2019 WI 48 

SUPREME COURT OF WISCONSIN

CASE NO.: 2017AP141-CR 

COMPLETE TITLE: State of Wisconsin, 

 Plaintiff-Respondent, 

 v. 

Dennis L. Schwind, 

 Defendant-Appellant-Petitioner. 

REVIEW OF DECISION OF THE COURT OF APPEALS 

OPINION FILED: May 3, 2019 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: February 21, 2019 

SOURCE OF APPEAL: 

 COURT: Circuit 

 COUNTY: Walworth 

 JUDGE: David M. Reddy 

 

JUSTICES: 

 CONCURRED: DALLET, J. concurs and dissents, joined by A.W. 

BRADLEY, J. (opinion filed). 

 DISSENTED: 

 NOT PARTICIPATING: ABRAHAMSON, J. did not participate. 

 

ATTORNEYS: 

For the defendant-appellant-petitioner, there were briefs 

filed by Andrew R. Walter and Walter Law Offices LLC, Elkhorn. 

There was an oral argument by Andrew R. Walter. 

For the plaintiff-respondent, there was a brief filed by 

Kevin M. LeRoy, deputy solicitor general, with whom on the brief 

was Misha Tseytlin, solicitor general, and Brad D. Schimel, 

attorney general. There was an oral argument by Kevin M. LeRoy. 
2019 WI 48

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2017AP141-CR 

(L.C. 

No. 

2000CF407) 

STATE OF WISCONSIN : IN SUPREME COURT 

State of Wisconsin,

 Plaintiff-Respondent, 

 v. 

Dennis L. Schwind, 

 Defendant-Appellant-Petitioner. 

FILED 

MAY 3, 2019 

Sheila T. Reiff 

Clerk of Supreme Court 

REVIEW of a decision of the Court of Appeals. Affirmed. 

¶1 PATIENCE DRAKE ROGGENSACK, C.J. We review an 

unpublished summary disposition order of the court of appeals,1

which affirmed the circuit court's2 order denying Dennis L. 

Schwind's motion for early termination of probation. Schwind 

asserts that the Wisconsin Constitution gives circuit courts the 

inherent authority to reduce or terminate a term of probation 

 

1 State v. Schwind, No. 2017AP141-CR, unpublished order 

(Wis. Ct. App. Feb. 14, 2018). 

2 The Honorable David M. Reddy of Walworth County presided. 
No. 2017AP141-CR 

2 

for cause. He argues that Wis. Stat. § 973.09(3)(d),3 which 

directs the circuit court that it may reduce or terminate a term 

of probation if six requirements are met, cannot restrict the 

court's inherent authority to reduce or terminate a term of 

probation for cause. 

¶2 We conclude that the circuit court does not have 

inherent authority to grant Schwind's motion for early 

termination of probation. Inherent authority of courts consists 

of only those powers that are necessary for the judiciary to 

accomplish its constitutionally mandated functions and preserve 

its role as a coequal branch of government. Probation is a 

statutory creation, and the power to reduce or terminate a term 

of probation is not necessary for courts to accomplish their 

constitutionally mandated functions. Therefore, Wisconsin 

courts do not have the inherent authority to reduce or terminate 

a period of probation. Accordingly, we affirm the decision of 

the court of appeals. 

I. BACKGROUND 

¶3 In 2001, Schwind pled guilty to first-degree sexual 

assault of a child, incest with a child, and engaging in 

repeated acts of sexual assault of the same child. Additional 

counts of incest with a child and engaging in repeated acts of 

sexual assault with a child were dismissed but read-in at 

sentencing. Schwind's guilty plea required him to register as a 

 

3 All subsequent references to the Wisconsin Statutes are to 

the 2017-18 version unless otherwise indicated. 
No. 2017AP141-CR 

3 

sex offender under Wis. Stat. § 301.45, and the charges exposed 

him to a maximum sentence of over 100 years in prison. The 

court accepted Schwind's guilty plea and imposed a 10-year 

prison sentence, but immediately stayed the sentence and placed 

him on probation for a term of 25 years. The conditions of his 

probation included one year of jail time with work release 

privileges. 

¶4 In 2002, Schwind violated the conditions of his 

probation. He had physical contact with his victim, had sexual 

contact with an animal, had unsupervised contact with children, 

and failed a sex offender treatment program. The State did not 

initiate probation revocation proceedings, but instead requested 

that he serve another one-year term in the Walworth County Jail. 

Schwind accepted the State's request and served another one-year 

jail term. In 2014, after serving 13 years of his 25-year 

probation term, Schwind filed a motion for early termination of 

probation. 

¶5 Wisconsin Stat. § 973.09(3)(d) directs the circuit 

court in regard to how it may "modify a person's period of 

probation and discharge the person from probation" when six 

requirements are met: 

1. The department petitions the court to 

discharge the person from probation. 

2. The probationer has completed 50 percent of 

his or her period of probation. 

3. The probationer has satisfied all conditions 

of probation that were set by the sentencing court. 
No. 2017AP141-CR 

4 

4. The probationer has satisfied all rules and 

conditions of probation that were set by the 

department. 

5. The probationer has fulfilled all financial 

obligations to his or her victims, the court, and the 

department, including the payment of any fine, 

forfeiture, fee or surcharge, or order of restitution. 

6. The probationer is not required to register 

[as a sex offender]. 

