                                                                    2014 WI 19

                  SUPREME COURT            OF    WISCONSIN
CASE NO.:               2011AP2188
COMPLETE TITLE:         State of Wisconsin ex rel. Ardonis Greer,
                                   Petitioner-Respondent-Petitioner,
                             v.
                        Wayne J. Wiedenhoeft, Administrator, Division of
                        Hearings
                        and Appeals,
                                   Respondent-Appellant.


                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                           Reported at 344 Wis. 2d 639, 825 N.W.2d 497
                                   (Ct. App. 2012 – Published)
                                     PDC No.: 2012 WI App 122

OPINION FILED:          April 17, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          October 22, 2013

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Racine
   JUDGE:               Charles H. Constantine

JUSTICES:
   CONCURRED:
   DISSENTED:           BRADLEY, J., ABRAHAMSON, C.J., dissent. (Opinion
                        filed.)
  NOT PARTICIPATING:


ATTORNEYS:
       For the petitioner-respondent-petitioner, there were briefs
by Jennifer M. Severino and Servino Law Offices LLC, Racine, and
oral argument by Jennifer M. Severino.


       For      the    respondent-appellant,    the   cause   was   argued   by
Jeffrey J. Kassel, assistant attorney general, with whom on the
brief was J.B. Van Hollen, attorney general.
                                                                            2014 WI 19
                                                                    NOTICE
                                                      This opinion is subject to further
                                                      editing and modification.   The final
                                                      version will appear in the bound
                                                      volume of the official reports.
No.       2011AP2188
(L.C. No.    2011CV952)

STATE OF WISCONSIN                                :            IN SUPREME COURT

State of Wisconsin ex rel. Ardonis Greer,

              Petitioner-Respondent-Petitioner,                          FILED
      v.
                                                                    APR 17, 2014
Wayne J. Wiedenhoeft, Administrator, Division
of Hearings and Appeals,                                               Diane M. Fremgen
                                                                    Clerk of Supreme Court

              Respondent-Appellant.




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



      ¶1      ANNETTE KINGSLAND ZIEGLER, J.               This is a review of a

published decision of the court of appeals, State ex rel. Greer

v. Schwarz, 2012 WI App 122, 344 Wis. 2d 639, 825 N.W.2d 497,

that reversed the decision of the Racine County Circuit Court,1

which had reversed a decision of the Division of Hearing and

Appeals      affirming        the   Wisconsin   Department         of    Corrections'

("DOC") revocation of Ardonis Greer's ("Greer") probation.

      ¶2      This     case    presents   three       issues     for     our    review.

First, we are asked to determine whether the issuance of an

      1
          The Honorable Charles H. Constantine presided.
                                                                        No.   2011AP2188



erroneous discharge certificate deprived the DOC of jurisdiction

to revoke Greer's probation, despite a validly imposed sentence

to the contrary.            Second, we are asked to determine whether the

DOC, in revoking Greer's probation, violated Greer's procedural

or substantive due process rights.                    Finally, we are asked to

determine whether the circuit court, sitting in certiorari, was

empowered      to     equitably      estop    the   DOC   from    revoking     Greer's

probation.

       ¶3      Greer    argues       that    the    issuance     of    the    discharge

certificate was a "significant legal moment" that deprived the

DOC of jurisdiction to revoke his probation.                      Greer also argues

that,    in    revoking      his   probation,       the   DOC    violated     both   his

substantive and procedural due process rights.                         Finally, Greer

argues that the DOC should be equitably estopped from revoking

his probation.

       ¶4      The State argues that the DOC retained jurisdiction

over    Greer,      despite    the    erroneous      issuance     of    the   discharge

certificate.          The State further argues that Greer's due process
rights have not been violated.                   Finally, the State argues that

equitable estoppel is not available in a certiorari action, and

that    even     if    it   were     available,     Greer   is    not    entitled    to

equitable relief.

       ¶5      We conclude that the DOC retained jurisdiction over

Greer despite the erroneous issuance of a discharge certificate.

We further conclude that Greer's due process rights were not

violated, and that equitable estoppel is not available in the




                                             2
                                                                                No.       2011AP2188



context of certiorari review.                       We therefore affirm the court of

appeals.

                                   I.     FACTUAL BACKGROUND

       ¶6      On       September       29,    2004,      the    State    filed       a   criminal

complaint2 charging Greer with one count of possession of THC

with intent to deliver while armed as a repeater, contrary to

Wis.       Stat.    §§ 961.41(1m)(h)2,                  961.48(1)(b),     and       939.63(1)(c)

(2003-04), one count of maintaining a drug trafficking place

while armed as a repeater, contrary to Wis. Stat. §§ 961.42(1),

961.48(1)(b),            and    939.63(1)(c)            (2003-04),       and   one        count   of

possession         of    a     firearm    by    a       felon,   contrary      to     Wis.   Stat.

§ 941.29(2) (2003-04).

       ¶7      On January 25, 2005, Greer pled guilty to possession

with intent to deliver THC ("Count 1"), and possession of a

firearm by a felon ("Count 3").                            The charge of maintaining a

drug trafficking place was dismissed, but read in for sentencing

purposes.          The court ordered a presentence investigation report.

       ¶8      On March 14, 2005, Greer was sentenced to three years
of imprisonment on Count 1, comprised of 14 months of initial

confinement to be followed by 22 months of extended supervision.

On Count 3, Greer was sentenced to six years of imprisonment,

comprised of three years of initial confinement to be followed

by three years of extended supervision, but the sentence was


       2
       While basic information regarding the charges Greer faced
in Racine County Case No. 2004CF1184 is a part of this record,
the facts supporting those charges are not.        The facts of
Greer's initial conviction are thus not part of our review.



                                                    3
                                                                  No.    2011AP2188



stayed and Greer was instead ordered to serve three years of

probation consecutive to Count 1.               Greer was personally present,

and represented by counsel, at both the plea hearing and the

sentencing hearing.3

     ¶9        On September 28, 2007, Greer completed his sentence on

Count 1 and began serving his period of probation.                         Greer's

supervising         agent,   however,   erroneously    informed    him    that    he

would     be    discharged      from    supervision    after     September       28.

Subsequently,          Greer    was     erroneously    issued     a      discharge

certificate4 dated October 3, 2007, which stated:

               You were sentenced to Wisconsin State Prisons.

          The department having determined that you have
     satisfied said sentence, it is ordered that effective
     September 28, 2007, you are discharged absolutely.

               . . . .

          Restoration           of      civil     rights   for        felony
     convictions:

          This certifies that the following civil rights
     are restored to you:

               1.    The right to vote.

               2.    The obligation for jury duty.


     3
       While the transcript of the plea hearing and sentencing
hearing are not a part of this record, Greer has conceded that
he was present and represented at the hearings.
     4
       The DOC issued Greer two discharge certificates, one
discharging him with respect to Count 1 only, and the other
discharging him absolutely.    Given that Greer had reached the
end of his sentence on Count 1, it follows that the discharge
certificate for Count 1 was properly issued.          Our review
therefore concerns only the absolute discharge certificate.



                                          4
                                                                         No.   2011AP2188


              The following civil rights are not restored to
     you:

          1. Firearms may not be used or possessed unless
     a pardon, which does not restrict possession of
     firearms, is received from the governor.

          2. Public office can not be held unless a pardon
     is obtained from the governor.
In fact, Greer's consecutive probation was not set to end until

September 28, 2010, three years later.

     ¶10      On November 5, 2009, Greer was allegedly involved in

an   argument       with      his      then-girlfriend          Veronica       Wilkerson

("Wilkerson").          During the course of that argument, Wilkerson's

nephew, Shawn Griffin ("Griffin"), entered the bedroom where the

two were arguing and told Greer to get away from Wilkerson or he

would call his father and the police.                   Greer then displayed what

appeared to be a silver handgun and implied that he would shoot

Griffin's     father      and     Wilkerson    if       Griffin    made    the    calls.

Police later recovered an airsoft pistol from the apartment.

Greer subsequently admitted to holding the airsoft pistol while

obscuring the orange tip in order to frighten Griffin.

     ¶11      On   November       6,   2009,   the      State     filed    a   criminal

complaint against Greer, charging him with one count of felony

intimidation       of    a   witness     using      a    dangerous       weapon   as   a

repeater,     contrary       to   Wis.   Stat.      §§ 940.43(3),         939.50(3)(g),

939.63(1)(b), and 939.62(1)(b) (2009-10),5 a class G felony; one

count    of   second-degree         reckless     endangerment       as     a   repeater,


     5
       All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.



                                           5
                                                                       No.    2011AP2188



contrary     to    Wis.      Stat.    §§ 941.30(2),             939.50(3)(g),        and

939.62(1)(b), a class G felony; and one count of disorderly

conduct as an act of domestic abuse using a dangerous weapon as

a   repeater,     contrary    to   Wis.        Stat.    §§ 947.01,     939.51(3)(b),

939.63(1)(a),       973.055(1),       and        939.62(1)(a),         a     class    B

misdemeanor.

