PUBLISHED OPINION
Case No.: 94-0747-CR
Complete
Title
of
Case:STATE OF
WISCONSIN,
Plaintiff-Respondent,
v.
ANTUAN MCCLINTON,
Defendant-Appellant.
Submitted
on Briefs: October 6, 1994
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: June 15, 1995
Opinion
Filed: June
15, 1995
Source
of APPEAL Appeal from an order
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Rock
(If
"Special" JUDGE: J.
Richard Long
so
indicate)
JUDGES: Dykman,
Sundby, and Vergeront, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSFor the defendant-appellant the
cause was submitted on the brief of Patrick
Donnelly, assistant public defender.
Respondent
ATTORNEYSFor the plaintiff-respondent the
cause was submitted on the brief of James E. Doyle, attorney general,
and Paul Lundsten, assistant attorney general.
|
COURT OF APPEALS DECISION DATED AND RELEASED June
15, 1995 |
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. 94-0747-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
ANTUAN
MCCLINTON,
Defendant-Appellant.
APPEAL
from an order of the circuit court for Rock County: J. RICHARD LONG, Judge.
Reversed.
Before
Dykman, Sundby, and Vergeront, JJ.
SUNDBY,
J. Defendant-appellant Antuan McClinton was convicted of
possession of a controlled substance with intent to deliver, party to a crime,
contrary to §§ 161.41(1m)(cm)1 and 939.05, Stats., 1991-92. He
was subject to a mandatory minimum one-year prison term. The trial court sentenced him to a
seven-year prison term, stayed the sentence, and placed him on probation for
ten years, subject to the condition that he serve twelve months in the Rock
County Jail.
McClinton
filed a postconviction motion asking that the court order the sheriff to grant
him good-time credit under §§ 973.09(1)(d) and 302.43, Stats. The trial
court denied his motion. The court
noted that both statutes provide that a person subject to either statute
"is eligible to earn good time [credit]." The court felt that mere eligibility did not make good-time
credit mandatory, but permitted the court to exercise its discretion under §
973.09(1)(a) to "impose any conditions which appear to be reasonable and
appropriate," including the condition that the jail-term probationer not
earn good-time credit.
The
trial court also relied on Prue v. State, 63 Wis.2d 109, 216
N.W.2d 43 (1974), where the court said that a trial court could grant good time
as a condition of probation "if it desired." Id. at 114, 216 N.W.2d at
45. The trial court stated that if it
construed § 302.43, Stats.,
to be mandatory, the statute would not carry out the intent of the legislature
to give trial courts discretion to impose reasonable conditions upon probation
eligibility.
The
State confesses error. It acknowledges
that Prue holds that § 302.43, Stats., does not authorize good-time credit for a person
serving jail time as a condition of probation.
See Prue, 63 Wis.2d at 112, 216 N.W.2d at 44. However, the State argues that that statute
applies only to persons "sentenced" to jail and not to persons
serving jail time as a condition of probation because probation is not a
"sentence." See id.
at 114-15, 216 N.W.2d at 45-46.
The
State argues that there is a statutory exception to this general rule: § 973.09(1)(d), Stats., makes a narrow class of jail-termers eligible to earn
good-time credit--those confined under § 973.09(4) for a mandatory or
presumptive minimum period of imprisonment of one year or less. Recognizing that §§ 973.09(1)(d) and
302.43, Stats., are ambiguous,
the State examines their legislative history.
In construing a statute, the goal is to give effect to the intent of the
legislature. State v. Schambow,
176 Wis.2d 286, 297, 500 N.W.2d 362, 366 (Ct. App. 1993).
In
1990, the legislature created a number of offenses, principally drug crimes,
which carry minimum mandatory sentences.
In the same session, the legislature created § 973.09(1)(d), Stats.,[1]
which provides probation jail-termers a rough quid pro quo: a defendant who the court confines to jail
to serve a minimum mandatory sentence as a condition of probation may earn good
time for good behavior. The State
argues that the requirement that a person sentenced to a minimum mandatory term
be eligible to earn good time was intended to prevent the trial court or the
sheriff from removing that eligibility.
The
attorney general has adopted that reasoning.
In 74 Op. Att'y Gen. 96, 100 (1985), the attorney general opined that
there is no statute authorizing a sentencing court to deny a jail-termer
good-time eligibility. The State
concludes that the legislature did not intend to allow sentencing judges to
deny sheriffs a tool to prompt good behavior in jails. We agree that the State's reading of the
statutes is the reading most in keeping with the intention of the legislature.
By
the Court.--Order reversed.