Schwind did not, and could not, argue that he had satisfied all 

six of these requirements. He therefore could not argue that 

Wis. Stat. § 973.09(3)(d) permitted the circuit court to reduce 

his probation term. 

¶6 Schwind instead argued that his petition for early 

termination of probation relied on the circuit court's inherent 

authority. He argued that notwithstanding the requirements of 

Wis. Stat. § 973.09(3)(d), circuit courts have the inherent 

authority to reduce or terminate a term of probation, and a 

statute passed by the legislature cannot take that away. The 

State opposed the motion on the grounds that Schwind did not 

meet the requirements of § 973.09(3)(d), and therefore was not 

eligible for early termination of his probation. 

¶7 The circuit court denied Schwind's motion in January 

2015. In doing so, the circuit court expressed concern that 

"once you start utilizing some of those inherent powers, that's 

a slippery slope that this court is not willing to go down." 

However, the circuit court did not take a position on whether 

circuit courts have the inherent authority to terminate 

probation notwithstanding Wis. Stat. § 973.09(3)(d). Instead, 
No. 2017AP141-CR 

5 

the circuit court decided that even if it did have the inherent 

authority to terminate probation early, it would decline to 

exercise it in this case. 

¶8 In May 2016, Schwind filed a motion for 

reconsideration, again arguing that the circuit court has the 

inherent authority to terminate probation early and should do so 

in his case. The circuit court denied Schwind's motion. This 

time, the circuit court held that it did not have the inherent 

authority to reduce a term of probation. It pointed out that 

Wis. Stat. § 973.09(3)(d) "lists six requirements that must be 

met in order for a circuit court to discharge a probationer," 

and explained that "these six requirements, which function as 

conditions precedent to a probationer discharge, would be 

meaningless if a circuit court had broad discretionary 

authority . . . to reduce the length of probation for cause." 

¶9 The court of appeals affirmed in an unpublished 

summary disposition order. State v. Schwind, No. 2017AP141-CR, 

unpublished order (Wis. Ct. App. Feb. 14, 2018). The court of 

appeals did not decide whether circuit courts have the inherent 

authority to reduce or terminate a term of probation. Id. at 4. 

Instead, the court of appeals relied on its previous decision in 

State v. Dowdy, 2010 WI App 158, 330 Wis. 2d 444, 792 N.W.2d 230 

(Dowdy I), aff'd, State v. Dowdy, 2012 WI 12, 338 Wis. 2d 565, 

808 N.W.2d 691 (Dowdy II). 

¶10 In Dowdy I, the court of appeals "did not decide 

whether a circuit court possesses the inherent authority to 

reduce a defendant's probation period." Schwind, No. 2017AP141-
No. 2017AP141-CR 

6 

CR, unpublished order at 3 (citing Dowdy I, 330 Wis. 2d 444, 

¶31). However, the court of appeals opined that if circuit 

courts were to have inherent authority to modify probation, it 

could be exercised only in the same limited situations in which 

a circuit court has the inherent authority to reduce a 

sentence: clear mistake, a new factor, or undue harshness or 

unconscionability. Schwind, No. 2017AP141-CR, unpublished order 

at 3 (citing Dowdy I, 330 Wis. 2d 444, ¶28). The court of 

appeals decided that none of these limited circumstances existed 

in Schwind's case; therefore, there was no need actually to 

decide whether a court's inherent authority to reduce a criminal 

sentence applies to a probation order. Schwind, No. 2017AP141-

CR, unpublished order at 4. We granted Schwind's petition for 

review, and now affirm the decision of the court of appeals. 

II. DISCUSSION 

A. Standard of Review 

¶11 This case requires us to determine whether circuit 

courts have the inherent authority to reduce or terminate a term 

of probation. "The issue of judicial authority is a question of 

law" that we review independently. State v. Henley, 2010 WI 97, 

¶29, 328 Wis. 2d 544, 787 N.W.2d 350. 

B. Inherent Authority of Courts 

¶12 The Wisconsin Constitution created a court system and 

expressly granted certain powers to Wisconsin's courts. See 

Wis. Const. art. VII. In addition to these expressly granted 

powers, our Constitution also grants courts "those [powers] that 

are necessary to enable courts to accomplish their 
No. 2017AP141-CR 

7 

constitutionally and legislatively mandated functions." Henley, 

328 Wis. 2d 544, ¶73 (citing State ex rel. Friedrich v. Dane 

Cty. Cir. Ct., 192 Wis. 2d 1, 16, 531 N.W.2d 32 (1995)). The 

powers that are not expressly granted but are necessary for the 

courts to function as courts are found within the courts' 

inherent authority. See, e.g., id. 

¶13 Inherent authority is implicit in the Wisconsin 

Constitution. When the framers created the judiciary in Article 

VII, they "had in mind that governmental institution known to 

the common law possessing powers characterizing it as a court 

and distinguishing it from all other institutions." In re 

Kading, 70 Wis. 2d 508, 518, 235 N.W.2d 409 (1975). For this 

reason, the creation of a court system necessarily includes the 

conferral of those inherent powers that "from time 

immemorial . . . have been conceded to courts because they are 

courts." Barland v. Eau Claire Cty., 216 Wis. 2d 560, 565, 575 

N.W.2d 691 (1998). Stated otherwise, the Wisconsin Constitution 

did not devise a new entity called a "court"; rather, by using 

the word "court," it was referring to the institution known as a 

court, together with the powers it was understood at common law 

to necessarily possess. Therefore, we generally consider 

historical practices when determining whether a certain power is 

inherent in the judiciary. See, e.g., id. at 592 (explaining 

that the inherent authority of the courts may "spring[] from 

historical custom"). 