      ¶12   On    June     25,     2010,        Greer    pled     no       contest   to

intimidating a witness, contrary to Wis. Stat. § 940.43(3).                          The

court found him guilty and ordered a presentence investigation

report.     In exchange for his plea, the State dismissed the other

charges and penalty enhancers.                 While preparing the presentence

investigation, the DOC reviewed Greer's file and discovered that

Greer was still purportedly serving the probation term from his

2004 conviction.         On September 2, 2010, police took Greer into

custody on a DOC hold.

      ¶13   On September 8, 2010, DOC Agent Leah Zeni ("Zeni")

interviewed Greer.        In a written statement, Greer admitted that

he had not reported during his consecutive probation, that he
had threatened Griffin, and that he had violated the speed limit

and consumed alcohol.         Greer wrote that he did not realize that

he was still on probation.

                             II.   PROCEDURAL POSTURE

      ¶14    On September 16, 2010, the DOC initiated revocation

proceedings against Greer, alleging he had violated the terms of

his probation by failing to report for supervision, threatening

Griffin, possessing a firearm, speeding, and consuming alcohol.
Greer's revocation hearing was set for November 15, 2010.


                                           6
                                                                    No.    2011AP2188



      ¶15     On November 8, 2010, Greer filed a motion objecting to

the jurisdiction of the DOC.              In his motion, Greer argued that

the issuance of the discharge certificate deprived the DOC of

jurisdiction to revoke him.           Relying on Wis. Stat. § 304.072(3)6

and   State    ex    rel.     Rodriguez    v.    DHSS,    133   Wis. 2d 47,      393

N.W.2d 105 (Ct. App. 1986), Greer reasoned that the DOC has

jurisdiction only prior to the expiration of a probationer's

term of supervision, and that because Greer had been discharged,

his term of supervision had ended.                Alternatively, Greer argued

that he had been deprived of adequate notice as to the case

under which the DOC was seeking revocation, because paperwork

related to his revocation inconsistently appended the letters

"A" and "B" to the case number.7

      ¶16     On   November    15,   2010,      Greer    received   a     revocation

hearing before an administrative law judge ("ALJ").                          At the

hearing, the DOC presented testimony from Griffin in support of

revocation.        Griffin testified that during the argument between


      6
          Wisconsin Stat. § 304.072(3) provides:

           Except   as  provided  in   s. 973.09(3)(b), the
      department preserves jurisdiction over a probationer,
      parolee or person on extended supervision if it
      commences an investigation, issues a violation report
      or issues an apprehension request concerning an
      alleged violation prior to the expiration of the
      probationer's,   parolee's   or   person's   term  of
      supervision.
      7
       It is undisputed that these lettering notations resulted
from the DOC creating a new case number under which to hold
Greer   after  discovering  he  was   still  on   probation  on
September 1, 2010.



                                          7
                                                                      No.   2011AP2188



Wilkerson and Greer, he entered Wilkerson's bedroom and stated,

"I'm       gonna   tell    the    police,"   and     "I'm   gonna   tell    my   dad."

Griffin testified that Greer responded, "I don't care."                         Griffin

stated that Greer then retrieved a gun and said "this is what I

got for your dad" while cocking the weapon.                   Griffin then stated

"I'm gonna tell the police," to which Greer responded, "I would

shoot your auntie and this is what I got for your dad" while

once again cocking the weapon.                   Griffin further testified that

he was sure that the gun was real.

       ¶17     Greer also testified at the hearing in opposition to

revocation.        Greer stated that, while he was physically present

at     his    March      14,     2005   sentencing      hearing,    he   nonetheless

believed that his probation was completed because he had been

discharged through the issuance of the discharge certificate.

Greer testified that he did not have "any acknowledgment of a

consecutive or a concurrent" at the sentencing hearing, stating

"[t]hose things are not definite to me."                     He further admitted

that he had threatened Griffin, but testified that he had used
an "aerosol gun" and not a real pistol.

       ¶18     On November 23, 2010, the ALJ issued his decision and

ordered Greer's probation revoked.8                     The ALJ rejected Greer's

jurisdictional           arguments,     relying    on   Rodriguez    and    State    v.

Stefanovic,        215    Wis. 2d 310,     572    N.W.2d 140   (Ct.      App.    1997).

The ALJ concluded that "[n]either an Agent nor clerk entering


       8
       Greer's criminal conviction and written admissions served
as proof of the conduct alleged in the notice of revocation.



                                             8
                                                                     No.    2011AP2188



information into a computer can void or nullify a valid court

order."      The     ALJ    also       rejected    Greer's     argument     regarding

adequate notice, stating "Mr. Greer[,] as all defendants in this

state[,] was present at the time he was sentenced and would have

directly heard the court sentencing him to prison and also to a

consecutive three year period of probation."

      ¶19   As to the allegations supporting revocation, the ALJ

determined that the DOC had proven that Greer had threatened

Griffin, and had proven that Greer consumed alcohol.                        While the

ALJ concluded that there was insufficient evidence to support

the   allegation     that    Greer       possessed    a   real   handgun,     Greer's

admitted     use     of    the     airsoft      pistol    to     threaten     Griffin

constituted an aggravating factor as to that allegation.                       Having

considered the alternatives, the ALJ concluded that revocation

was necessary:

           I find revocation necessary to avoid undue
      depreciation   of  the   seriousness   of  the   proven
      violations and to protect the community from further
      criminal conduct by Mr. Greer. Mr. Greer had engaged
      in serious new felony conduct.      He aggravated that
      criminal conduct by deliberately leading his victim to
      believe that he was in danger of being shot. He needs
      to be held to account for that behavior and the
      community needs protection from it.         Mr. Greer
      proposes that his probationary term be tolled back to
      the beginning and he be continued on probation.       I
      find that proposal an inadequate response to his
      serious new criminal behavior.       I find no other
      alternative to revocation an appropriate response to
      his conduct.
      ¶20   On December 8, 2010, Greer filed an appeal from the

ALJ's     decision    with       the    Division     of   Hearings    and     Appeals
("Division").        Greer once again asserted that the DOC lacked


                                            9
                                                                           No.   2011AP2188



jurisdiction to revoke his probation.                      Greer argued that the ALJ

erred when he equated Greer's circumstances with that of the

defendant in Rodriguez.                 Greer pointed out that in Rodriguez,

the   defendant            never       received       a     discharge       certificate.

Alternatively,          Greer       argued   that    the    DOC   lacked    jurisdiction

because      it     had    not       provided      him     adequate   notice      of   his

revocation.         Greer further objected to what he characterized as

ex parte communication between the DOC and the ALJ prior to his

hearing.          In addition to challenging the DOC's jurisdiction,

Greer also argued that his due process rights were violated

because the DOC failed to maintain accurate records, and that

the    DOC         acted     arbitrarily,           capriciously,          oppressively,

unreasonably, and contrary to law.

      ¶21    On December 22, 2010, the Division sustained the ALJ's

decision and revoked Greer's probation.                       The Division concluded

that the erroneous issuance of a discharge certificate does not

"deprive [the DOC] of jurisdiction, nor does it relieve                                the

offender     of     liability         for    misconduct,      particularly       criminal
offenses."         The Division found that the judgment of conviction

"unambiguously decreed that Greer was to serve his probation

term consecutive to the prison sentence."                         The Division noted

that "[a]s a practical matter, Greer would have been in court at

sentencing and therefore knew, or should have known, that he was

required     to     serve       a     consecutive        probation    term."       Citing

Rodriguez,        the   Division       further      concluded     that   Greer    "cannot

seriously contend that a probationer can violate the criminal
laws of this state without affecting his or her probationary


                                              10
                                                                        No.    2011AP2188



status."     The Division also determined that the communication

between    the    DOC    and    the    ALJ    prior    to      the   hearing    was    not

improper, and that the ALJ's findings at the hearing supported

revocation as an appropriate consequence of Greer's serious new

criminal offense.

    ¶22     On February 4, 2011, Greer filed a petition for a writ

of certiorari in the Racine County Circuit Court, seeking review

of the Division's determination.                  On February 9, 2011, the court

issued the writ, agreeing to review the DOC's decision to revoke

Greer's probation.

