COURT OF APPEALS DECISION DATED AND FILED September 1, 2009 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT III |
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State of
Plaintiff-Respondent, v. Ira A. Antone,
Defendant-Appellant. |
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APPEAL
from a judgment and an order of the circuit court for
¶1
BACKGROUND
¶2 Following conviction in this case, Antone received a withheld
sentence and two years’ probation. At
the time, Antone was also on extended supervision in another case from
¶3 On September 10, 2008, Antone was ordered reconfined in the
DISCUSSION
¶4 Antone argues he is entitled to an additional thirty-four
days’ sentence credit for the time spent in custody from the Vilas County
reconfinement hearing until the sentencing hearing in the present case. We independently review the application of
the sentence credit statute to an undisputed set of facts. State
v. Abbott, 207
¶5 We are not aware of any prior case involving the situation presented here. Wisconsin Stat. § 973.155 provides that 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.” This includes “custody of the convicted offender which is in whole or in part the result of a probation, extended supervision or parole hold ... placed upon the person for the same course of conduct as that resulting in the new conviction.” Wis. Stat. § 973.155(1)(b). The statute does not, however, address what happens when, as here, a person is serving both extended supervision and probation, the person is placed in custody on a hold, both supervisions are revoked for the rules violation, the person is ordered reconfined on the extended supervision case but not transferred to prison, and the person is later sentenced to concurrent confinement on the probation case.
¶6 Antone argues he is entitled to the “dual credit” because it is the commencement of a separate sentence that severs the connection between a pending case and any custodial confinement. The State, on the other hand, contends it is the sentencing that severs the connection. Often these two events coincide. However, in the case of revoked extended supervision, the reconfinement hearing will typically not coincide with actual commencement of the sentence. This is because:
The sentence of a revoked parolee or person on extended supervision resumes running on the day he or she is received at a correctional institution subject to sentence credit for the period of custody in a jail, correctional institution or any other detention facility pending revocation according to the terms of s. 973.155.
Wis. Stat. § 304.072(4).
¶7 In two prior cases, the court held it was the date of the
first sentencing hearing that severed the connection and terminated dual
credit.
¶8 Beets involved a probation hold, revocation, and sentencing and
a subsequent sentencing on new charges stemming from the conduct causing the
probation hold. Beets, 124
¶9 The facts in Presley, involving a revocation of extended
supervision, are closer to those here.
However, there the sentencing on both the revoked extended supervision
and the new charge occurred on the same day.[3]
Presley, 292
¶10 Therefore, although in both cases the court concluded the connection between cases was severed on the date of sentencing, we interpret Beets and Presley as standing for the proposition that it is the commencement of the separate sentence that actually severs the connection.[5] Because Antone’s first sentence did not commence until the date of his sentencing in the probation case, he is entitled to dual credit for the entire period of confinement up to that point.
¶11 Additionally, although not critical to our holding, we note
that had Antone been sentenced the same day of his reconfinement hearing, like
in Presley,
he also would have received the dual credit because the sentences were to be
served concurrently. Thus, as in Presley,
292
By the Court.—Judgment affirmed in part and reversed in part; order reversed and cause remanded with directions.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2). All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] Antone’s postconviction motion notes he had already served the entire one-year period of confinement and been released to extended supervision at the time of its filing. Thus, the additional credit will be applied to the remaining term of extended supervision.
[3] We
observed in Presley that a reconfinement hearing is considered a sentencing
hearing for sentence credit purposes. State
v. Presley, 2006 WI App 82, ¶10, 292
[4] The
Criminal Jury Instructions Committee also recognizes, in the sentence credit
context, that sentences after revocation of parole or extended supervision do
not commence until reception at prison. See
While the special materials do not constitute binding
authority, we give their interpretations careful scrutiny because they are
prepared by an exceedingly well qualified group of lawyers, judges, and
scholars. See
[5] Our
interpretation of Beets in this regard mirrors that of the Criminal Jury
Instructions Committee. See