¶14 Inherent authority of the court derives from the 

doctrine of separation of powers, and allows the judiciary to 
No. 2017AP141-CR 

8 

preserve its role as a coequal branch of government. "The 

Wisconsin [C]onstitution creates three separate coordinate 

branches of government, no branch subordinate to the other, no 

branch to arrogate to itself control over the other except as is 

provided by the constitution, and no branch to exercise the 

power committed by the constitution to another." Friedrich, 192 

Wis. 2d at 13 (citing State v. Holmes, 106 Wis. 2d 31, 42, 315 

N.W.2d 703 (1982)). For this reason, issues regarding the scope 

of inherent authority carry separation of powers concerns, as 

defining the inherent authority of courts either too narrowly or 

too broadly has the potential to do harm to the separation of 

powers among the branches of government. If the inherent 

authority of courts is defined too broadly, we risk infringing 

upon the authority of the legislative or executive branches by 

replacing their policy preferences with our own. See, e.g., 

Henley, 328 Wis. 2d 544, ¶75 (cautioning courts against invoking 

inherent authority "to do whatever they think is 'fair' at any 

given point in time."). If defined too narrowly, however, we 

risk impeding the judiciary's ability to carry out its 

constitutionally mandated functions by giving away portions of 

our inherent authority to the other branches of government. 

¶15 Recognizing the need for caution in this area, we are 

careful to invoke inherent authority if, but only if, invocation 

is necessary to "maintain [the courts'] dignity, transact their 

business, [and] accomplish the purposes of their existence." 

Id., ¶73 (citations omitted). In other words, "[a] power is 

inherent when it 'is one without which a court cannot properly 
No. 2017AP141-CR 

9 

function.'" Id. (citing State v. Braunsdorf, 98 Wis. 2d 569, 

580, 297 N.W.2d 808 (1980)). 

¶16 With these concerns in mind, "Wisconsin courts have 

generally exercised inherent authority in three areas: (1) to 

guard against actions that would impair the powers or efficacy 

of the courts or judicial system; (2) to regulate the bench and 

bar; and (3) to ensure the efficient and effective functioning 

of the court, and to fairly administer justice." Henley, 328 

Wis. 2d 544, ¶73 (citing City of Sun Prairie v. Davis, 226 

Wis. 2d 738, 749-50, 595 N.W.2d 635 (1999)). Inherent authority 

exercised in all of these areas is necessary to enable the 

judiciary to carry out its constitutionally mandated functions 

as a coequal branch of government. See Friedrich, 192 Wis. 2d 

at 16. 

¶17 The first area in which courts have exercised inherent 

authority involves the internal operations of a court. Davis, 

226 Wis. 2d at 749. For example, courts have exercised their 

inherent authority to prevent the unilateral removal of judicial 

assistants pursuant to a collective bargaining agreement, 

Barland, 216 Wis. 2d at 566, and to refuse facilities that were 

inadequate to carry out a court's business. Davis, 226 Wis. 2d 

at 749 (citing In re Court Room, 148 Wis. 109, 119-20, 134 N.W. 

490 (1912)). This authority is necessary to preserve the 

efficacy of the court system and allow courts to carry out their 

constitutional duties. 

¶18 The second area, regulating the bench and bar, 

includes the inherent authority to discipline members of the 
No. 2017AP141-CR 

10 

bar, State ex rel. Fiedler v. Wis. Senate, 155 Wis. 2d 94, 103, 

454 N.W.2d 770 (1990), and to resolve disputes regarding 

representation of a client. Koschkee v. Evers, 2018 WI 82, ¶12, 

382 Wis. 2d 666, 913 N.W.2d 878. The inherent authority to 

regulate the bench and bar is necessary to preserve the 

judiciary's ability to perform its constitutional duties as a 

coequal branch of government. 

¶19 The third area in which courts have exercised inherent 

authority, and the area most relevant to this case, involves 

"ensuring that the court functions efficiently and effectively 

to provide the fair administration of justice." Davis, 226 

Wis. 2d at 749-50 (citation omitted). For example, courts have 

the inherent authority to hold a person in contempt for failing 

to appear, Smith v. Burns, 65 Wis. 2d 638, 645, 223 N.W.2d 562 

(1974), to appoint counsel for indigent parties in a child in 

need of protective services (CHIPS) proceeding, Joni B. v. 

State, 202 Wis. 2d 1, 10, 549 N.W.2d 411 (1996), and "to correct 

clerical errors at any time." State v. Prihoda, 2000 WI 123, 

¶17, 239 Wis. 2d 244, 618 N.W.2d 857. Without the ability to 

exercise inherent authority in this area, courts would not 

perform their constitutionally mandated functions. In all three 

of these areas, courts exercise inherent authority when 

necessary to allow them to function as courts. 
No. 2017AP141-CR 

11 

C. Sentencing and Probation 

¶20 We have previously recognized that sentencing is a 

constitutionally shared power among three branches of 

government, and that courts have the inherent authority to 

modify criminal sentences within certain narrowly defined 

limits. State v. Harbor, 2011 WI 28, ¶35, 333 Wis. 2d 53, 797 

N.W.2d 828; see also Hayes v. State, 46 Wis. 2d 93, 101, 175 

N.W.2d 625 (1970), overruled on other grounds by State v. 

