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Defense win: Defendant entitled to a day of credit for portion of a day spent in custody

State v. Antonio Johnson, 2018 WI App 2; case activity (including briefs)

Under § 973.155(1)(a) a convicted offender is entitled to credit for “all days spent in custody” in connection with the course of conduct for which sentence is imposed. So what’s a “day” for credit purposes? Any part of a calendar day, as Johnson claims? Or a continuous twenty-four-hour period, as the state asserts? Based on supreme court cases dealing with credit, the court of appeals agrees with Johnson that it is any part of a calendar day.

Johnson was in and out of jail while a drug case against him was pending, and on three days he was in custody less than twelve hours; on one day, in fact, he was in custody less than an hour. The circuit court denied him credit for those three days, citing “[t]he policy of the court” requiring more than 12 hours of custody for the day to be credited. (¶¶3-4).

Not only does that apparently arbitrary “policy” have no basis in § 973.155, it is inconsistent with the supreme court’s application of the statute in State v. Carter, 2010 WI 77, 327 Wis. 2d 1, 785 N.W.2d 516, State v. Johnson, 2009 WI 57, 318 Wis. 2d 21, 767 N.W.2d 207, and State v. Obriecht, 2015 WI 66, 363 Wis. 2d 816, 867 N.W.2d 387. In those cases the court clearly counted parts of days in custody as full days for sentence credit purposes. (¶¶6-7). “The facts of the case now before us provide us with no discernible, substantive basis for distinguishing this case from CarterJohnson, and Obriecht as relevant to the sentence credit consideration. As a result, we are compelled to apply Wis. Stat. § 973.155(1)(a) in the same manner as our supreme court.” (¶8).

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