COURT OF APPEALS DECISION DATED AND RELEASED October 5, 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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No.
95-1471-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
MICHAEL J. RICE,
Defendant-Appellant.
APPEAL from an order of
the circuit court for La Crosse County:
MICHAEL J. MULROY, Judge. Affirmed.
GARTZKE, P.J.[1] Michael Rice appeals from an order amending
his judgment of conviction for disorderly conduct, § 947.01, Stats., by extending probation for one
year and imposing fourteen days in the county jail. He contends that he was denied due process of law because he did
not have the proper opportunity to cross-examine witnesses, or present
witnesses or other evidence, and because he did not have fair warning before
the hearing of the proposed modifications to the conditions of his probation
and the reasons therefor. We affirm.
On April 25, 1994, Rice
was sentenced for disorderly conduct and placed on probation for one year with
the condition of fifty hours of community service.[2] The trial court later set March 7, 1995, for
a hearing to consider Rice's probation, but continued the hearing to March 22,
1995. Rice had subpoenaed a probation
officer, Laura Gray, to appear at the March 7 hearing but she did not appear at
the March 22 hearing. Probation officer
Cindy Ellefson reviewed Rice's probation in a letter submitted to the trial
court dated March 17, 1995. Rice
asserts that the record contains no indication that he received a copy of the
letter before the March 22 hearing.
We reject Rice's claim
that he was not afforded due process because he could not have a subpoenaed
witness testify. The record of the
hearing shows that Rice's subpoenaed witness was not present, but he failed to
seek a continuance for the purpose of examining her under oath. He has waived that objection. See State v. Gollon,
115 Wis.2d 592, 604, 340 N.W.2d 912, 917 (Ct. App. 1987) (failure to renew
severance motion waived that ground for error). Rice also asserts that because probation officer Ellefson made
statements to the court not under oath, he was denied due process. Since the record contains no objections to
Ellefson's unsworn statement to the court, Rice has waived the ground for
error. Section 901.03(1)(a), Stats.
When Rice's counsel inquired whether the court was making a finding that
cause existed to extend probation, Rice did not request the opportunity to put
in evidence, and he made no offer of proof.
He therefore failed to preserve his objection to the court's procedure
for purposes of this appeal. Section
901.03(1)(b).
Although Rice complained
that he did not receive a copy of Ellefson's letter before the hearing, the
copy of that letter appended to his brief bears a stamp dated March 20,
1995. The State asserts on the basis of
that stamp date that Rice had adequate notice.
Because Rice does not undertake to refute in his reply brief that claim,
we assume he concedes the point. Charolais
Breeding Ranches Ltd. v. FPC Securities, 90 Wis.2d 97, 109, 279 N.W.2d
493, 499 (Ct. App. 1979). Moreover, he
made no objection to an inadequate notice of the hearing, and he therefore
cannot raise it now. See Gollon,
115 Wis.2d at 604, 340 N.W.2d at 917.
Finally, at the hearing
Rice questioned the accuracy of a urine test result regarding his marijuana
usage. Because the probation officer
did not appear, Rice could not examine the process by which his urine sample
was collected for testing or show that the test was tainted. However, at that same hearing, the State
relied solely on his admitted alcohol use and his refusal to participate in
alcohol and drug assessment. Because
the State did not rely on Rice's marijuana usage as a reason for modification
of probation, the error, if error it was, was harmless.
We conclude that Rice
has shown no basis for reversing the order from which he appeals.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.