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Defendant not entitled to custody credit already given against earlier-imposed sentence

State v. Lazeric R. Maxey, 2015AP2137-CR, 4/6/16, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

Maxey isn’t entitled to credit on time he spent in custody relating to two cases for which he’s serving consecutive sentences because he hasn’t shown the credit wasn’t given on the earlier-imposed sentence.

Maxey was on ES for a felony when he was arrested for a new misdemeanor offense. He signed a signature bond on the new case but sat on an ES hold for 79 days, until he was placed on probation for the misdemeanor and the ES hold was lifted. Not long after he was arrested again and held in custody on ES and probation holds. After 59 days ES was revoked and Maxey was returned to prison to serving reconfinement time. He was later given a consecutive sentence on the misdemeanor. The sentencing judge denied Maxey’s request for 138 days (79 plus 59) on the misdemeanor sentence. (¶¶2-7).

Under State v. Boettcher, 144 Wis. 2d 86, 423 N.W.2d 533 (1988), when a defendant has credit relating to two offenses for which consecutive sentences are imposed, the credit is given toward one of the two sentences; thus, Maxey is entitled to the 138 days on either the felony sentence or the misdemeanor sentence, but not both. (¶14). Citing State v. Obriecht, 2015 WI 66, ¶36, 363 Wis. 2d 816, 867 N.W.2d 387, Maxey argues the 138 days couldn’t be credited toward the felony because there was no incarceration time remaining on the felony sentence; therefore, it must be credited toward the misdemeanor sentence. (¶13).

But the revocation order and warrant for the felony case shows there was 2 years, 6 months, and 2 days of ES available to impose as reconfinement time, “more than sufficient [time] to receive the 138 days of sentencing credit.” (¶¶4, 13). Further, the revocation paperwork recommended the 138 days be credited to the recofinement time, and Maxey has not shown that credit was not given. (¶¶4, 15). If it wasn’t, he can petition DOC for the credit under § 973.155(5).

Maxey would be on to something if ES hadn’t been revoked and he didn’t have to serve reconfinement time. But ES was revoked, and according to the state’s brief (at 3) DOC imposed 2 years, 6 months, and 2 days of reconfinement, which is every available day and, as the court says, more than enough time to absorb the 138 days of credit.

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