Taylor, 60 Wis. 2d 506, 523, 210 N.W.2d 873 (1973). Schwind 

attempts to widen the scope of this aspect of inherent authority 

by framing it as the power to modify criminal dispositions more 

generally, thereby adding reduction and termination of probation 

to the judiciary's inherent authority. The problem with this 

framing is that the judiciary's power to sentence and its power 

to order probation are distinct powers that come from different 

sources. The judiciary's sentencing power existed at common law 

and is a part of the Wisconsin Constitution; the power to impose 

probation, on the other hand, is a statutory creation. 

Probation, as opposed to sentencing, was not incorporated into 

the Wisconsin Constitution as a power of the judiciary and it is 

not necessary for the judiciary to perform its constitutionally 

mandated functions. 

¶21 Sentencing in Wisconsin is an area of shared power 

among the three branches, as the inherent authority of courts to 

impose criminal sentences existed at common law prior to the 

adoption of the Wisconsin Constitution. "It is the function of 

the legislature to prescribe the penalty and the manner of its 
No. 2017AP141-CR 

12 

enforcement; the function of the courts to impose the penalty; 

while it is the function of the executive to grant paroles and 

pardons." State v. Horn, 226 Wis. 2d 637, 646, 594 N.W.2d 772 

(1999); see also State v. Borrell, 167 Wis. 2d 749, 769, 482 

N.W.2d 883 (1992) (explaining that at common law, Wisconsin 

courts "possessed the inherent and discretionary power to punish 

violations of law in the absence of a statute prescribing the 

punishment."). The judiciary's power at common law went even 

further than simply sentencing those convicted of violating 

criminal statutes; in some cases, courts could punish offenders 

for "[c]ommon-law crimes" in the absence of any violation of a 

criminal statute. See id. 

¶22 Sentencing was therefore understood to be a 

constitutionally shared power among the three branches in 1848, 

when the Wisconsin Constitution was ratified. See id. The 

inherent authority to sentence a convicted criminal was 

therefore implicitly included in the Wisconsin Constitution by 

the creation of a "court" system. See, e.g., Kading, 70 Wis. 2d 

at 518 (explaining that by creating "courts," the Wisconsin 

Constitution created the "governmental institution known to the 

common law possessing powers characterizing it as a court and 

distinguishing it from all other institutions."). 

¶23 Probation, on the other hand, is a newer concept. It 

is not something Wisconsin courts had the power to do at common 

law, but is instead a statutory creation. See, e.g., State ex 

rel. Zabel v. Milwaukee Cty. Mun. Ct., 179 Wis. 195, 201, 190 

N.W. 121 (1923) (the legislature's passage of a probation 
No. 2017AP141-CR 

13 

statute in 1909 "confer[red] a new power upon the court——the 

power to suspend the execution of the sentence and place the 

defendant on probation."); Horn, 226 Wis. 2d at 648 ("[A] court 

could not place a defendant on probation" in the absence of a 

statute authorizing it to do so.). 

¶24 Probation is a possible disposition for an individual 

who has been convicted of a crime. Wis. Stat. § 973.09(1)(a); 

see also id. at 647. It is not a sentence; it is an alternative 

to sentencing. Id. at 648. Probation can be understood as 

"supervised, conditional freedom." Neil P. Cohen, The Law of 

Probation and Parole § 1:2 (2d ed.). In lieu of imposing a 

criminal sentence, the legislature has chosen to allow 

sentencing courts to either withhold sentencing, or impose a 

sentence but stay its execution, and instead release the 

individual into the community subject to "any conditions which 

appear to be reasonable and appropriate" to the court.4 Wis. 

Stat. § 973.09(1)(a). 

¶25 We have recognized that "[p]robation is a privilege 

extended to a convict by the grace of the state. It is not a 

right." State ex rel. Greer v. Wiedenhoeft, 2014 WI 19, ¶39, 

353 Wis. 2d 307, 845 N.W.2d 373; see also Edwards v. State, 74 

Wis. 2d 79, 83, 246 N.W.2d 109 (1976) ("Probation is not a 

matter of right, rather it is a privilege."). "The dual goals 

 

4 Reasonable and appropriate conditions of probation may, in 

the court's discretion, include a period of confinement not to 

exceed one year. Wis. Stat. § 973.09(4)(a). 
No. 2017AP141-CR 

14 

of probation are 'the rehabilitation of those convicted of crime 

and the protection of the state and community interest.'" State 

v. Sepulveda, 119 Wis. 2d 546, 554, 350 N.W.2d 96 (1984) 

(citation omitted). By authorizing courts to give probation in 

lieu of a criminal sentence, the legislature gave the courts a 

new power to extend the mercy of the state when it decides that 

"supervised, conditional freedom" will best rehabilitate a 

defendant while adequately protecting the interests of the state 

and the community. 

¶26 In Horn, 226 Wis. 2d at 647, we said probation is 

"within powers constitutionally granted to the judiciary." 

However, this general statement must be understood in context. 

As mentioned earlier, it is the role of the legislature to 

prescribe penalties, whereas it is the role of the judiciary to 

impose penalties within the legislature's prescribed range. For 

this reason, we recognized in Horn that "the legislature has 

constitutional authority to offer probation as an alternative to 

sentencing," and that "[w]ithout such statutory authority, a 

court could not place a defendant on probation." Id. at 648. 

¶27 Therefore, while sentencing and probation have both 

been described as shared powers with the legislature, the source 

of the judiciary's power in these two areas is different. 