    ¶23     Before the circuit court, Greer once again argued that

the DOC lacked jurisdiction to revoke his probation.                                  Greer

renewed his argument that the DOC lost jurisdiction when it

issued the discharge certificate.                  Greer also continued to argue

that his right to due process was violated because the DOC had

negligently failed to maintain accurate records.                       Finally, Greer

argued     that    the     DOC,       the    ALJ,     and      the    Division        acted

arbitrarily, capriciously, oppressively, unreasonably, contrary
to law, and contrary to the evidence of the record.

    ¶24     The State argued that the DOC and the Division did not

lose jurisdiction over Greer when the DOC issued the discharge

certificate,      and    that        Greer   failed       to    establish      that    the

decision    to    revoke       his    probation     was     arbitrary,      capricious,

oppressive, unreasonable, or contrary to law.                         With respect to

jurisdiction, the State argued that "[a] clerical error does not

override [a] judge's authority" to impose probation in addition
to a prison sentence, and neither should such an error "relieve


                                             11
                                                                         No.   2011AP2188



[an] offender for misconduct, particularly criminal offenses."

The State further argued that, with respect to the DOC's alleged

"arbitrary      or    capricious"        conduct,    Greer    failed      to   establish

that the actions of the DOC or the Division were arbitrary or

capricious.

       ¶25    On     June    23,    2011,   the     circuit    court      reversed     the

decision of the Division.                The court concluded that, despite the

issuance      of    the     discharge     certificate,      the    DOC    continued     to

possess jurisdiction over Greer, and that neither the DOC nor

the Division had acted arbitrarily or capriciously in revoking

him.    The court further determined that the evidence supported

Greer's      revocation.           The   circuit    court    nonetheless       concluded

that   the     DOC     was    equitably      estopped       from   revoking     Greer's

probation.         The court stated "that revocation of probation under

circumstances as unique as found here would violate the basic

principles of decency and fairness."                   The court concluded that

"the DOC's issuance of the discharge certificate was legally

significant and estopped it from seeking revocation."
       ¶26    On     July    25,    2011,    the    State     moved      the   court    to

reconsider its decision.                  The State argued that the court's

decision to reverse Greer's probation revocation on equitable

grounds was contrary to Town of Delafield v. Winkelman, 2004 WI

17, 269 Wis. 2d 109, 675 N.W.2d 470, which held that traditional

certiorari      review       did   not    include    consideration        of   equitable

arguments.

       ¶27    Greer opposed the motion for reconsideration.                       Greer
argued that, because one of the prongs of certiorari review is


                                            12
                                                                           No.     2011AP2188



whether       the   agency    acted      "according        to     law,"      the        review

implicated      concepts     of    due     process,       decency,         and    fairness.

Greer     argued     that    the    circuit        court's      decision          to    apply

equitable principles was appropriate.

       ¶28     On   August   2,    2011,     the      circuit     court      denied       the

State's motion for reconsideration.                      The court concluded that

the    State    interpreted        Winkelman       too    broadly,         and     that    the

language      in    Winkelman      which    purports       to     limit      the       court's

equitable power in a certiorari action is dicta.

       ¶29     On September 16, 2011, the State filed its notice of

appeal.

       ¶30     Before the court of appeals, the State argued that the

DOC    retained     jurisdiction      to    revoke       Greer,      the    DOC     did   not

violate Greer's due process rights, the DOC and the Division

acted according to law, and the decision to revoke Greer was not

arbitrary, oppressive or unreasonable because the evidence in

the record supported revocation.                   The State further contended

that    the    circuit   court      lacked      the   power     to    grant       equitable
relief in a certiorari review.

       ¶31     Greer argued that the DOC was deprived of jurisdiction

because of the discharge certificate.                     Greer also claimed that

the DOC violated his due process rights when it revoked him

despite failing to properly maintain its records and afford him

adequate notice.         Greer further argued that equitable estoppel

was an available remedy in a certiorari action such as Greer's.

Finally, Greer contended that the decision to revoke him was




                                           13
                                                                           No.     2011AP2188



oppressive      and     unreasonable,         and      was       unsupported        by    the

evidence.

       ¶32   On October 10, 2012, the court of appeals reversed the

decision of the circuit court.                Greer, 344 Wis. 2d 639, ¶1.                 The

court of appeals concluded that the erroneous issuance of a

discharge certificate did not deprive the DOC of jurisdiction to

revoke    Greer's      probation      because        his     court-ordered         term    of

probation     had     not     expired.        Id.,    ¶20.         The    court     further

concluded, relying on Winkelman, that equitable relief was not

available in a certiorari action.                      Id., ¶22.           The court of

appeals      analyzed       the    circuit        court's    conclusions          regarding

"basic principles of decency and fairness" and considered those

concerns already to be a part of the due process analysis.                                Id.,

¶23.     The court of appeals, however, concluded that Greer's due

process rights had not been violated.                  Id.       The court of appeals

concluded     that,     because     Greer     was     physically         present    at    his

sentencing hearing, he could not reasonably believe that his

probation was complete, and therefore, his due process rights
were not violated.             Id., ¶¶24-25.          The court of appeals also

concluded      that,        even   though     documents          related     to     Greer's

revocation referenced "A" and "B" case numbers, this did not

deprive      Greer     of     adequate      notice,        and    therefore        did    not

constitute a due process violation.                  Id., ¶¶27-29.          Finally, the




                                             14
                                                                     No.   2011AP2188



court     of    appeals    concluded     that    the    Division's     decision    to

revoke Greer was supported by the evidence.9                   Id., ¶32.

      ¶33       Greer   petitioned     this     court    for    review,    which   we

granted on June 12, 2013.

                                III. STANDARD OF REVIEW

      ¶34       On certiorari review of a probation revocation, this

court "review[s] the division's decision, not that of the trial

court."        State ex rel. Warren v. Schwarz, 211 Wis. 2d 710, 717,

566   N.W.2d 173        (Ct.    App.   1997),   aff'd,    219    Wis. 2d 615,      579

N.W.2d 698 (1998).

      ¶35       Certiorari review of a probation revocation order is

limited to four inquiries:

      (1) whether the [Division] acted within the bounds of
      its jurisdiction; (2) whether it acted according to
      law; (3) whether its action was arbitrary, oppressive,
      or unreasonable and represented its will, not its
      judgment; and (4) whether the evidence was sufficient
      that   the  [Division]   might  reasonably  make   the
      determination that it did.
State ex rel. Tate v. Schwarz, 2002 WI 127, ¶15, 257 Wis. 2d 40,

654 N.W.2d 438 (quoting Warren, 219 Wis. 2d at 628-29); see also

Van Ermen v. DHSS, 84 Wis. 2d 57, 63, 267 N.W.2d 17 (1978).

      ¶36       Whether the Division kept within its jurisdiction and

acted according to law are questions that we review de novo,

without        deference   to    the   conclusions       of    the   Division,     the



      9
       Greer has not argued before this court that the evidence
against him was insufficient to support revocation.       As a
result, we assume Greer has conceded that the court of appeals'
decision was correct in its determination on this point.



                                          15
                                                                                No.        2011AP2188



circuit court, or the court of appeals.                               Tate, 257 Wis. 2d 40,

¶16; Warren, 219 Wis. 2d at 629.

      ¶37     "When      a   court       on    certiorari           considers     whether        the

evidence is such that the [Division] might reasonably have made

the order or determination in question, the court is not called

upon to weigh the evidence; . . . ."                           Van Ermen, 84 Wis. 2d at

64.     The inquiry is limited to "whether there is substantial

evidence      to    support       the     [Division's]           decision.            It    is   the

province of the [Division] to weigh the evidence in a revocation

case.    A certiorari court may not substitute its view of the

evidence for that of the [Division]."                          Id. (citation omitted).

                                         IV.       ANALYSIS

      ¶38     This       case    presents          three       issues     for     our       review.

First, we are asked to determine whether the DOC was deprived of

jurisdiction when it erroneously issued a discharge certificate

contrary to a validly imposed sentence.                          Second, we are asked to

determine      whether          the     DOC    violated          Greer's        procedural        or

substantive        due    process       rights       when      it     failed    to    accurately
maintain      its    records.            Finally,         we    are     asked    to     determine

whether the circuit court, sitting in certiorari, possessed the

power    to    equitably          estop        the    DOC        from     revoking          Greer's

probation.

                                         A. Jurisdiction

      ¶39     "[P]robation is a privilege extended to a convict by

the   grace    of     the       state.        It     is    not      a   right."         State     v.

Simonetto, 2000 WI App 17, ¶9, 232 Wis. 2d 315, 606 N.W.2d 275
(citation omitted); see also Garski v. State, 75 Wis. 2d 62, 248


                                                16
                                                               No.    2011AP2188



N.W.2d 425 (1977).        In Wisconsin, the terms of probation are

governed by statute, see Wis. Stat. § 973.09, and the statute

details the circumstances under which a probationer is to be

issued a discharge certificate:

         When the period of probation for a probationer
    has expired, the probationer shall be discharged from
    probation and the department shall do all of the
    following:

         (a) If the probationer was placed on probation
    for a felony, issue the probationer one of the
    following:

         1. A certificate of discharge from probation for
    the felony for which he or she was placed on probation
    if, at the time of discharge, the probationer is on
    probation or parole for another felony.

