On Point blog, page 1 of 1
Defense Win! SCOW applies Floyd, reverses COA, reinstates grant of 433 days sentence credit
State v. Michael K. Fermanich, 2023 WI 48, 6/14/23, reversing a per curiam court of appeals decision; case activity (including briefs)
The key takeaway here is that five justices reaffirm and apply State v. Floyd, 2000 WI 14, 232 Wis. 2d 767, 606 N.W.2d 155, and hold that Fermanich is entitled to 433 days sentence credit for time he spent in custody in connection with Oneida County charges that were dismissed and read-in at his Langlade County sentencing. (Opinion, ¶2). A concurrence by Justice Dallet is worth reading as a preemptive response to the dissent’s answer to the question for which the court granted review: whether State v. Tuescher should be reexamined and limited to the unique circumstances present there. A dissent by Chief Justice Ziegler and R.G. Bradley would have overruled Floyd, denied Fermanich credit under Tuescher, and required him to return to custody for an additional 433 days. (See Op., ¶19, Dallet, concurring).
Credit where credit is due….lack of a credit petition to DOC notwithstanding to the contrary
State v. Tanya M. Liedke, 2020AP33-CR, Distirct 2, 12/29/21 (not recommended for publication); case activity (including briefs)
The circuit court correctly concluded that Liedke wasn’t in custody for sentence credit purposes while she was on GPS monitoring in connection with the case on which she was sentenced. But she’s entitled to some credit for other time when she was in custody, and the circuit court was wrong to deny her request on the grounds that it was DOC’s responsibility to address her request.
SCOW: Mistakenly released inmate doesn’t get credit for time at liberty
State v. Zachary S. Friedlander, 2019 WI 22, 3/12/19, reversing an unpublished court of appeals decision; case activity (including briefs)
State v. Magnuson, 2000 WI 19, 233 Wis. 2d 40, 606 N.W.2d 536, laid down a bright-line rule for determining whether a person was in “custody” for purposes of earning sentence credit. The supreme court holds that rule is inconsistent with cases holding that an inmate who is mistakenly released from custody continues to serve his or her sentence, and so is entitled to credit for the time he or she was at liberty.
Generally, § 973.155 — “Custody” and “Escape”
State ex rel. Michael J. Thorson v. Schwarz, 2004 WI 96, reconsideration denied, 2004 WI 133, affirming unpublished decision of court of appeals
For Thorson: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶16. The term “custody” is not defined in Wis. Stat. § 973.155. To fill this void, Wisconsin courts have relied upon the definition set forth in Wis.
Sentence Credit — Stay of Sentence (During Period of Hospitalization), Effect of
State v. Rick L. Edwards, 2003 WI App 221, PFR filed 10/24/03
For Edwards: Margaret A. Maroney, SPD, Madison Appellate
Issue/Holding: A probationer whose jail confinement has been stayed during a period of hospitalization is not in custody for § 946.42 purposes and can’t be charged with escape for leaving the hospital and failing to return to jail; nor, as a result, is there any entitlement to sentence credit while the jail confinement is stayed.