Sentencing is a shared power because it comes within the 

inherent authority of the judiciary, implicit in the Wisconsin 

Constitution due to its incorporation of common law as it 

existed in 1848. Given this deeply rooted historical practice, 

we have recognized that courts have inherent authority to modify 
No. 2017AP141-CR 

15 

sentences within certain narrowly defined limits. See Harbor, 

333 Wis. 2d 53, ¶35 (citing State v. Hegwood, 113 Wis. 2d 544, 

546, 335 N.W.2d 399 (1983)). 

¶28 In contrast, probation is a shared power not because 

it is a common-law judicial power that was incorporated into the 

Wisconsin Constitution, but only because the legislature chose 

to permit it. While courts had the power to impose sentences at 

common law even in the absence of a legislatively created 

sentencing range, Borrell, 167 Wis. 2d at 769, courts have never 

had the power to impose probation without statutory 

authorization. The legislature could eliminate probation 

completely if it saw fit, Horn, 226 Wis. 2d at 648, because 

probation "was unknown to Wisconsin law" prior to its statutory 

creation in 1909. Drinkwater v. State, 69 Wis. 2d 60, 68-69, 

230 N.W.2d 126 (1975). Probation therefore could not have been 

incorporated into the Wisconsin Constitution as a power that 

"from time immemorial has been conceded to courts because they 

are courts," and is not necessary for courts to perform their 

constitutionally mandated functions. 

¶29 This conclusion is confirmed because reducing a term 

of probation does not fit within any of the three areas in which 

courts have traditionally exercised inherent authority. 

Regarding the first area, reducing or terminating a period of 

probation does not guard against any action that would impair 

the efficacy of the court system. As mentioned earlier, this 

area involves the court's internal operations, which has 

included the inherent authority to prevent the unilateral 
No. 2017AP141-CR 

16 

removal of judicial assistants. See Barland, 216 Wis. 2d at 

566. Reducing a probation term does not guard against actions 

that would impair the efficacy of the courts. Second, the power 

to reduce a probation term is not related to regulating the 

bench and bar. 

¶30 Third, the power to reduce probation terms is not 

necessary to ensure "the efficient and effective functioning of 

the court," or "to fairly administer justice." Henley, 328 

Wis. 2d 544, ¶73. As mentioned earlier, the powers exercised in 

this area, such as appointing counsel to indigent parties or 

correcting clerical errors,5 are necessary to enable the court to 

effectively and efficiently resolve the disputes before it. In 

contrast, the power to reduce a term of probation can come into 

existence only after the circuit court has resolved the matter 

before it. A court that has placed a defendant on probation has 

 

5 Our conclusion that courts do not have the inherent power 

to reduce or terminate a term of probation does not mean that 

courts are unable to correct clerical errors in judgments of 

probation. As we have previously explained, "the law is clear 

that a court has the power to correct clerical errors at any 

time." State v. Prihoda, 2000 WI 123, ¶17, 239 Wis. 2d 244, 618 

N.W.2d 857. Correcting a clerical error in a judgment does not 

constitute a modification of that judgment; rather, it is simply 

a correction of the record to reflect the judgment the circuit 

court actually rendered. See, e.g., Hoffman v. State, 88 Wis. 

166, 174, 59 N.W. 588 (1894) ("the court has power, after the 

term, to correct a mistake in the entry of its judgment, so as 

to make the record conform to the judgment actually 

pronounced"); accord, Prihoda, 239 Wis. 2d 244, ¶17 n.9. For 

this reason, courts have always had, and continue to have, the 

inherent authority to correct clerical errors in their 

judgments. 
No. 2017AP141-CR 

17 

either chosen to withhold sentencing, or has chosen to impose a 

sentence and stay its execution. Wis. Stat. § 973.09(1)(a). In 

either case, "[t]he adversary system has terminated and the 

administrative process, vested in the executive branch of the 

government, directed to the correctional and rehabilitative 

processes of the parole and probation system has been 

substituted in its place." Horn, 226 Wis. 2d at 650. 

¶31 Likewise, the power to reduce or terminate a term of 

probation is not necessary to fairly administer justice. As 

mentioned earlier, "[p]robation is a privilege extended to a 

convict by the grace of the state. It is not a right." 

Wiedenhoeft, 353 Wis. 2d 307, ¶39. This said, while the power 

to reduce a criminal sentence in limited circumstances is 

necessary for courts to fairly administer justice, the same is 

not true of the power to reduce probation. An individual who 

has been erroneously sentenced based on the circuit court's 

ignorance of a new factor has been unjustly given a greater 

punishment than he is due. In contrast, an individual placed on 

probation is already receiving the discretionary privilege of 

the State's mercy, and cannot similarly argue that the failure 

to extend him more mercy is a failure to fairly administer 

justice. 

¶32 The legislature has the power to completely eliminate 

the availability of probation without infringing upon the 

courts' constitutional duty to fairly administer justice. It 

follows that the legislature may place reasonable limits on the 

availability of probation without interfering with the fair 
No. 2017AP141-CR 

18 

administration of justice. "The fair administration of justice 

is not a license for courts, unconstrained by express statutory 

authority, to do whatever they think is 'fair' at any given 

point in time." Henley, 328 Wis. 2d 544, ¶75. 