         2. A certificate of final discharge if, at the
    time of discharge, the probationer is not on probation
    or parole for another felony. A certificate of final
    discharge under this subdivision shall list the civil
    rights which have been restored to the probationer and
    the civil rights which have not been restored to the
    probationer.
Wis. Stat. § 973.09(5).        The probation statute provides that a

certificate of final discharge shall be issued when the "period

of probation . . . has expired."          Thus, the jurisdiction of the

DOC to supervise the probationer must also extend until the

"period of probation . . . has expired."

    ¶40     Consistent with Wis. Stat. § 973.09(5), the DOC's own

administrative rules also provide that a probationer "shall be

discharged upon the issuance of a discharge certificate by the

secretary    at   the   expiration   of   the   term   noted   on    the   court
order."     Wis. Admin. Code § DOC 328.17(2).



                                     17
                                                                               No.     2011AP2188



      ¶41     Pursuant to the statute and administrative code, the

DOC possesses jurisdiction over a probationer until the end of

the court-imposed term of probation.                          It is undisputed that

Greer was ordered to serve three years of probation, consecutive

to his sentence on Count 1.                The court imposed a probation term

which should have ended on September 28, 2010.                                 Thus, the DOC

should        have     possessed       jurisdiction                over        Greer       until

September 28, 2010.            Even though the DOC issued a discharge

certificate      to    Greer   on    October       3,    2007,          the    DOC   initiated

revocation      proceedings       against        Greer       on    September         16,   2010.

Absent the issuance of the discharge certificate, there is no

question that the DOC would have had jurisdiction to initiate

revocation      proceedings       against       Greer.            We    conclude       that    the

clear    language      of   the     statute       and    the           code    trump    Greer's

argument that the DOC lost jurisdiction to initiate revocation

proceedings when it erroneously issued a discharge certificate

to Greer.

      ¶42      Greer    argues      that    the     erroneous             issuance      of     the
discharge      certificate     was    a     "significant               legal    moment"       that

deprived the DOC of jurisdiction to revoke his probation.                                  Greer

relies    principally       upon    two     court       of    appeals'          decisions      to

support       this    argument.        See       Stefanovic,             215    Wis. 2d 310;

Rodriguez, 133 Wis. 2d 47.                 Neither decision, however, stands

for     the    proposition     that        an    erroneously             issued      discharge

certificate can defeat a valid sentence imposed by a circuit

court.




                                            18
                                                                           No.     2011AP2188



      ¶43   In     Rodriguez         the       defendant,       Alejandro         Rodriguez

("Rodriguez"), was convicted of child abuse and battery in 1981.

133 Wis. 2d at 49.           Rodriguez's sentence was stayed, and he was

ordered to serve a two-year probation term                           consecutive         to a

prison term he faced for a prior conviction.                         Id.     In March of

1985,    Rodriguez's         probation         and     parole      agent     erroneously

informed him he would be discharged from supervision on April 6,

1985, at the end of his sentence for the prior conviction.                                Id.

On April 30, 1985, Rodriguez committed an assault.                               On May 20,

1985,    Rodriguez's         agent        notified     him    that     the       department

considered him to still be on probation.                     Id. at 49-50.

      ¶44   The     Department            of     Health      and     Social        Services

("Department")          commenced           revocation        proceedings           against

Rodriguez.        Id.   at    50.         Rodriguez     argued     that     he    had    been

discharged from supervision at the time of the assault.                                   Id.

The hearing examiner determined that, because the circuit court

had   informed     Rodriguez         at    his      sentencing     that    he     would    be

serving a two-year period of probation following the completion
of his prison term, Rodriguez knew he was on probation and could

not plausibly claim otherwise.                 Id.

      ¶45   On certiorari review, the circuit court reversed.                             Id.

at 51.      It concluded that the agent's erroneous statement had

the effect of discharging the defendant from probation, and thus

deprived the Department of jurisdiction to revoke him.                             Id.    The

court concluded that the Department was precluded from revoking

the defendant's probation for conduct occurring while he was
effectively discharged.             Id.


                                               19
                                                                     No.    2011AP2188



    ¶46       The court of appeals reversed, concluding that "[o]nce

custody    is      transferred     to    the        department,    discharge     from

probation or parole under the release of the department occurs

only 'upon the issuance of a discharge certificate . . . at the

expiration      of    the   term   noted       on    the   court   order.'"         Id.

(citation omitted).          The court further concluded that "[b]ecause

no discharge certificate was produced for the child abuse and

battery conviction, the department still had jurisdiction even

given   the     agent's     erroneous    statement."         Id.    The     court   of

appeals       also     noted     that     the        "judgment     of      conviction

unambiguously decreed that probation be served consecutive to

the prison sentences," and the defendant had been "turned over

to the custody of the department for purposes of serving both

the prison sentence and the probationary term."                      Id. (emphasis

in original).

    ¶47       Similarly, in the case at issue, it is equally clear

that the DOC retained jurisdiction over Greer.                     The judgment of

conviction imposed a prison sentence and a consecutive probation
term.      Greer was placed in the custody of the DOC for the

purpose of serving both.                Although in this case a discharge

certificate was issued, it was not issued "at the expiration of

the term noted on the court order" and was therefore legally

invalid.      Like the agent's erroneous statement in Rodriguez, the

erroneously issued discharge certificate did not have the effect

of discharging Greer from probation.

    ¶48       In     Stefanovic,    the        defendant,     Paulan       Stefanovic
("Stefanovic"), was convicted of carrying a concealed weapon,


                                          20
                                                                               No.        2011AP2188



contrary to Wis. Stat. § 941.23 (1995-96), on March 4, 1996.

The trial court withheld sentence and instead ordered Stefanovic

to serve a one-year term of probation.                           215 Wis. 2d at 312.               As

a condition of probation, the court also ordered Stefanovic to

serve 30 days in jail.                 Id.     Stefanovic appealed her conviction,

and   filed     a     motion      for    release       pending      appeal.          The     court

granted her motion and Stefanovic did not serve any of the jail

time.       Id.        The    court      did    not,      however,      stay     Stefanovic's

probation.          Id.      She completed her probation while her appeal

was pending, and the DOC issued a certificate of discharge.                                    Id.

      ¶49      The        court         of      appeals          subsequently             affirmed

Stefanovic's         conviction         and    remanded      the       case    to    the     trial

court.      Id. at 312.           On remand, the trial court determined that

Stefanovic        should     serve       the    jail      term    it    had    imposed        as   a

condition of probation.                 Id. at 313.          The court noted that "it

had granted the stay of the jail term at Stefanovic's request

and   she    should       not     be    allowed      to    use    her    right       to    release

pending appeal as a means to frustrate the court's sentence."
Id.     Stefanovic appealed the court's decision to impose the jail

term.    Id.

      ¶50      The court of appeals reversed.                     Id. at 320.         The court

noted the "issuance of a discharge certificate is of significant

legal moment."            Id. at 315-16.          Relying on Rodriguez, the court

of    appeals        concluded         that    because      "the       trial     court       never

modified or extended Stefanovic's probationary term" and that

"[a]bsent       such      action,        the    department         properly         issued      its




                                                21
                                                                         No.       2011AP2188



certificate of discharge to Stefanovic," the trial court lost

jurisdiction over Stefanovic.              Id. at 316.

       ¶51    While    in    Stefanovic,        a    discharge        certificate          was

issued,      that   certificate      was    properly          issued.        This     is    a

critical distinction between Stefanovic and the case at issue.

Unlike    the   case    at    issue,     the     defendant       in     Stefanovic         had

reached the end of her court-ordered probation term, and so the

DOC's issuance of a discharge certificate was fully compliant

with     Wis.   Stat.       § 973.09(5)        and     Wis.     Admin.       Code     § DOC

328.17(2).      By contrast, Greer had not reached the end of his

court-ordered probation when the DOC issued the certificate in

this case.          Thus, the discharge certificate issued to Greer

could not have the effect of discharging him from his court-

ordered probation because his court-ordered probation was not

complete.

       ¶52    Both Wis. Stat. § 973.09(5) and Wis. Admin. Code § DOC

328.17(2) ensure that the DOC carries out the sentence imposed

by the circuit court.           Allowing a clerical error by the DOC to
preclude imposition of that sentence would be contrary to the

purposes of these provisions and would undermine the finality of

the court's judgment.          Indeed, even the circuit court itself has

limited authority to modify a sentence and may do so only within

"defined     parameters,"      and   "[a]       court   cannot        base     a   sentence

modification on reflection and second thoughts alone."                             State v.

