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  • WisBar Court Review
    November 09, 2021

    Time in Jail After Probation Revocation Counts as Credit Against Sentence

    Jeff M. Brown

    Prisoners hands on jail cell bars

    Nov. 9, 2021 – A man who spent three years in jail awaiting trial and sentencing on armed robbery charges after his probation was revoked is entitled to 1,258 days’ credit against the armed robbery sentences, the Wisconsin Court of Appeals District III has ruled.

    In State v. Slater, 2020AP1936-CR (Nov. 2, 2021), a three-judge panel considered an appeal by Joseph L. Slater, who was denied post-conviction relief in Marathon County Circuit Court.

    Slater pled guilty to a felony drug charge and a misdemeanor drug charge in November of 2001.  A judge sentenced Slater to three years of confinement and ten years of extended supervision on the felony charge but stayed the sentence and gave Slater eight months’ probation. On the misdemeanor charge, the judge withheld the sentence and gave Slater two years’ probation concurrent to the probation on the felony charge.

    In February of 2002, Slater was arrested and charged with three counts of armed robbery. Slater’s probation officer placed a hold on him and Slater was taken to jail on Feb. 20, 2002.

    The circuit court revoked Slater’s probation and on June 7, 2002 held a sentencing-after-revocation hearing. The court ordered a three-month jail term for Slater on the misdemeanor drug charge, consecutive to the stayed sentence on the felony drug charge.

    After the probation revocation, Slater remained in the Marathon Count Jail until he was convicted on the armed robbery counts in March of 2005. The court sentenced Slater on Aug. 1, 2005, and determined that he was entitled to 164 days’ credit for the period from June 7, 2002 to June 7, 2005. When questioned by the judge, Slater’s lawyer had no objection to the calculation of Slater’s credit.

    The judge sentenced Slater to three 30-year sentences, each with 20 years initial confinement and 10 years’ extended supervision, to be served concurrently.

    Through both a pro se motion and motion filed by appointed counsel, Slater ought an additional 1,096 days of credit against the armed robbery sentences – the three years from June 7, 2002 to June 7, 2005 that he spent in jail before his conviction. The circuit court denied the motions.  

    Was Custody Connected?

    Under Wis. Stat. section 973.155(1)(a), a convicted offender is entitled to sentence credit for each day in custody “in connection with the course of conduct for which the sentence was imposed.”

    Jeff M. Brown Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    There was no question that Slater was in custody for three years, wrote Presiding Judge Lisa K. Stark in the opinion for the three-judge panel.  The question was whether Slater’s custody was connected to the conduct for which he was sentenced when he was sentenced on the armed robbery convictions.

    The court agreed with Slater’s contention that the three years he spent awaiting trial and sentencing on the armed robbery charges was connected to the conduct that led to him being sentenced on those charges. It was that conduct that led to his arrest, the revocation of his probation, and his confinement in jail. 

    Wis. Stat. section 937.155(1)(b) specifies that custody which results from a probation hold occasioned by the same conduct that results in a new conviction counts as a credit against the sentence imposed for that new conviction. The issue, wrote Stark, was whether the connection between the three years Slater spent in jail and the armed robbery sentences was cut off by the revocation of his probation on the drug convictions.  

    The circuit court concluded that Slater wasn’t entitled to sentence credit for his three years in custody. Upon the revocation of his probation on the drug convictions, the court reasoned, he began serving the sentences that were imposed for the drug convictions rather than the sentences imposed on the armed robbery convictions. On appeal, Slater argued that he didn’t begin serving the sentences on the drug convictions until he was delivered to the Dodge Correctional Institution.

    Delivery Date is Determinative

    The appellate panel agreed with Slater.

    Wis. Stat. section 973.10(2)(b) is clear that a person who has been sentenced to a crime but granted probation that’s later revoked doesn’t begin to serve his or her sentence until he or she enters the prison. That means, Stark explained, that Slater didn’t begin serving the sentences imposed for the drug convictions until after he was sentenced for the robbery convictions.

    The appellate panel’s decision was congruent with State v. Presley, 2006 WI App 82, 292 Wis. 2d 734, 715 N.W.2d 713, and State v. Davis, 2107 WI App 55, 377, Wis. 2d 678, 901 N.W.2d 488, which both interpreted Wis. Stat. section 304.072(4). That subsection is worded similarly to Wis. Stat. section 973.10(2)(b).

    Under Wis. Stat. section 304.072(4), the sentence of a person who has his or her parole or extended supervision revoked does not resume running until “the day he or she is received at a correctional institution.” The petitioners in Presley and Davis had their extended supervision revoked after being arrested on subsequent charges, and were then convicted and sentenced on the subsequent charges.

    In both cases, Stark wrote, the court of appeals held that the petitioner was entitled to a sentence credit that ran from the date of his arrest until the time he arrived at prison to begin serving a sentence on the charge that led to the revocation of his extended supervision. In both cases, the circuit court had granted credit only for the time from the date of arrest to the date of the revocation of the extended supervision.

    State Argued Against Dual Credit

    The state argued that even if Slater was entitled to credit for the time spent in jail before he was transported to Dodge Correctional Institution, he was not entitled to the extra credit because the extra credit would constitute dual credit.

    The appellate panel found two flaws with that argument.

    “First, there is nothing in the record to indicate whether Slater has been granted – or will be granted – sentence credit for the relevant three-year time period against his imposed-and-stayed sentence in the drug case,” Stark wrote. “The State’s argument regarding dual credit is therefore speculative.”

    It was true that the circuit court did not state whether the sentences imposed on Slater for the armed robbery convictions would run concurrently or consecutively. But, Stark wrote, supreme court precedent holds that in the absence of a contrary statute or a judicial declaration, “‘where there is a present sentence for another offense of one then actually or constructively serving a former sentence, the two sentences run concurrently.’”

    The appellate panel also turned aside the state’s argument that if the circuit court erred by granting Slater only 164 days of credit, it was an error invited by Slater’s lawyer when the lawyer raised no objections to the calculation of the credit at sentencing.

    “The State cites no evidence that trial counsel’s agreement with the prosecutor’s representations was the result of anything other than a mistake,” Stark wrote. “The invited error doctrine is inapplicable under these circumstances.”





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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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