Section 973.155(4) says that sentence credit granted to inmates serving sentences of one year or less in a county jail or a house of correction “shall include earned good time….” That language doesn’t apply to inmates who are placed on probation and given conditional jail time with good time because probation condition time isn’t a sentence.
Baade was given two years confinement and two years of ES, stayed, and placed on probation with the condition that he serve 12 months in jail. He was convicted of OWI 4th, a crime with a mandatory minimum sentence, so § 973.09(1)(d) required that Baade be given good time under § 302.43 on the 12-month term. With the good time he earned he was released after 9 months.
Baade’s probation was eventually revoked and he started serving his prison sentence. Everyone agreed he was entitled to sentence credit for the 9 months he spent in custody serving the condition time. But Baade also persuaded the circuit court that his one year of condition time in the county jail constituted a sentence of one year or less for purposes of § 973.155(4) and that he should therefore also get credit for the three months of good time he earned, even though he wasn’t in custody. (¶2).
The court of appeals reverses, holding that the one year of confinement in the county jail as a condition of probation is distinct from the four-year stayed sentence:
¶8 We have historically distinguished a probationary condition of confinement from a “sentence” in the application of good time statutes. In Prue v. State, 63 Wis. 2d 109, 113, 216 N.W.2d 43 (1974), the Wisconsin Supreme Court held that probationary confinement in jail “is not intended to be serving a sentence.” The offender in Prue sought good time reduction on a six-month probationary term in a county reforestation camp, which was governed by the same good time laws applicable to county jail inmates. Id. at 111. The court rejected his request on the basis that a state law “providing for a diminution of sentence of one fourth of the term for good behavior for every inmate in a county jail is not applicable to persons confined in a county jail as a condition of probation.” Id. at 112. The Prue court reasoned that “[p]robation is an alternative to a sentence; and the fact that a condition of confinement in the county jail is similar to the confinement of a sentence … does not make a probation a sentence.” Id. at 114. We relied on Prue in State v. Fearing, 2000 WI App 229, ¶¶9-10, 13, 239 Wis. 2d 105, 619 N.W.2d 115, to deny an offender’s request for the right to earn good time for jail confinement imposed as a condition of probation. In accordance with this precedent, we conclude that Baade was not “serving [a] sentence of one year or less” pursuant to Wis. Stat. § 973.155(4) when he was confined in county jail as a condition of his probation.