timmerman contends that the trial court misused its discretion by
“automatically denying” his initial request for release for both employment and
child care as described in the plea agreement.
Timmerman maintains that the trial court erred when it told him that he
would probably get only “one or the other.”
Timmerman further challenges the court's later conclusion that
visitation does not come under the scope of § 303.08(1)(c), Stats.
The
State agrees with Timmerman's contention that § 303.08, Stats., does not preclude the trial court from allowing
release for both regular employment and child care purposes. The State acknowledges that “[i]t also
appears, at least at some points in the record, that the trial court would not
even consider release privileges for both employment and child care.”[2] However, the State asserts that the trial
court ultimately came to the correct conclusion that release for purposes of
child visitation is not envisioned under subsec. (1)(c).
We
agree with the State that it is not entirely clear from the trial court's
statements that the court determined, as a matter of law, that § 303.08(1), Stats., precludes release for the
multiple purposes stated therein.
Regardless, the threshold issue before us is the interpretation of §
303.08. Statutory construction presents
a question of law which we review independently. State v. Williams, 190 Wis.2d 1, 6, 527 N.W.2d 338,
340 (Ct. App. 1994). However, despite
our de novo standard of review, we value a trial court's ruling on such a
question. Scheunemann v. City of
West Bend, 179 Wis.2d 469, 475, 507 N.W.2d 163, 165 (Ct. App.
1993).
When
construing a statute, our purpose is to determine and give effect to the intent
of the legislature. Williams,
190 Wis.2d at 6, 527 N.W.2d at 340. We
give the language of an unambiguous statute its ordinary meaning. Id. Applying this test, we conclude that paras. (a)-(e) of §
303.08(1), Stats., are not
mutually exclusive.
The
introduction to § 303.08(1), Stats.,
unambiguously states that any person sentenced to county jail “may be granted
the privilege of leaving the jail ¼ for any of the following purposes ¼.” (Emphasis added.) This language does not limit the trial court's authority to grant
release for only “one” of the purposes stated in the statute. Rather, the statute uses the broader word
“any.” See id. We must construe all statutory words that
are not technical according to common and approved usage. Section 990.01(1), Stats. The word “any”
is defined as “[s]ome; one out of many; an indefinite number” and is “often
synonymous with ‘either,’ ‘every,’ or ‘all.’”
Black's Law Dictionary 94
(6th ed. 1990). It is thus clear that
the legislature intended to give the trial court discretion to grant release
either for one or several of the purposes under § 303.08(1) depending upon the
specific circumstances of the case. Cf.
State v. Lloyd, 104 Wis.2d 49, 63, 310 N.W.2d 617, 625 (Ct. App.
1981). This interpretation is also
consistent with the broad discretion given to the trial court in granting
probation and its attendant conditions.
See Heyn, 155 Wis.2d at 627, 456 N.W.2d at 160.
We
therefore agree with the State and Timmerman that § 303.08(1), Stats., allows a trial court to permit
release for more than one of the conditions recited in paras. (a)-(e).
Having
established that the trial court, in its discretion, could have authorized
Timmerman's release for both work and child care, we nonetheless conclude that
the court did not misuse this discretion when it denied Timmerman's request for
release for the purpose of child visitation pursuant to § 303.08(1)(c), Stats.
This subsection permits release for the purpose of “[c]onducting any
self-employed occupation including housekeeping and attending the needs of the
person's family.”
Timmerman
first argues that the trial court's initial statement at the sentencing hearing
that the court would “probably” not grant release for both employment and child
care “bespeaks a made-up mind.” See
State v. J.E.B., 161 Wis.2d 655, 674, 469 N.W.2d 192, 200 (Ct.
App. 1991), cert. denied, 503 U.S. 940 (1992). As such, Timmerman contends that the court automatically denied
his child care release request.
The
premise of this argument is that we are confined to this singular statement
made by the trial court at the outset of the sentencing proceeding. We reject this approach because, as our
later discussion will reveal, the trial court's ultimate ruling on the issue
was more elaborate and was based on additional information presented at the
sentencing hearing. We properly look to
the entire record and the totality of the court's remarks when reviewing this
discretionary determination. See
id.
We
now move to this larger question. At
the sentencing hearing, Timmerman argued that he was trying to improve his
relationship with his three-and-one-half-year-old daughter and was taking a
more active role in her life. While the
plea agreement initially characterized Timmerman's projected release as “child
care” premised, the trial court learned at the sentencing hearing that
Timmerman did not have custody or primary placement of his daughter. Instead, Timmerman had recently been granted
visitation rights on alternate weekends and one day during the week for seven
or eight hours.
Based
on this information, the trial court concluded that Timmerman's visitation
privileges did not “com[e] within the scope of child care as permitted under [§
303.08(1)(c), Stats.].” While we are not prepared to say that
visitation can never be a permissible reason for release under §
303.08(1)(c), we conclude that, under the facts of this case, Timmerman
has not demonstrated that his visitation qualified as a form of “self-employed
occupation” relating to “housekeeping and attending the needs of the person's
family” within the meaning of § 303.08(1)(c).
