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Escape, § 946.42 – “Actual Custody” – Dismissal of Charge but Parole Violation “Apprehension Request”

Meriter Hospital v. Dane County, 2003 WI App 248, affirmed, 2004 WI 145

Issue: Whether issuance of an “apprehension request” for alleged parole violation, following dismissal of pending charges upon jail inmate’s transfer to a hospital for treatment, leaves the person in “custody.”

Holding:

… We recently decided that a person did not have criminal status while hospitalized once a trial court stays confinement. State v. Edwards, 2003 WI App 221, __ Wis. 2d __, __ N.W.2d __. We reached that determination in State v. Edwards, which addressed jail credits for hospitalized offenders. An offender subject to an escape charge for leaving the hospital was in “custody” pursuant to Wis. Stat. §946.4291). Id., ¶21. We did not consider the fact that the jail administrator instructed the hospital to notify him when it was time for the hospital to release the offender probative of criminal status. Id., ¶5. Similarly, Gibson was not in custody after the trial court dismissed the charges against him. The State could not have charged him with escape if he had left the hospital. See § 946.42….

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