COA denies sentence credit for time spent serving later- vacated reconfinement sentence in decision recommended for publication
State v. Steven F. Zastrow, 2025AP2024, 7/21/26, District III (recommended for publication); case activity
Relying on Beets, COA concludes that Zastrow is not entitled to credit against a consecutive sentence for the time he spent serving a reconfinement sentence that was later vacated.
Zastrow appeals an order denying his postconviction motion for additional sentence credit. The procedure here is a bit messy, but Zastrow was charged with burglary and other offenses while he was on extended supervision in three cases the COA refers to as “the forgery cases.” He was in custody on a hold in the forgery cases and in connection with the burglary case until his ES was revoked and he returned to prison. (¶1). Zastrow was found guilty on all charges in the burglary case, but the convictions were vacated and Zastrow was granted a new trial during postconviction proceedings. (¶7). Based on this, Zastrow challenged the revocation and that order was ultimately vacated. A few years later, the state retried Zastrow in the burglary case, and he was found guilty of several counts. (¶8).
In total, Zastrow served 301 days in jail prior to his return to prison on the revocation, then he served 1,275 days in prison on the revocation sentence until DHA vacated the revocation order. (¶6, ¶8). After the second trial and convictions in the burglary case, the circuit court sentenced Zastrow and awarded him sentence credit that included the 301 day period prior to his revocation, but not the 1,275 days served on the later-vacated revocation sentence. (¶10). Zastrow moved for an additional 1,275 days of credit, arguing that he was entitled to those additional days because, when DHA vacated the revocation of his extended supervision in the forgery cases, the revocation became “null and void” and had to be “treated as if it never existed.” Because the revocation was “nullified,” Zastrow argued that the severance of the factual connection between his custody in the forgery cases and the custody in this case that occurred upon his return to prison had to be treated as if it never existed. (¶11). The circuit court denied the motion. (¶12).
Zastrow renews his arguments and seeks the 1,275 days of sentence credit on appeal. (¶13). There is no dispute that Zastrow was in custody for purposes of WIS. STAT. § 973.155 during the relevant time period. The question is whether that custody was in connection with the burglary case. Pursuant to State v. Beets, COA concludes that the period Zastrow spent in prison on the revocation was not in connection with the course of conduct for which his sentences were imposed in this case because the revocation of his ES and his return to prison severed the custody’s factual
connection to this case. (¶18).
COA goes on to further analyze Beets and the related line of sentence credit cases, as well as Zastrow’s additional arguments. (¶¶19-38). However, the court holds that “the well-established sentence credit principle in Beets defeats Zastrow’s claim that he is entitled to an additional 1,275 days of sentence credit.” (¶39).