¶33 For these reasons, we conclude that courts do not have 

the inherent authority to reduce a term of probation. In doing 

so, we continue construing the judiciary's inherent authority 

narrowly. See id., ¶74 n.28 ("early cases invoked inherent 

authority more often because the procedural rules governing 

courts were somewhere between non-existent and non-exhaustive. 

See generally Thomas O. Main, Judicial Discretion to Condition, 

79 Temp. L. Rev. 1075, 1111–15 (2006) (noting generally that the 

scope of a court's inherent authority is inversely related to 

the breadth of procedural statutes and rules the court is 

subject to). As federal and state courts became subject to more 

comprehensive rules [], the need for inherent authority 

lessened."). 

¶34 In this case, Schwind's petition for early termination 

of probation is not based on the circuit court's statutory 

authority to discharge him from probation under Wis. Stat. 

§ 973.09(3)(d). It is undisputed that he has failed to satisfy 

at least three of the statutory requirements under this 

section. That is, the department of corrections did not 

petition the court to discharge him from probation; he violated 

the conditions of his probation; and he is required to register 

as a sex offender under Wis. Stat. § 301.45. He has instead 

asked the circuit court to use its inherent authority to 
No. 2017AP141-CR 

19 

terminate his probation early. As we have concluded, however, 

circuit courts have no such power. Section 973.09 provides the 

sole basis for a circuit court's power to reduce or terminate a 

term of probation. Because probation was created by statute and 

Schwind cannot meet the requirements of § 973.09(3)(d), the 

circuit court has no power to terminate his probation. 

III. CONCLUSION 

¶35 We conclude that the circuit court does not have the 

power to grant Schwind's motion for early termination of 

probation. Inherent authority of courts consists of only those 

powers that are necessary for the judiciary to accomplish its 

constitutionally mandated functions and preserve its role as a 

coequal branch of government. Probation is a statutory 

creation, and the power to reduce or terminate a term of 

probation is not necessary for courts to accomplish their 

constitutionally mandated functions. Therefore, Wisconsin 

courts do not have the inherent authority to reduce or terminate 

a period of probation. Accordingly, we affirm the decision of 

the court of appeals. 

By the Court.—The decision of the court of appeals is 

affirmed. 

¶36 SHIRLEY S. ABRAHAMSON, J., withdrew from participation 

before oral argument. 
No. 2017AP141-CR.rfd 

1 

¶37 REBECCA FRANK DALLET, J. (concurring in part, 

dissenting in part). The questions before this court are 

twofold: (1) May a circuit court reduce a term of probation as 

an exercise of its inherent authority to efficiently and 

effectively function and to administer justice fairly? And, if 

so, (2) What limitations should be placed on a circuit court's 

inherent authority to reduce a term of probation? The majority 

opinion makes the sweeping conclusion that circuit courts have 

no inherent authority over probation because it is a statutory 

creation. I respectfully disagree. I conclude that a circuit 

court may reduce a term of probation as an exercise of its 

inherent authority to efficiently and effectively function and 

to administer justice fairly. I further conclude that the 

exercise of a circuit court's inherent authority should be 

circumscribed by the goals of probation: rehabilitating the 

defendant and protecting the public. 

I. A circuit court may reduce a term of probation as 

an exercise of its inherent authority to ensure 

the court functions efficiently and effectively 

and administers justice fairly. 

¶38 Our jurisprudence defines the inherent authority of a 

circuit court as the power that is "necessary to enable courts 

to accomplish their constitutionally and legislatively mandated 

functions." State v. Henley, 2010 WI 97, ¶73, 328 Wis. 2d 544, 

787 N.W.2d 350 (citing State ex rel. Friedrich v. Circuit Court 

for Dane Cty., 192 Wis. 2d 1, 16, 531 N.W.2d 32 (1995)). In 

other words, inherent authority is authority without which the 

court cannot function. Relevant to this case, circuit courts 
No. 2017AP141-CR.rfd 

2 

have exercised inherent authority "to ensure the efficient and 

effective functioning of the court, and to fairly administer 

justice." Henley, 328 Wis. 2d 544, ¶73. 

¶39 Within its function to administer justice, circuit 

courts are called upon to impose a disposition when sentencing 

persons convicted of crimes, whether that disposition results in 

a "sentence" of confinement or the imposition of a term of 

probation. See State v. Horn, 226 Wis. 2d 637, 647-48, 594 

N.W.2d 772 (1999) (reasoning that probation "is so closely 

related to sentencing as a possible criminal disposition" and 

that it falls within the shared powers of the executive, 

legislative, and judicial branches). Courts impose probation to 

further the goals of rehabilitating the defendant and protecting 

society without placing the defendant in prison. See State v. 

Gray, 225 Wis. 2d 39, 68, 590 N.W.2d 918 (1999). To accomplish 

these goals, circuit courts are empowered by Wis. Stat. 

§ 973.09(1)(a) to fashion the terms of probation to meet the 

rehabilitative needs of the defendant. State v. Hays, 173 

Wis. 2d 439, 445, 496 N.W.2d 645 (Ct. App. 1992). 

¶40 This court has held that inherent within the probation 

statute is a circuit court's continuing power to modify 

probationary terms to effectuate the goals of rehabilitation of 

the defendant and protection of society.1 State v. Sepulveda, 

 

1 According to the majority opinion's reasoning, the circuit 

court may for cause modify the terms of probation to discontinue 

all probationary services pursuant to Wis. Stat. § 973.09(3)(a), 

yet has no inherent authority to reduce the term of probation. 

