State v. Carli , 2 Wis. 2d 429 ( 1957 )

The following opinion was filed February 4, 1958:

Fairchild, J.

(on motion for rehearing). Defendant asserts that he was deprived of the right to be confronted with the witnesses against him. Apparently he objects to the consideration by the circuit court of a report of a presentence investigation made at the court’s request by the state department of public welfare. This proposition was not considered in the opinion previously filed because it was not referred to either in the brief or on oral argument.

The trial closed March 15, 1956, except that time was allowed for submission of briefs, and sentence was imposed at Hurley on June 26th. The presentence investigation had been made and the report submitted to the court before that date. Defendant moved that the judgment be set aside challenging, among other things, the propriety of the court’s consideration of the report. The court denied the motion and filed a memorandum reciting the facts. These are not challenged by defendant and the memorandum makes it clear that the presentence investigation was not requested or made until after the court’s decision as to defendant’s guilt had been dictated to the court reporter and transcribed, although not filed until June 26th.

The court stated that he had handled the matter in this way “so that it would not be necessary for the defendant to appear at Hurley for pronouncement of judgment and then have a presentence investigation ordered and the defendant have to make an additional trip from Milwaukee.” He also stated that between March 15th and June 26th, he was completing the regular jury terms in his own circuit and fulfilling previous commitments to- try cases in two other circuits.

In relying upon the right of confrontation, defendant overlooks the distinction between the determination of guilt and the exercise of the court’s discretion as to probation or extent of punishment. The right “to meet the witnesses face to face” guaranteed by sec. 7, art. I, Wis. Const., and the standards of fair trial embraced within the concept of due process of law in the Fourteenth amendment, U. S. Const., must be fully respected where the question for consideration is the guilt or innocence of the accused. Once the defendant has been found guilty, he is “subject to whatever loss of liberty the legislature has prescribed for his crime.” State exrel. Volden v. Haas (1953), 264 Wis. 127, 130, 58 N. W. (2d) 577. That consideration by the court of a confidential report of presentence investigation does not violate a defendant’s constitutional rights was settled for Wisconsin in the Volden Case and settled with respect to the due-process clause in Williams v. New York (1949), 337 U. S. 241, 69 Sup. Ct. 1079, 93 L. Ed. 1337.

There appears to be no express statutory provision for a presentence investigation in the instant case. There was one in sec. 340.485, now sec. 959.15, Stats., relating to sex crimes, considered in the Volden Case. Other provisions are found in sec. 54.11, under the Youth Service Act and sec. 57.025 relating to the municipal and district courts in Milwaukee county. But we view a request for a report, and consideration of it if available, as discretionary with the court, even in the absence of statute. The opinion in Williams v. New York, supra, contains a discussion of the theory and usefulness of presentence procedure.

Federal Rules of Criminal Procedure, Rule 32 (c), 18 USCA, p. 350, governs presentence investigations and reports in United States courts. We note that it provides: “The report shall not be submitted to the court or its contents disclosed to anyone unless the defendant has pleaded guilty or has been found guilty.” While it is clear in the instant case that the trial judge had made his determination of defendant’s guilt before obtaining the report, and further that the judge avoided a burden for the defendant as well as for the court in not calling the defendant back to Hurley until the report had been made and the court was ready to pronounce sentence, it would ordinarily be better practice to make formal pronouncement of the finding of guilt before obtaining the report, at least in the absence of express consent by the defendant.

By the Court. — Motion for rehearing denied.

Martin, C. J., took no part.