Ninham, 2011 WI 33, ¶88, 333 Wis. 2d 335, 797 N.W.2d 451; State

v. Harbor, 2011 WI 28,            ¶35,     333       Wis. 2d 53, 797         N.W.2d 828.
Generally, a circuit court may modify a sentence only if it


                                           22
                                                                         No.        2011AP2188



abused its discretion in imposing the sentence,10 or if a "new

factor," unknown to the trial judge at the time of sentencing,

has come to light.11              In any event, "adequate reasons" for the

modification      must       be   made   known      on    the    record.        State        v.

Wuensch, 69 Wis. 2d 467, 480, 230 N.W.2d 665 (1975).

    ¶53      In sum, and with these limitations in mind, it is

inconceivable       that      a   sentence,     validly     imposed      by     a    circuit

court,    could     be    undermined     by     a   mere    clerical       error       by   an

agency.      We conclude, therefore, that the DOC did possess the

jurisdiction      to     revoke     Greer's     probation,       and   we      affirm       the

court of appeals.

                                     B. Due Process

    ¶54      In determining whether an agency acted "according to

law,"    a   court       sitting    in   certiorari         considers       whether         the

agency's decision comports with due process.                       See State ex rel.

Curtis v. Litscher, 2002 WI App 172, ¶15, 256 Wis. 2d 787, 650

N.W.2d 43;     State         v.    Goulette,        65     Wis. 2d 207,         215,        222

N.W.2d 622    (1974)         (construing   the      phrase      "acted     according         to
law" to encompass due process and fair play).

    ¶55      "The      Due    Process    Clauses     of    the    United       States       and

Wisconsin Constitutions protect both substantive and procedural

    10
       See, e.g., Cresci v. State, 89 Wis. 2d 495, 504, 278
N.W.2d 850 (1979) (holding that a trial court may modify a
sentence for abuse of discretion based upon its conclusion that
the sentence was unduly harsh or unconscionable).
    11
       See, e.g., State v. Kluck, 210 Wis. 2d 1, 7, 563
N.W.2d 468 (1997); State v. Macemon, 113 Wis. 2d 662, 668, 335
N.W.2d 402 (1983).



                                           23
                                                                                  No.   2011AP2188



due process rights."            State v. Laxton, 2002 WI 82, ¶10 n.8, 254

Wis. 2d 185, 647 N.W.2d 784.

    ¶56     Greer argues that both his substantive and procedural

due process rights were violated when his probation was revoked

after being issued a discharge certificate.                            Greer asserts that

his right to substantive due process was violated when the DOC

"failed    to    accurately      maintain          its    records,"          as    required      by

statute and administrative rule, and revoked him after his civil

rights    had    been    restored.           Greer       argues       that    his       right    to

procedural due process was violated when the DOC failed to give

adequate notice that he remained on probation and failed to give

him adequate notice of his revocation by using various case

numbers on his revocation paperwork.                       We reject both of these

arguments       and   conclude,       as     did    the    court       of     appeals,         that

Greer's due process rights were not violated.

                           1. Substantive Due Process

    ¶57     Substantive         due        process       provides        protection            from

"certain    arbitrary,        wrongful        government            actions."           State    v.
Schulpius, 2006 WI 1, ¶33, 287 Wis. 2d 44, 707 N.W.2d 495.                                     "The

test to determine if the state conduct complained of violates

substantive       due    process        is     if        the    conduct           'shocks       the

conscience . . . or        interferes          with        rights       implicit         in     the

concept of ordered liberty.'"                      Id.    (quoting       State v. Joseph

E.G., 2001 WI App 29, ¶13, 240 Wis. 2d 481, 623 N.W.2d 137).

    ¶58     "[L]iability          for        negligently            inflicted           harm     is

categorically         beneath    the        threshold          of     constitutional            due
process."        Cnty.   of     Sacramento         v.     Lewis,       523    U.S. 833,         849


                                             24
                                                                             No.     2011AP2188



(1998).          When analyzing       a     substantive due process                 claim, we

therefore consider "whether the government officer's conduct was

either       a     'deliberate         decision[]' . . . or                 reflected       the

officer's        'deliberate       indifference'"         to    the    asserted       liberty

interest.         Schulpius, 287 Wis. 2d 44, ¶33 (citation omitted).

       ¶59       Greer argues that his substantive due process rights

were    violated      when     the    DOC    "repeatedly        fail[ed]       to    maintain

accurate records" of his probation status.                            Greer claims that

the DOC's maintenance of its records was "reckless," and that

its    decision      to     revoke    his    probation     on    the    basis       of    those

records was "arbitrary and capricious."                         Greer claims that he

suffered an unconstitutional deprivation of his liberty as a

result.      Greer's argument is unpersuasive.

       ¶60       It is undisputed that the DOC failed to input Greer's

probation into its record system, as required by Wis. Admin.

Code § DOC 328.04(2)(n).              But Greer can point to no evidence in

the record that indicates the DOC's administrative failure was

deliberate or resulted from deliberate indifference.                               Schulpius,
287 Wis. 2d 44, ¶33.               At most, the DOC's failure to maintain

accurate         records     constituted        negligence,           and     it     is    well

established that "negligently inflicted harm is categorically

beneath the threshold of constitutional due process."                                     Lewis,

523 U.S at 849.

       ¶61       Further,    the     fact    that    Greer      was    revoked       for    new

criminal     conduct        hardly    "shocks       the   conscience."             Greer    was

serving a court-imposed probation term pursuant to a conviction
for being a felon in possession of a firearm.                                  During that


                                              25
                                                                        No.       2011AP2188



probation period he was convicted of committing a felony by

threatening       a    witness    with       what   the    witness    believed       was   a

pistol.        Revoking his probation under those circumstances, even

accounting for the erroneously issued discharge certificate, can

hardly      be    characterized         as     interference      with       the    "rights

implicit in the concept of ordered liberty."                            Thus, Greer's

right to substantive due process was not violated.

                                2. Procedural Due Process

      ¶62      "Procedural        due    process . . . requires               that     even

though 'government action depriving a person of life, liberty,

or property survives substantive due process scrutiny, it must

still     be     implemented       in    a     fair       manner.'"         Laxton,     254

Wis. 2d 185, ¶10 n.8 (quoting United States v. Salerno, 481 U.S.

739, 746 (1987)).

      ¶63      In the context of probation revocation, procedural due

process requires that the defendant be given:                        written notice of

the     claimed        violations       of     probation;      disclosure         to    the

probationer of the evidence against him; the opportunity to be
heard     in     person    and     to    present      witnesses       and    documentary

evidence;        the    right    to     confront      and    cross-examine         adverse

witnesses; a neutral and detached hearing body; and a written

statement by the fact finder as to the evidence relied on and

reasons for revocation.               State v. Burris, 2004 WI 91, ¶24, 273

Wis. 2d 294, 682 N.W.2d 812; see also, Gagnon v. Scarpelli, 411

U.S. 778, 782, (1973); Morrissey v. Brewer, 408 U.S. 471, 489




                                              26
                                                                      No.    2011AP2188



(1972).12    In some instances the probationer is also entitled to

counsel.     Gagnon, 411 U.S. at 782.

     ¶64     In    this    case,     Greer    received      a   written     Notice   of

Revocation from          the DOC that alleged five violations of the

terms of his probation.             The notice included a disclosure of the

evidence supporting those five alleged violations.                          Greer was

afforded the opportunity to be heard and to present evidence and

witnesses at his revocation hearing.                      He was represented by

counsel     at    that    hearing    and     took   the   opportunity       to   cross-

examine the witnesses against him.                  The hearing was held before

an administrative law judge, who subsequently produced a written

statement of the evidence and reasoning that led him to conclude

that revoking Greer's probation was appropriate.                      Thus, all of

the requirements of procedural due process in the context of

probation revocation were met in this case.

     ¶65     Greer nonetheless argues that his right to procedural

due process was violated because he "did not receive proper

notification       of    which   case   the     DOC   was   seeking    revocation."
Greer bases this claim on the fact that the "Recommendation for

Administrative Action" references "Case #04CF1184B," while the

face sheet for the revocation packet lists "Case #04CF1184A,"

and the revocation hearing request and revocation summary simply



     12
       Morrissey v. Brewer addressed procedural due process
requirements in the context of parole revocation. 408 U.S. 471,
489 (1972).   The United States Supreme Court extended the same
requirements to probation revocation in Gagnon v. Scarpelli, 411
U.S. 778, 782 (1973).



