State v. Ryan E. Baker, 2005 WI App 45, PFR filed 3/17/05
For Baker: William E. Schmaal, SPD, Madison Appellate
Issue/Holding: Sentence credit may not be used to satisfy court costs, where costs were imposed under provisions which do not grant authority to waive or otherwise avoid their imposition:
¶11 We turn now to whether credit for pre-sentence incarceration time may be applied to satisfy court costs. The circuit court invoked WIS. STAT. § 973.155 when applying Baker’s incarceration time toward satisfaction of court costs. We conclude that this section does not provide a basis for the circuit court’s action. Section 973.155(1) states that “a convicted offender shall be given credit toward the service of his or her sentence for all days spent in custody in connection with the course of conduct for which sentence was imposed.” Section 973.155 does not address court costs. Rather, its purpose is to ensure that individuals without the means to post bail are not incarcerated longer than those who can afford bail. “[C]onfinement credit is designed to afford fairness—that a person not serve more time than that for which he is sentenced.” State v. Beets, 124 Wis. 2d 372, 379, 369 N.W.2d 382 (1985).
¶12 Some statutes imposing certain court costs provide that a court may waive these costs. Examples include: WIS. STAT. § 973.055(4), which permits a court to waive a $50 domestic abuse assessment if the court determines that imposition of the assessment would have a negative impact on the family; WIS. STAT. § 973.06(2), which allows a court to remit all or part of the taxable costs set forth in that statutory section; and WIS. STAT. § 973.046(1g), which leaves it to the discretion of the court whether to assess the defendant the costs of DNA testing.
¶13 None of the statutes under which Baker was assessed costs—WIS. STAT. §§ 814.61(1)(a), 814.60(1), or 973.045—include mechanisms by which a court could waive these costs or satisfy them by any other means. Each of these statutes contains mandatory language regarding the payment of the particular costs imposed. Section 814.61(1)(a) provides that “[i]n a civil action, a clerk of court shall collect the fees provided in this section ….” Section 814.60(1) mandates that “[i]n a criminal action, the clerk of court shall collect a fee of $20 ….” Likewise, § 973.045 directs that “the court shall impose a crime victim and witness assistance surcharge … [and] the clerk of court shall collect and transmit the amount to the county treasurer …. ” Because none of the statutes under which costs were assessed here provide authority to waive the costs or to satisfy them by other means, we conclude that the circuit court erred when it applied pre-sentence incarceration time toward satisfaction of Baker’s court costs.