Defendant
credited for time on ES hold
By
David Ziemer
Wisconsin Law Journal
April
26, 2006
| What
the court held Case:
State v. Presley, No. 2005AP359-CR. Issue:
When a defendant is given concurrent sentences, one on a new charge, and another
after revocation of extended supervision, is he entitled to presentence credit
on both sentences? Holding:
Yes. Section 973.155 and the Supreme Court's holding in State v. Beets require
that credit be given on both charges from the date of arrest until the date of
sentencing. Counsel:
Martin, Richard D., Milwaukee, for appellant; Donohoo, Robert D., Milwaukee; Weber,
Gregory M., Madison; Sanders, Michael C., Madison, for respondent. |
A prisoner
on extended supervision does not recommence serving his prison sentence until
his reconfinement hearing.
The
Wisconsin Court of Appeals on April 18 rejected the State’s position —
that the sentence begins as soon as the supervision is revoked. Accordingly, the
court held that an offender who has had his extended supervision revoked is entitled
to sentence credit on any new charges until the trial court resentences him from
the available remaining term of extended supervision.
Lee
Terrence Presley was arrested on Jan. 2, 2004 for delivery of cocaine. At the
time, he was on extended supervision. On March 17, 2004, his extended supervision
was revoked.
He
later pleaded guilty to the new cocaine charge. He was resentenced on the old
charges, and sentenced on the new charge, on the same day — 138 days after
the date of arrest.
On
the new charge, Presley was sentenced to 30 months of incarceration and 30 months
of extended supervision. On the old case, the trial court reconfined him for five
months and three days.
The
trial court ordered the sentences to be served concurrently and gave Presley sentence
credit on the new charge for the time he spent in custody from the date he was
arrested to the date his extended supervision was revoked.
Despite
the trial court’s pronouncement, the judgment of conviction did not reflect
any credit on the new sentence. Presley filed a postconviction motion, initially
seeking the credit the trial court granted, and then amending it to request credit
for the full 138 days.
Milwaukee
County Circuit Court Judge John Siefert determined that Presley was entitled to
credit only for the time spent in custody between his arrest and the day his extended
supervision was revoked on the new charge.
Presley
appealed, and the court of appeals reversed, in a decision by Judge Patricia S.
Curley.
The
court found sec. 973.155 controls when an offender is entitled to sentence credit.
Subsection (1) provides: “(a) A convicted offender shall be given credit
toward the service of his or her sentence for all days spent in custody in connection
with the course of conduct for which sentence was imposed. As used in this subsection,
‘actual days spent in custody’ includes, without limitation by enumeration,
confinement related to an offense for which the offender is ultimately sentenced,
or for any other sentence arising out of the same course of conduct, which occurs:
1.
While the offender is awaiting trial;
2.
While the offender is being tried; and
3.
While the offender is awaiting imposition of sentence after trial.
(b)
The categories in par. (a) include custody of the convicted offender which is
in whole or in part the result of a probation, extended supervision or parole
hold under s. 302.113 (8m), 302.114 (8m), 304.06 (3), or 973.10 (2) placed upon
the person for the same course of conduct as that resulting in the new conviction.”
The
court concluded that the language of the statute, and the Wisconsin Supreme Court’s
decision in State v. Beets, 124 Wis.2d 372, 369 N.W.2d 382 (1985), support allowing
sentence credit until the date of the sentencing.
In
Beets, the defendant was on probation when he was arrested for burglary. His probation
was revoked two months after the arrest, and he was sentenced to prison a month
later. He was not sentenced for the new burglary case until seven months after
that.
Although
the new sentence was imposed concurrent to the earlier sentences, the Supreme
Court held that he was not entitled to credit for the seven months between the
two sentencings.
The
court wrote, “any connection which might have existed between custody for
the drug offenses and the burglary was severed when the custody resulting from
the probation hold was converted into a revocation and sentence.” Id. at
379.
The
court of appeals concluded that, like the offender in Beets, Presley did not begin
serving a sentence for the earlier crimes until the trial court resentenced him.
The
court also relied on its holding in State v. Swiams, 2004 WI App 217, 277 Wis.
2d 400, 690 N.W.2d 452, that a reconfinement hearing is a sentencing.
The
court acknowledged that an extended supervision reconfinement hearing is “a
different species of sentencing than occurs at either a probation or parole revocation
sentencing hearing,” but found there is “no meaningful reason to treat
an extended supervision revocation differently when determining sentence credit.”
Finally,
the court cited sec. 304.072(4), which provides that the sentence of a revoked
parolee or person on extended supervision resumes on the day he is received at
a correctional institution.
The
court wrote, “If the State’s position were to be adopted — that
Presley was serving a sentence once the extended supervision was revoked —
it would appear to conflict with sec. 304.072(4), which unambiguously states that
the sentence begins once the offender is transported and received at a correctional
institution, not when the revocation occurs.”
Accordingly,
the court held that Presley is entitled to sentence credit on the new charge from
the date of his arrest until the day of sentencing on both charges, and reversed.
Judge
Ralph Adam Fine wrote a concurrence, to emphasize that a post-revocation reconfinement
order is not a “sentencing” for all purposes.
Click
here for Case Analysis.
David
Ziemer can be reached by email.