                                           27
                                                                           No.     2011AP2188



refer to "04CF1184."            We agree with the court of appeals that

this argument is a "nonstarter."

      ¶66     What    Greer    ignores     is   that    all      of   the        revocation

documents refer to the same Racine County Circuit Court case

number:     2004CF1184.         Greer     concedes     that      he   was        physically

present at the time of his sentencing on both counts in that

case.     Greer has not sought resentencing or asserted that he

received      ineffective       assistance       of    counsel        at     either       his

sentencing or his plea hearing.                 As a result, Greer would have

been aware that he had been convicted of two counts under that

case number.         He would know that he had completed his sentence

on Count 1, leaving only Count 3 standing.                    Count 3 was the only

count for which he was ordered to complete probation.                                    As a

result, Greer had adequate notice of the circumstances of his

revocation.

      ¶67     When Greer previously raised this notice issue at his

revocation hearing, the ALJ noted that                    "Mr. Greer[,] as all

defendants     in    this     state[,]    was   present     at    the       time    he    was
sentenced and would have directly heard the court sentencing him

to   prison    and    also     to   a    consecutive     three        year       period    of

probation."          The    Division,      in    deciding      his      administrative

appeal, explained that the judgment of conviction "unambiguously

decreed that Greer was to serve his probation term consecutive

to the prison sentence" and that "[a]s a practical matter, Greer

would have been in court at sentencing and therefore knew, or

should have known, that he was required to serve a consecutive
probation term."


                                           28
                                                                               No.     2011AP2188



       ¶68     Under these facts, Greer indeed received proper notice

of   his      revocation.          As    the    Division      noted,          Greer     "cannot

seriously contend that a probationer can violate the criminal

laws of this state without affecting his or her probationary

status."       In the case at issue, Greer's right to procedural due

process was not violated.

                                   C. Equitable Relief

       ¶69     Greer      argues   that    the       certiorari     court       was     correct

when     it    equitably      estopped         the    DOC    from        revoking       Greer's

probation.          The    court    of    appeals      disagreed,         concluding         that

equitable remedies were                 not available to a court sitting in

certiorari review.           Greer, 344 Wis. 2d 639, ¶22.                      We affirm the

court of appeals.

       ¶70     We addressed the availability of equitable relief in a

certiorari action in Town of Delafield v. Winkelman, 2004 WI 17,

269 Wis. 2d 109, 675 N.W.2d 470.                       In   Winkelman, the Town of

Delafield      ("Town")      zoning       board      required,      as    a    condition       on

granting a variance allowing remodeling work on the Winkelmans'
house,     that     the    Winkelmans      remove       a   rental       home        from   their

property.       Id., ¶¶4-6.         The Winkelmans sought certiorari review

of the Town's decision in the circuit court.                                  Id., ¶7.        The

certiorari court upheld the decision and the Winkelmans did not

appeal.       Id.

       ¶71     The Winkelmans subsequently failed to comply with the

condition and the Town brought a motion requesting that the

certiorari court order the Winkelmans to raze the house or allow
the Town to do so.            Id., ¶8.         The certiorari court granted the


                                               29
                                                                               No.     2011AP2188



Town's motion and the Winkelmans appealed.                           Id.        The court of

appeals     reversed,       holding        that     the      Town    needed          to     obtain

jurisdiction over the Winkelmans for the enforcement action by

serving     either    a     summons        and     complaint        or     an       appropriate

original writ.       Id., ¶9.

    ¶72     The      Town         then      filed      a      complaint,             requesting

forfeitures    along        with    an     order    directing        the      Winkelmans        to

remove the rental residence.                     Id., ¶10.          The Town moved for

summary    judgment,        and    the     circuit     court       granted       its      motion.

Id., ¶¶10-11.        The circuit court refused to hear the Winkelmans'

equitable     argument,        concluding          that      it     did       not     have     the

equitable power to deny injunctive relief in the context of an

enforcement    action.             Id.,    ¶11.        The    Winkelmans            once     again

appealed.    Id., ¶12.

    ¶73     The    court      of    appeals        reversed        the    circuit         court's

decision.     Id., ¶13; Town of Delafield v. Winkelman, 2003 WI App

92, 264 Wis. 2d 264, 663 N.W.2d 324.                       It determined that Forest

Cnty. v. Goode, 219 Wis. 2d 654, 579 N.W.2d 715 (1998), required
consideration         of      the         Winkelmans'         equitable              arguments.

Winkelman,    269     Wis. 2d 109,          ¶13.        Further,         it     rejected       the

Town's    assertion        that    the     Winkelmans        had    already          made    their

equitable arguments during the initial certiorari review of the

Town's zoning decision.              Id.     Accordingly, the court of appeals

remanded     the     case     so     the     circuit         court        could       hear     the

Winkelmans' equitable argument.                  Id.

    ¶74     This court affirmed, holding that when a governmental
body seeks injunctive relief in the circuit court, the court has


                                             30
                                                                       No.        2011AP2188



the power to consider a property owner's equitable arguments

against granting that relief.               Id., ¶28.

       ¶75    In addressing the Town's argument that the Winkelmans

had    already      presented      their     equitable      arguments     before        the

certiorari court, the court stated that "[t]he difficulty we

have with the Town's position is its premise that certiorari

review is a proper forum for consideration of the equities."

Id., ¶30.      The court explained that "[b]y its nature, certiorari

review   is    limited        in   scope.        Unless    otherwise     provided        by

statute,      the    traditional      standards       of    common-law       certiorari

review   apply."         Id.       The     court    further    noted    that       it   had

"discovered no precedent that allows certiorari courts to sit in

equity."         Id.,    ¶31.        The    court    thus     concluded       that      the

Winkelmans     had      not   been   afforded       the    opportunity       to    present

their equitable arguments to the certiorari court.                      Id., ¶30.

       ¶76    Despite the pronouncement of this court in Winkelman,

Greer nonetheless argues that equitable estoppel is available in

a certiorari action.            Greer attempts to distinguish Winkelman by
arguing that the Winkelman court was not reviewing the decision

of    the certiorari court, and that equitable estoppel is not

limited to "claims brought in equity."                      Greer's arguments are

unpersuasive.

       ¶77    While Greer is correct that equitable estoppel is not

limited to "claims brought in equity," this does not mean that




                                            31
                                                     No.   2011AP2188



equitable relief is available in a certiorari action.13       While

the powers of a court sitting in certiorari are by definition

limited, "[i]t is very difficult, if not impossible, to place a

limit on the equity power of the court, so far as its protective

feature is concerned."   State ex rel. Superior v. Duluth St. Ry.

Co., 153 Wis. 650, 654, 142 N.W. 184 (1913).      Such broad power

is incompatible with the limited nature of common-law certiorari

review.

    ¶78    Further, "[t]he basis of all equitable rules is the

principle of discretionary application."     Wynhoff v. Vogt, 2000

WI App 57, ¶13, 233 Wis. 2d 673, 608 N.W.2d 400 (quoting Mulder

v. Mittelstadt, 120 Wis. 2d 103, 115, 352 N.W.2d 223 (Ct. App.

1984));    see also Ash Park, LLC v. Alexander & Bishop, Ltd.,

2010 WI 44, ¶38, 324 Wis. 2d 703, 783 N.W.2d 294.          Appellate

courts "apply the erroneous exercise of discretion standard in

reviewing decisions in equity."      Wynhoff, 233 Wis. 2d 673, ¶13;

see also   Lueck's Home Improvement, Inc. v. Seal Tite Nat'l,

Inc., 142 Wis. 2d 843, 847, 419 N.W.2d 340 (Ct. App. 1987).
    ¶79    As we have stated, however, when reviewing certiorari

actions, an appellate court reviews the agency's decision, not

the decision of the certiorari court.       Warren, 211 Wis. 2d at


    13
       "[I]t has been consistently held by this court that in
abolishing distinctions between the forms of actions the code
has     not      abolished     the     essential     differences
between . . . actions for legal and those for equitable relief."
Miller v. Joannes, 262 Wis. 425, 428, 55 N.W.2d 375 (1952); see
also Columbia Cnty. v. Bylewski, 94 Wis. 2d 153, 165 n.4, 288
N.W.2d 129 (1980).



                                32
                                                                        No.        2011AP2188



717.     This standard of review accords with the circuit court

being limited to considering only:

       (1) whether the [Division] acted within the bounds of
       its jurisdiction; (2) whether it acted according to
       law; (3) whether its action was arbitrary, oppressive,
       or unreasonable and represented its will, not its
       judgment; and (4) whether the evidence was sufficient
       that   the  [Division]   might  reasonably  make   the
       determination that it did.
Tate,    257       Wis. 2d 40,    ¶15.      These     "traditional      standards         of

common-law certiorari review" reflect that, to the extent a case

calls    for       the    balancing    of   equitable    principles,          it    is   the

agency       and     not    the      certiorari     court   that     must          exercise

discretion.

