On Point blog, page 1 of 1
COA addresses dual sentence credit when imposed and stayed sentence is lifted in case recommended for publication.
State v. Scott R. Dachelet, 2023AP970, 6/25/25, District II (recommended for publication); case activity
Wisconsin’s seemingly straightforward sentence credit statute – Wis. Stat. § 973.155(1)(a) – is required to accommodate an infinite variety of scenarios. Here, the COA addressed whether a defendant is entitled to sentence credit on a withheld sentence where probation was revoked while also receiving credit for an imposed and stayed sentence that was revoked. Because lifting the stay on the imposed and stayed sentence severed the connection between the defendant’s custody and the case for which his sentence was withheld, the Court found that he was not entitled to dual sentence credit.
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).
Driver’s prior IID order hadn’t expired, so his prohibited alcohol concentration was 0.02, not 0.08
State v. Dominic A. Caldiero, 2021AP1163-CR, District 4, 4/28/22 (one-judge decision; ineligible for publication); case activity (including briefs)
When he drove in 2019, Caldiero was still “subject to” a 2015 court order under § 343.301 (2013-14) restricting his operating privilege to cars with an ignition interlock device (IID) because the time period on that restriction does not begin to run till DOT issues him a driver’s license, and that hadn’t happened as of the date he was driving.
Defense win! COA holds imposed-and-stayed prison sentence begins on receipt at Dodge
State v. Joseph L. Slater, 2021 WI App 88; case activity (including briefs)
Slater had a prison sentence imposed and then stayed in favor of probation. While on probation, he was arrested on three new charges. The department of corrections revoked his probation pretty quickly, but he didn’t get sent to prison: instead, he remained in the county jail for over three years while those new charges were pending. After a jury convicted him on on the new charges, he got three new concurrent prison sentences. The court of appeals now holds that Slater should be credited on those new sentences for the years he spent in jail awaiting trial.
Challenges to armed robbery conviction and sentence rejected, but sentence credit granted
State v. Sean N. Jones, 2018AP948-CR, District 3, 8/20/19 (not recommended for publication); case activity (including briefs)
Jones makes various challenges to his conviction and sentence for being to party to the crime of armed robbery. The court of appeals rejects all of his claims except the last one, involving sentence credit.
Defense win: Person revoked from ES entitled to sentence credit until return to prison
State v. Larry Davis, 2017 WI App 55; case activity (including briefs)
Applying § 304.072(4) and State v. Presley, 2006 WI App 82, 292 Wis. 2d 734, 715 N.W.2d 713, the court of appeals holds that a person who is revoked from extended supervision resumes serving his sentence when he is received in the prison system, not when revocation occurs; he is therefore entitled to sentence credit up to the date he returns to prison.
Terry stop — reasonable suspicion; DNA surcharge — exercise of discretion; sentence credit — time between revocation and return to prison
State v. Manuel R. Williams, 2012AP357-CR, District 1, 1/29/13; court of appeals decision (not recommended for publication); case activity
Terry stop – reasonable suspicion
Police had reasonable suspicion to stop defendant where, based on suppression hearing testimony, circuit court found that: the officers were sent to a shooting in “a high risk area”; when police arrived, they noticed Williams because he had a big jacket on and was holding his hands in an “odd” way,
Sentence Credit – Concurrent Sentences: Each Must Be Analyzed Separately for “Connection,” Though Imposed at the Same Time
State v. Elandis D. Johnson, 2009 WI 57, affirming 2008 WI App 34
For Johnson: Meredith J. Ross, UW Law School
Issue/Holding:
¶76 We conclude that Wis. Stat. § 973.155 imposes no requirement that credit applied toward one sentence also be applied toward a second sentence if the basis for applying the same credit to both sentences is merely that the sentences are concurrent and are imposed at the same time.
Sentence Credit – “course of conduct” – concurrent sentences imposed at different times
State v. Daniel C. Tuescher, 226 Wis.2d 465, 595 N.W.2d 443 (Ct. App. 1999)
For Tuescher: David D. Cook
Issue/Holding: Tusecher’s conviction on one count, out of several counts with concurrent sentences, was vacated for new trial. He continued to serve the remaining sentences, and was ultimately convicted and sentenced on a lesser offense on the vacated count. The court holds that Tuescher is not entitled to sentence credit on the resentenced count for time served between vacating and resentencing.