This leads to an absurd result. 
No. 2017AP141-CR.rfd 

3 

119 Wis. 2d 546, 554, 350 N.W.2d 96 (1984). We have upheld the 

exercise of a circuit court's authority to modify the conditions 

of probation where the intent of probation is frustrated by a 

court-ordered condition not being met. Id. at 556; see also 

Gray, 225 Wis. 2d at 69. It is necessary, therefore, that 

circuit courts also have the inherent authority to reduce a term 

of probation once the intent of probation is satisfied. 

¶41 The majority opinion concludes that a circuit court 

has no inherent authority to reduce a term of probation for the 

following reasons: (1) probation is a statutory creation and 

therefore only the statute provides the parameters of how it may 

be imposed; (2) the source of the circuit court's inherent 

authority to impose probation or a sentence comes from the way 

in which those dispositions were imposed at common law; and (3) 

probation already confers upon an individual "the discretionary 

privilege of the State's mercy" such that no other mercy should 

be granted. Majority op., ¶31. I address each argument in 

turn. 

¶42 First and foremost, a statute cannot limit the circuit 

court's inherent authority. The issue of whether a circuit 

court has the statutory authority to reduce a term of probation 

was already decided by this court in State v. Dowdy, 2012 WI 12, 

¶4, 338 Wis. 2d 565, 808 N.W.2d 691 (Dowdy II). The unanswered 

question in Dowdy II was whether the circuit court has inherent 

authority to reduce a term of probation, the question now before 

us. To the extent that Wis. Stat. § 973.09 denominates the 

disposition of probation, it is no different than other 
No. 2017AP141-CR.rfd 

4 

dispositions enacted by the legislature, leaving to the courts 

the function of imposing those dispositions. See Horn, 226 

Wis. 2d at 646. While the majority opinion points to the fact 

that probation is within the powers that the courts share with 

the legislature, the fact that this power is shared does not 

diminish the circuit court's authority to accomplish its 

constitutionally and legislatively mandated functions and to 

exercise its inherent authority in doing so. See id. at 643 

("Each branch, separate but co-equal, is not subordinate to 

another, no branch to arrogate to itself control the other.") 

¶43 Second, the majority distinguishes the circuit court's 

inherent authority to reduce a sentence from that of probation 

based upon an assumption that only sentencing existed at common 

law. Although the genesis of our modern adult probation system 

was approved by the governor in 1909 and codified at Chapter 541 

of the Wisconsin Laws of 1909, there are historical analogues to 

modern day probation. See Edwin C. Conrad, Commentaries on the 

Wisconsin Law of Probation, 29 Am. Inst. Crim. L. & Criminology 

449 (1938-1939) (commenting that despite the lack of power, 

prior to the enactment of the present probation law, Wisconsin 

courts had repeatedly suspended sentences in order to give a 

defendant a chance to improve his or her behavior). Probation 

as a dispositional alternative is thus not necessarily, as the 

majority assumes, a "newer concept." Majority op., ¶23. 

¶44 Moreover, the common law authority of a court to 

modify a sentence was extremely limited and could only be 

exercised during the court's term, as defined by statute, and 
No. 2017AP141-CR.rfd 

5 

before the sentence had commenced. Hayes v. State, 46 Wis. 2d 

93, 105, 175 N.W.2d 625 (1970), abrogated on other grounds by 

State v. Taylor, 60 Wis. 2d 506, 523, 210 N.W.2d 873 (1973). In 

Hayes, this court held that the circuit court's inherent 

authority to amend, modify, and correct a judgment of sentence 

extends beyond the authority to do so at common law. Hayes, 46 

Wis. 2d at 101. Likewise, the circuit court's authority to 

reduce a term of probation should not be constricted by the 

common law imposition of that disposition. 

¶45 Finally, the majority concludes that a circuit court's 

ability to reduce a term of probation is not necessary to fairly 

administer justice because a probationer has already used up 

their allotment of mercy granted by the State by being placed on 

probation in the first place. Based on this reasoning, the 

majority would thus deny the circuit court inherent authority to 

reduce a term of probation even where a similarly situated 

individual seeking sentencing modification would be entitled to 

a sentence modification. For example, a person serving a prison 

sentence who cooperates with law enforcement may be entitled to 

a sentence modification whereas a probationer who cooperates 

would not. Likewise, applying the majority's reasoning, if the 

circuit court relied upon incorrect information at sentencing, a 

defendant sentenced to jail or prison would be entitled to a 

sentence modification whereas a defendant placed on probation 

would not. This is far from administering justice. I therefore 

dissent and conclude that a circuit court may reduce a term of 

probation as an exercise of its inherent authority to 
No. 2017AP141-CR.rfd 

6 

efficiently and effectively function and to administer justice 

fairly. 

II. The exercise of the circuit court's inherent 

authority to reduce a term of probation should be 

circumscribed by the dual purposes of probation: 

rehabilitation of the defendant and protection of 

the public. 

¶46 The inherent authority of a circuit court to reduce a 

term of probation must be limited to only the power necessary to 

ensure the efficient and effective functioning of the court and 

the fair administration of justice. The State argues, and the 

court of appeals agreed, that if this court recognizes a circuit 

court's inherent authority to reduce a term of probation, the 

circuit court should use the same criteria as a court evaluating 

a request to modify a sentence. State v. Dowdy, 2010 WI App 

158, ¶31, 330 Wis. 2d 444, 792 N.W.2d 230 (Dowdy I). To prevail 

on a motion to modify a sentence, a defendant must show either: 

a clear mistake or illegality, identification of a new factor, 

or undue harshness or unconscionability. Id., ¶28. A new 

factor is defined as one the circuit court could not or did not 

consider at sentencing but should now consider in order to 

fulfill the purpose of the original sentence. State v. 