       ¶80     Even assuming that equitable estoppel was available in

a certiorari action, however, it is not clear that Greer would

be   entitled        to    relief.      "[T]he    test   for    equitable          estoppel

consists of four elements: (1) action or non-action, (2) on the

part of one against whom estoppel is asserted, (3) which induces

reasonable reliance thereon by the other, either in action or

non-action, and (4) which is to his or her detriment."                             Vill. of

Hobart v. Brown Cnty., 2005 WI 78, ¶36, 281 Wis. 2d 628, 698

N.W.2d 83 (citations omitted); Yocherer v. Farmers Ins. Exch.,

2002 WI 41, ¶25, 252 Wis. 2d 114, 643 N.W.2d 457.

       ¶81     Here, to the extent that Greer relied on the discharge

certificate, such reliance was unreasonable.                     He was present at

his sentencing, which put him on notice that he was to serve a

consecutive         probation     term.      At   a   minimum    this    should          have




                                            33
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caused Greer to question the issuance of a discharge certificate

fully three years before he was to have completed his probation.

    ¶82    Further, even if Greer could have reasonably relied on

the erroneous certificate, he was still not entitled to commit

another crime.       As the Division stated in affirming the ALJ,

Greer "cannot seriously contend that a probationer can violate

the criminal laws of this state without affecting his or her

probationary status."        Greer thus cannot argue that any reliance

on his part was detrimental.

    ¶83    The     Seventh      Circuit    recently       reached          the    same

conclusion in a factually similar case.             Matamoros v. Grams, 706

F.3d 783   (7th    Cir.    2013).     While      Matamoros      is    procedurally

distinct from the case at issue,14 its discussion of equitable

estoppel is instructive.

    ¶84    In      Matamoros,       the    defendant,        Jose          Matamoros

("Matamoros"),     was    sentenced   to   ten    years    in    prison,         to   be

followed by a three-year special parole term.                Id. at 785.          When

he reached the end of his prison term, Matamoros' parole officer
issued him a Notice of Discharge which explained that he was no

longer subject to supervision by the U.S. Parole Commission.

Id. at 785-86.       Neither the Parole Commission nor the parole

officer realized that Matamoros was still subject to the special

parole term.      Id. at 786.

    14
       For example, the case involved both state and federal
law, and the defendant was on parole and not probation.
Further, the Seventh Circuit declined to decide whether
equitable estoppel was available as a remedy in an action on a
writ of habeas corpus.



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       ¶85   Matamoros          subsequently       participated          in     an      armed

robbery, for which he was convicted in Wisconsin state court and

sentenced to prison.              Id.      Because he was on parole when he

committed the robbery, the Parole Commission issued a warrant

for    Matamoros'        arrest    for     violating      the     conditions          of    his

release.         Id.      The     arrest     warrant      was    later    lodged           as    a

detainer.15      Id.

       ¶86   Matamoros filed a petition for a writ of habeas corpus

in federal court, arguing that the government should be estopped

from enforcing the detainer because he was issued a Notice of

Discharge informing him that he was no longer subject to the

Parole Commission's supervision.                    Id.   at 789.         The district

court rejected this argument, concluding that Matamoros could

not    satisfy     all    the     elements    of    estoppel.        Id.         Matamoros

appealed.

       ¶87   The       Seventh    Circuit     conceded      that     "the       Notice          of

Discharge     incorrectly          stated    that      Matamoros      was       no     longer

subject to the Commission's supervision."                       Id. at 794.          It held,
however, that the erroneous issuance of the Notice of Discharge

was "the result of mere negligence."                      Id.      The court further

concluded that "[u]ltimately, Matamoros' own criminal conduct is

the basis for his continued incarceration and the detainer.                                     We

find    nothing    unfair        about   this     case    that    would       justify       the

       15
       "The purpose of the detainer is to make sure the U.S.
Marshal is notified when Matamoros is discharged from his state
prison sentence so he can be immediately taken into federal
custody for a revocation of parole hearing."       Matamoros v.
Grams, 706 F.3d 783, 788 (7th Cir. 2013).



                                             35
                                                                   No.       2011AP2188



extreme remedy of applying the doctrine of equitable estoppel

against the government."        Id.

    ¶88     Similarly    in     this    case,      the    basis        for    Greer's

probation revocation was his own criminal conduct.                       Under such

circumstances it is difficult to find that the equities favor

his release.

    ¶89     In sum, we conclude that a circuit court sitting in

certiorari cannot properly entertain equitable arguments.                        As a

result,    the   DOC   cannot    be    equitably    estopped      from       revoking

Greer's probation.

                                V.     CONCLUSION

    ¶90     We conclude that the DOC retained jurisdiction over

Greer despite the erroneous issuance of a discharge certificate.

We further conclude that Greer's due process rights were not

violated, and that equitable estoppel is not available in the

context of certiorari review.           We therefore affirm the court of

appeals.

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




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                                                                   No.   2011AP2188.awb


      ¶91    ANN WALSH       BRADLEY, J.        (dissenting).            The majority

opinion devotes only two paragraphs to what is the main focus of

Greer's argument: he was denied due process because he did not

have notice that he was on probation.                      Majority op., ¶¶67-68.

The   bulk   of   its    analysis      frames    the       due    process    issue    as

focusing     instead    on     the   Department       of    Correction's      ("DOC")

failure to accurately maintain records.                    Id., ¶¶38, 56, 63-66.

It downplays the fact that the DOC informed Greer on several

occasions that his probation was complete, and suggests that

Greer   received      due    process     because      he    was    present    at     his

sentencing hearing.          Id., ¶67.

      ¶92 Ultimately, the majority determines that because Greer

"knew   or   should     have    known"   that    he    had       not   completed     his

probation term, "Greer's right to procedural due process was not

violated."     Id., ¶¶67, 68.         It asserts that his presence at the

sentencing hearing "should have caused Greer to question the

issuance of a discharge certificate."              Id., ¶81.

      ¶93 Although presence at sentencing would normally put a
defendant on notice of the length of probation, when the DOC

makes repeated representations to a defendant that his probation

is complete, due process requires more.                Because I conclude that

due process requires that Greer have adequate notice of his

probationary status, and that the multiple representations that

the DOC made to Greer indicating that his probation was complete

deprived Greer of adequate notice, I respectfully dissent.

                                          I



                                          1
                                                                No.    2011AP2188.awb


       ¶94   On March 14, 2005, Greer pled guilty to two separate

charges for which he received two separate sentences and terms

of probation.        It is undisputed that the DOC failed to enter

Greer's probation for the second conviction into its system.                        As

a result, even though under the sentencing scheme his discharge

date should have been September 28, 2010, DOC records indicated

a discharge date of September 28, 2007.

       ¶95   According   to      DOC    records,      on   September    11,    2007,

Greer's probation agent apparently spoke with him regarding the

discharge date of his probationary period.                 Her notes read:

       [Greer]   discharges  from  extended   supervision  on
       09/28/07 and will come in to the office tomorrow to
       sign a civil judgment for his unpaid court costs.
       Next Appointment: [Greer] will return to the office on
       09/12/07 at 4:00 to sign a civil judgment. This will
       be his final appointment.
(Emphasis added.)

       ¶96   On September 12, 2007, Greer met with his agent to

convert any remaining fees into a civil judgment.                     Her notes of

that   meeting   indicate     that      she   again    informed   him     that     his

discharge date was September 28, 2007:

       [Greer] reported to the office and signed his civil
       judgment. He was told that a letter will be sent to
       the courts and he will still be required to pay off
       his financial obligations but to the clerk of courts
       and some will be taken out in a tax intercept.
       [Greer] was reminded that even though this agent will
       no longer be seeing him he is still technically on
       supervision until midnight on September 28, 2007.
(Emphasis added.)

       ¶97 Greer contacted his agent again on September 28, 2007,
to   confirm   the   date   of    his    discharge.        In   response      to   his


                                          2
                                                             No.    2011AP2188.awb


request for confirmation, the agent's notes reflect that she

again   verified     that   his    probation    ended     that     very    day   at

midnight:

       [Greer] called this agent and wanted to verify that
       his supervision was done today.     He was again told
       that technically he was still on until midnight but
       his paperwork had been signed off on and he did not
       need to see this agent. He was told that when a copy
       of his discharge letter is received a copy will be
       mailed to his house so that he can have one for his
       records.   [Greer] thanked this agent for working with
       him and was wished luck for his future endeavors.
(Emphasis added.)