Timmerman
reasons that visitation is a valid purpose for release because a person
exercising his or her visitation rights is “attending the needs of the person's
family” under § 303.08(1)(c), Stats. He maintains that by visiting his daughter,
he is attending to his family's needs.
We
disagree. As we have noted, the release
envisioned by the statute must be for the purpose of “[c]onducting any
self-employed occupation including housekeeping and attending the needs of the
person's family.” See id. Timmerman's argument focuses on the
“housekeeping and attending the needs of the person's family” language of the
statute, but it ignores the threshold requirement of the statute that the
release be for purposes of “any self-employed occupation.” See id.
The
obvious legislative purpose of subsec. (1)(c) is to allow release for purposes
of self-employment. However, by this
enactment, the legislature has also recognized that housekeeping and related
services provided by a parent to the family unit are on par with the effort
expended in the more conventional “work for pay or profit” setting involving
self-employment or employment by a third party. Thus, the subsection goes on to clarify that, in some instances,
self-employment can include the responsibilities associated with housekeeping
and attending to the needs of the family.
See id. The
use of the term “including” simply connotes an illustrative example of a
general principle. State v.
Caldwell, 154 Wis.2d 683, 688, 454 N.W.2d 13, 16 (Ct. App. 1990).
We
thus interpret the statute to mean that, in appropriate circumstances,
housekeeping and attending to the needs of a person's family can rise to the
level of a “self-employed occupation” within the meaning of § 303.08(1)(c), Stats.
In such a case, the trial court may, in its discretion, properly grant
release for the performance of such duties.
In addition to any other criteria which the trial court may deem
relevant, that determination depends on the nature and quality of the effort,
service, care or work performed by the person and the amount of time expended
in such effort. Whether these
conditions for release are satisfied can only be made on a case-by-case basis.
Applying
these criteria to the facts of this case, it is clear that Timmerman provided
the trial court with no helpful information on these considerations. As such, Timmerman left the court with
nothing more than his conclusionary statement that visitation per se
qualified him for release. As we have
demonstrated, that assertion, standing alone, was insufficient.
Despite
our rejection of Timmerman's argument, we also reject the State's sweeping
contention that “[a] weekly visitation to a child by a noncustodial parent does
not involve [the] substantial commitment” of time, work and
responsibility. As we have held, in
some circumstances the nature of a parent's efforts, duties and contributions
to the needs of the family for housekeeping or other family-related purposes
during visitation could qualify as a form of “self-employed occupation”
pursuant to the statute. We also stress
that this determination should not be governed by the label of the parent's
right (for example, “child care,” “custody,” “placement” or “visitation”), but
rather by a substantive analysis of the person's activities and contributions
to the family's needs while exercising such right.
An
examination of the legislative history of subsec. (1)(c) of § 303.08, Stats., lends support to our
interpretation.[3] When originally enacted as § 56.08, Stats., 1959, the statute provided:
Any
person sentenced to county jail ¼ may be granted the privilege of leaving the jail during
necessary and reasonable hours for any of the following purposes ¼:
¼.
(b)
Working at his employment;
(c) Conducting his own business or other
self-employed occupation including, in the case of a woman, housekeeping
and attending the needs of her family ¼.
See 1959
S.B. 488, Laws of 1959, ch. 504, § 3 (emphasis added).[4] Thus, from the very inception, the statutes
governing release from probation-ordered confinement have clearly envisioned
“housekeeping and attending the needs of the family” as a form of a
“self-employed occupation.”
We
hold that pursuant to § 303.08(1), Stats.,
the trial court may, in the proper exercise of discretion, permit release from
probation confinement for any of the purposes recited in the statute, including
visitation. However, if release during
visitation periods is sought, the probationer must establish that he or she
performs or provides services qualifying as “housekeeping and attending the
needs of the person's family” during such visitation periods.
In
this case, Timmerman failed on a threshold basis to provide the trial court
with any information on this question.
Thus, the court did not misuse its discretion when it denied Timmerman's
request. And, even if Timmerman had
provided such information, it was still within the court's discretion whether
to allow such release.
By
the Court.—Order affirmed.
[1] The trial court
placed Timmerman on probation pursuant to § 973.09 (1) and (4), Stats.
Section 973.09(4) permits a trial court to confine a defendant to the
county jail for a period not to exceed one year and grant release privileges
pursuant to § 303.08, Stats. A defendant confined to county jail as a
condition of probation and granted release privileges pursuant to § 973.09 does
not serve a sentence and should not be confused with those who receive Huber
law privileges under § 303.08 and serve a sentence. See Yingling v. State, 73 Wis.2d 438, 440,
243 N.W.2d 420, 421 (1976).
[2] While this
statement comes close to confessing error, the State never expressly makes such
a concession.