PUBLISHED
OPINION
Case No.: 96-0124-CR
Complete Title
of Case:
State of Wisconsin,
Plaintiff-Respondent,
v.
David Thompson,
Defendant-Appellant.
Submitted on Briefs: December
3, 1996
Oral Argument: ---
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: January
14, 1997
Opinion Filed: January 14, 1997
Source of APPEAL Appeal
from judgments and an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Milwaukee
(If "Special", JUDGE: PATRICIA D. McMAHON
so indicate)
JUDGES: WEDEMEYER,
P.J., SCHUDSON and CURLEY, JJ.
Concurred: ---
Dissented: ---
Appellant
ATTORNEYSFor the
defendant-appellant the cause was submitted on the briefs of Patricia Flood,
assistant state public defender of Milwaukee.
Respondent
ATTORNEYSFor the
plaintiff-respondent the cause was submitted on the briefs of James E. Doyle,
attorney general and Paul Lundsten, assistant attorney general.
|
COURT OF APPEALS DECISION DATED AND RELEASED January 14, 1997 |
NOTICE |
|
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0124-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
State of Wisconsin,
Plaintiff-Respondent,
v.
David Thompson,
Defendant-Appellant.
APPEAL from judgments
and an order of the circuit court for Milwaukee County: PATRICIA D. McMAHON, Judge. Affirmed.
Before Wedemeyer, P.J.,
Schudson and Curley, JJ.
WEDEMEYER, P.J. David Thompson appeals from judgments
entered after he pled guilty to disorderly conduct while armed as party to a
crime and possession of a firearm by a felon contrary to §§ 947.01,
939.63, 939.05 and 941.29(2), Stats. He also appeals from an order denying his
postconviction motion seeking sentence modification. He claims that the trial court erred when it imposed sentences in
this case to run consecutive to previously imposed but stayed sentences in a
prior case, where probation had not yet been revoked. Because § 973.15(2), Stats.,
does allow the trial court to impose sentences under these circumstances, we
affirm.
I. BACKGROUND
Thompson was originally
charged with recklessly endangering another's safety, disorderly conduct while
armed, battery and felon in possession of a firearm. On June 19, 1995, he pled guilty to the disorderly conduct and
felon in possession of a firearm charges.
The remaining charges were dismissed.
The trial court sentenced
Thompson to nine and eighteen months to run consecutive to each other and to
any other previously imposed sentence.
At the time of the sentencing, Thompson had been placed in the intensive
sanctions program as an alternative to revoking his probation relating to a
previous conviction. The trial court
had imposed and stayed a four-year prison sentence placing Thompson on
probation for the previous conviction.
Approximately two months after the sentencing in the instant case,
Thompson's probation in the prior case was revoked.
Thompson filed a
postconviction motion asking the trial court to modify the sentence. His argument was that the trial court could
not impose the sentence in this case consecutive to the sentence in the earlier
case because his probation had not been revoked. The trial court denied his motion. He now appeals.
II. DISCUSSION
The issue in this case
presents a question of law that we review de novo. State v. Lipke, 186 Wis.2d
358, 363, 521 N.W.2d 444, 445-46 (Ct. App. 1994). The issue is whether § 973.15(2), Stats., authorizes a trial court to impose a sentence
consecutive to a previously imposed and stayed sentence where the previous
sentence is to be served only upon revocation of probation and probation has
not yet been revoked. The trial court
concluded that such authority exists under the statute. After our independent review, we agree.
Section 973.15(2), Stats., provides: “Except as provided in par. (b), the court
may impose as many sentences as there are convictions and may provide that any
such sentence be concurrent with or consecutive to any other sentence imposed
at the same time or previously.”
In construing a statute,
we look to its plain meaning. State v.
Woods, 173 Wis.2d 129, 136, 496 N.W.2d 144, 147 (Ct. App. 1992). We conclude that the plain meaning of this
statute authorizes the trial court to impose a sentence in the case consecutive
to a previously imposed and stayed sentence even if the defendant is placed on probation. The key statutory language states: “the court ... may provide that any such
sentence be ... consecutive to any other sentence imposed at the same time or
previously.” In the instant case, the
trial court ordered that the sentence in the case before it run consecutively
to the previously imposed sentence.
This is consistent with the plain language of the statute.
We are not persuaded by
any of Thompson's arguments to the contrary.
He argues that the previous sentence is not actually imposed
until probation is revoked. This
assertion is incorrect. Thompson's
sentence in the previous case was imposed at the time of sentencing. See § 973.09(1)(a), Stats.[1] The trial court did not withhold sentencing,
but rather stayed the sentence actually imposed and placed Thompson on
probation. Id. Revocation of probation is not required to
actually impose the sentence.
The revocation merely triggers the execution or implementation of the
sentence.
Thompson also argues
that the trial court in the instant case erred because it imposed a sentence
consecutive to probation, which is not authorized by statute. We reject this argument as well because that
is not what happened in this case. The
trial court here did not impose a sentence consecutive to probation. It imposed the sentence consecutive to any
previously imposed sentence.
Moreover, our
interpretation of the plain meaning of this statute is supported by its
legislative history. According to the
Judicial Council Note commenting on a revision of § 973.15(2)(a), Stats., the old language which allowed
a sentence to run consecutive to another sentence a defendant was “then
serving” was removed from the current version because the “then serving”
language “failed to achieve its apparent purpose of allowing consecutive
sentencing in situations involving probation and parole revocations, escapes,
etc.” See Judicial Council
Committee Note, 1981, § 973.15(2)(a), Stats. Removing the “then serving” language evinces
an intent to allow the trial court to impose the sentence consecutively under
the circumstances present in this case because the new statutory language does
not require a defendant to be actually serving a previously imposed
sentence. We conclude that the
legislature intended to allow trial courts to impose sentences consecutive to
previously imposed sentences even in the situation where the previous sentence
was stayed and the defendant was placed on probation and the probation had not
yet been revoked at the time of the current sentencing. This is supported both by the plain language
of the statute as well as the legislative history.
Based on the foregoing,
the trial court did not err when it imposed a sentence consecutive to a
previously imposed sentence despite the fact that Thompson's probation had not
been revoked.
By the Court.—Judgments
and order affirmed.