       ¶98   Greer received a Discharge Certificate on October 3,

2007, relating to his first conviction.              It informed Greer that

"[t]he department having determined that you have satisfied said

judgment, it is ordered that effective September 28, 2007, you

are discharged from said judgment only."

       ¶99   The   same   day,    Greer   received   an   absolute        Discharge

Certificate on DOC letterhead, signed by the Secretary of the

DOC.    It informed Greer that "effective September 28, 2007, you

are discharged absolutely."


                      DISCHARGE CERTIFICATE
                    ARDONIS F. GREER, #348377-A

       You were sentenced to Wisconsin State Prisons.

       The department having determined that you have
       satisfied said sentence, it is ordered that effective
       September 28, 2007, you are discharged absolutely.

       This   discharge   does   not  forgive   your  current
       (tentative) balance of unpaid supervision fees, in the
       amount of $210.00.       This amount is subject to
       supervision fees for your last month of supervision
       and any outstanding payments.         The balance is
                                          3
                                                                              No.   2011AP2188.awb

    (tentative) as a result of                          delayed    supervision            fee
    charges still to be posted.

    Failure to pay the full amount due may result in the
    taking of future Wisconsin income tax refunds or
    lottery winnings.

    Restoration of civil rights for felony convictions:

    This certifies that                  the     following       civil        rights      are
    restored to you:

    1. The right to vote.

    2. The obligation for jury duty.
(Emphasis added.)

    ¶100 Greer pled guilty to intimidating a witness on June

25, 2010.       While conducting a presentence investigation for that

conviction,          the    DOC        noticed        the   error        in     its       records.

Subsequently,         it    revoked       Greer's        probation        due       to    his   new

conviction.

    ¶101 Based on the DOC's statements that his probation was

complete    on       September      28,    2007,        Greer     asserts       that      his   due

process rights were violated when the DOC revoked his probation

after    that       date.     He       further       contends     that    his       due   process
rights were violated because the DOC used inconsistent numbers

on his revocation paperwork.

                                                 II

    ¶102 Both the United States Constitution and the Wisconsin

Constitution guarantee the right to due process.                                    U.S. Const.

amend. XIV, § 1; Wis. Const. Art. I, § 8.                                 As the majority

notes,     procedural         due        process        requires        government          action

depriving       a    person       of    life,         liberty,     or    property         to    "be
implemented in a fair manner."                    Majority op., ¶62 (quoting State

                                                 4
                                                                         No.   2011AP2188.awb


v. Laxton, 2002 WI 82, ¶10 n.8, 254 Wis. 2d 185, 647 N.W.2d

784).

    ¶103 Central to procedural due process is notice.                                Fairness

requires that an individual have warning of what acts may lead

to a loss of liberty.            United States v. Dane, 570 F.2d 840, 843

(9th Cir. 1977).         As this court has previously explained:

    Because we assume that [persons are] free to steer
    between lawful and unlawful conduct, we insist that
    laws give the person of ordinary intelligence a
    reasonable opportunity to know what is prohibited, so
    that he [or she] may act accordingly. Such notice is
    a basic requirement of due process.
Green v. State Elections Bd., 2007 WI 45, ¶20, 300 Wis. 2d 164,

732 N.W.2d 750 (quoting Elections Bd. v. Wisconsin Manufacturers

& Commerce, 227 Wis. 2d 650, 597 N.W.2d 721 (1999)).

    ¶104     Due     process          rights       apply    not     only       to    criminal

prosecutions,      but    also       to    probation       revocations.             Gagnon   v.

Scarpelli,     411       U.S.        778,      781-82       (1973).            Accordingly,

probationers     must      be        notified      of   the      conditions         of    their

probation before violations of such conditions can be used as

grounds for revocation.              G.G.D. v. State, 97 Wis. 2d 1, 7-8, 292

N.W.2d 853 (1980) (concluding that there is a "fundamental due

process right to adequate notice of the conditions upon which

the revocation of probation may be premised."); United States v.

Ashland, Inc., 356 F.3d 871, 874 (8th Cir. 2004) ("due process

 . . . includes      a     right          to   have     terms      and     conditions        of

probation    that    are    sufficiently            clear     to   inform      it    of    what

conduct   will     result       in    an    infraction      of     probation");          United




                                               5
                                                                      No.    2011AP2188.awb


States    v.    Simmons,      812   F.2d     561,   565     (9th   Cir.     1987)      ("due

process requires that the probationer receive actual notice").

    ¶105        This    court       has    previously       recognized         that    "the

sufficiency of notice of [probation] conditions [is] crucial to

the basic fairness of the system."                     G.G.D., 97 Wis. 2d at 9.

Logically,      this    notice      requirement       encompasses       the     length       of

probation,       as    well    as    the    fact    that     an    individual         is    on

probation in the first place.

    ¶106 The facts in this case demonstrate that Greer did not

have adequate notice that he was on probation.                          Greer met with

his supervising agent on September 11, 2007, and was advised of

a discharge date of September 28, 2007.                      He met again with the

agent the next day to convert any remaining fees into a civil

judgment and she again told Greer he would be discharged on

September 28, 2007.             When he called his supervising agent on

September 28, 2007, she confirmed that his probation would be

complete at midnight.            Greer then received an absolute Discharge

Certificate stating it was effective September 28, 2007.
    ¶107        The    majority     downplays       these     facts     which     underlie

Greer's       procedural      due   process      arguments.        It    suggests          that

Greer should have questioned his discharge date because he was

present at his sentencing hearing which occurred over five years

prior    to    the    revocation.          Majority    op.,    ¶81.         The    majority

ignores, however, that is exactly what Greer did.

    ¶108        On    September     28,    2007,    Greer     called     his      probation

agent and asked the agent to verify the discharge date.                                    His
agent confirmed that the date was accurate.                        The majority does

                                             6
                                                                        No.    2011AP2188.awb


not    indicate     what    else    Greer        should      have     done     after        being

repeatedly      advised,     both     verbally         and     in    writing,      that       the

discharge date was September 28, 2007.                              What more would the

majority expect that Greer do to uncover the fact that he was

still on probation and that the absolute Discharge Certificate

was erroneously issued?

       ¶109 Despite the fact that Greer was told several times

that he was discharged, the majority states that Greer "knew or

should have known" that he was still on probation.                                     Majority

op.,    ¶67.       However,     the    DOC        is     the     agency       charged        with

administering probation matters.                   Wis. Stat. § 301.03(3).                    Its

rules require probation agents to maintain complete and accurate

records for each offender.            Wis. Admin. Code § DOC 328.04(2)(j).

It was the DOC and its agent that informed Greer his probation

had    been    completed.      Where        the       agency    charged       with     keeping

probation records informed Greer not once, but multiple times

that he had completed his probation, it appears fictitious to

state that Greer "knew or should have known" that his probation
was    not     complete.       Majority          op.,     ¶67.         Contrary        to     the

majority's      assertion,     it     was    not       unreasonable          for   Greer       to

believe what he was repeatedly told by the DOC.

       ¶110     As a consequence of the DOC's representations, Greer

was unaware that he still had to comply with the conditions of

his    probation.      These       included       a    ban     on    alcohol,      a    ban    on

voting, and required periodic reporting to his probation agent.

Greer violated each of these conditions while he thought his
probation was over.          Notably, one of the initial grounds given

                                             7
                                                                         No.    2011AP2188.awb


for Greer's revocation was his admitted consumption of alcohol,

an action he would not have known was prohibited.

       ¶111 The other ground for Greer's violation was his new

conviction.        The conviction was a result of a plea bargain Greer

agreed to, unaware that it could have consequences beyond the

bargained-for sentence.              We cannot know how Greer would have

behaved    had     he     been   aware      that      he    was   still    on        probation.

Admittedly,        Greer    should     be    punished         for   his        new    criminal

behavior.     Greer was convicted for his new offense and received

a separate sentence for it.                      The question is not whether he

should be accountable for his new criminal conduct.                             Rather, the

question is did he have notice that his actions could lead to a

revocation of probation.

       ¶112 "[T]he cardinal and ultimate test of the presence or

absence of due process of law in any administrative proceeding

is the presence or absence of the 'rudiments of fair play long

known   to    our       law."    State      ex       rel.   Madison      Airport        Co.   v.

Wrabetz,     231    Wis.    147,   153,      285       N.W.   504   (1939).            Fairness
requires that Greer have notice of his probationary status.

       ¶113 I conclude that the multiple representations that the

DOC made to Greer indicating that his probation was complete

deprived Greer of adequate notice of his probationary status.

Such    notice       is     required        to        comport     with     due        process.

Accordingly, I respectfully dissent.

       ¶114 I am authorized to state that CHIEF JUSTICE SHIRLEY S.

ABRAHAMSON joins this dissent.



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