Crochiere, 2004 WI 78, ¶14, 273 Wis. 2d 57, 681 N.W.2d 524, 

abrogated on other grounds by State v. Harbor, 2011 WI 28, 333 

Wis. 2d 53, 797 N.W.2d 828. 

¶47 Because sentencing and probation serve different 

purposes, constraining a circuit court's authority to reduce a 

term of probation in the same way that it modifies a sentence is 

an attempt to put a square peg in a round hole. There are four 
No. 2017AP141-CR.rfd 

7 

main purposes of sentencing: deterrence, rehabilitation, 

retribution, and segregation. Dowdy II, 338 Wis. 2d 565, ¶97 

(Abrahamson, C.J., dissenting). Finality after sentencing is 

crucial to assure that the purposes of retribution and 

deterrence are met. Crochiere, 273 Wis. 2d 57, ¶21; State v. 

Loomis, 2016 WI 68, ¶96, 371 Wis. 2d 235, 881 N.W.2d 749. The 

goal of sentence reduction is thus backward-looking in order to 

correct unjust sentences. See State v. Kluck, 210 Wis. 2d 1, 8-

9, 563 N.W.2d 468 (1997). A circuit court's consideration of 

rehabilitation as a reason to modify a sentence interferes with 

finality and payment of the debt a defendant owes to society and 

is therefore not a "new factor" for purposes of sentence 

modification. Id. at 7; see also Jones v. State, 70 Wis. 2d 62, 

72, 233 N.W.2d 441 (1975); State v. Wuensch, 69 Wis. 2d 467, 

477, 230 N.W.2d 665 (1975). 

¶48 In contrast, probation is forward-looking and 

therefore a defendant's actions post-sentencing necessarily 

inform any modification. The purpose of probation is to 

"protect the public from criminal conduct and to help the 

probationer become a useful member of society." Wagner v. 

State, 89 Wis. 2d 70, 77, 277 N.W.2d 849 (1979). Once 

rehabilitation is achieved, the purposes of probation are served 

and its term should end. Because of the differing purposes of 

sentencing and probation, constraining a circuit court's 

authority to reduce probation in the same way that it modifies a 

sentence would not further the purposes of probation and would 
No. 2017AP141-CR.rfd 

8 

provide no meaningful ability for a defendant to seek a 

reduction in the term of probation. 

¶49 Schwind argues that, similar to the circuit court's 

ability to modify the terms and conditions of probation, a 

circuit court's inherent authority to reduce a term of probation 

should be circumscribed by the "for cause" standard. See Wis. 

Stat. § 973.09(3)(a) ("Prior to the expiration of any probation 

period, the court, for cause and by order, may extend probation 

for a stated period or modify the terms and conditions 

thereof.") "[F]or cause," however, must be defined narrowly to 

provide guidance to the circuit court and limit the potential 

for abuse. See Dowdy I, 330 Wis. 2d 444, ¶27 (noting that a 

circuit court's inherent authority is "limited"). A requirement 

that a defendant show by clear and convincing evidence that the 

goals of probation have been met adequately circumscribes a 

circuit court's inherent authority to reduce a term of probation 

and furthers the efficiency and effectiveness of the courts and 

the fair administration of justice. 

¶50 As of June 30, 2018, 66,196 people were on community 

supervision in the state of Wisconsin. See Division of 

Community Corrections, Wis. DOC, 2018 A Year in Review (Dec 

2018), https://doc.wi.gov/DataResearch/DataAndReports/DCCYearIn 

Review.pdf. Over 32 million dollars was spent in 2018 alone to 

purchase products or services for the benefit of these 

individuals. Id. Once the dual goals of probation are met, it 

is not only in the interest of each individual defendant, but 

also in the interest of society, to reduce a defendant's term of 
No. 2017AP141-CR.rfd 

9 

probation thereby freeing up precious resources to better serve 

others in our community. 

¶51 If the inherent authority of the courts is defined too 

narrowly, "we risk impeding the judiciary's ability to carry out 

its constitutionally mandated functions by giving away portions 

of our inherent authority to the other branches of government." 

Majority op., ¶14. The majority eliminates a circuit court's 

inherent authority to reduce a term of probation and, in so 

doing, gives away necessary power of the court to administer 

justice fairly. I conclude that in order to efficiently and 

effectively function and to fairly administer justice, a circuit 

court has the inherent authority to reduce a term of probation 

where a defendant has been rehabilitated and therefore the goals 

of the probation disposition have been achieved. 

¶52 Lastly, I concur in part in affirming the circuit 

court's decision. The circuit court stated that even if it had 

the inherent authority to reduce Schwind's term of probation, 

early termination of probation was not warranted in this case. 

In making this determination, the circuit court did not 

erroneously exercise its discretion. Therefore, I concur with 

the majority opinion in affirming the circuit court's decision 

to deny Schwind's motion to reduce his term of probation. 

¶53 For the foregoing reasons, I concur in part and dissent 

in part. 

¶54 I am authorized to state that Justice ANN WALSH 

BRADLEY joins this concurrence/dissent. 
No. 2017AP141-CR.rfd 

1