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Sentence credit – Delayed Report Date Due to Jail Overcrowding

State v. Anthony J. Dentici, Jr., 2002 WI App 77, PFR filed 2/5/02
For Dentici: Joseph E. Redding

Issue/Holding:

¶1 … Dentici claims that he is entitled to twenty-five days’ credit pursuant to State v. Riske, 152 Wis. 2d 260, 448 N.W.2d 260 (Ct. App. 1989), because, after being sentenced to sixty days at the House of Correction as a condition of probation, he was unable to serve his sentence due to overcrowding. Because of the holding in Riske, that a person who is absent from jail through no fault of his own is entitled to sentence credit, we are compelled to reverse the order denying Dentici’s motion for reconsideration, and remand the cause with directions to credit his sentence for the period of February 3, 1997, to February 28, 1997.

As suggested, Dentici reported to HOC on 2/3, and was turned away because of overcrowding, until 2/28, ¶2. The opinion stresses “that Dentici was sentenced on February 3, 1997 — a sentence that necessarily commenced with the Sheriff’s delivery of Dentici to the House of Correction,” ¶10. In other words , the court didn’t stay the sentence to a later date. It was also significant that Dentici was given a specific return date; the opinion likens his situation to “leave for a temporary period of time,” ¶11. The implication, though, is exposure to an escape charge for failure to return as specified, ¶12. Note, too, that this was time served as a condition of probation — credited against a post-revocation sentence.

UPDATE: What, though, of the separate but somewhat related problem of entitlement to credit where the authorities mistakenly release the inmate? See, e.g., Thompson v. Cockrell, 263 F.3d 423 (5th Cir. 2001) (“We conclude that Thompson has a liberty interest in the calendar time following his erroneous release, which entitles him to the procedural protections set forth in Wolff.”). Indeed, there seems to have been a common law rule that a defendant is entitled to credit for time spent at liberty after “erroneous” release, on the theory that a prisoner can’t be forced to serve the sentence “in installments.” See, e.g., Little v. Holder, 11th Cir No 03-13134, 1/18/05. And,Dunne v. Keohane, 14 F.3d 335, 336 (7th Cir. 1994):

… There is, however, a common law rule, which has been held applicable to federal sentencing, that unless interrupted by fault of the prisoner (an escape, for example) a prison sentence runs continuously from the date on which the defendant surrenders to begin serving it. The government is not permitted to delay the expiration of the sentence either by postponing the commencement of the sentence or by releasing the prisoner for a time and then reimprisoning him. The government is not permitted to play cat and mouse with the prisoner, delaying indefinitely the expiation of his debt to society and his reintegration into the free community. Punishment on the installment plan is forbidden. …

Useful survey, in Vega v. U.S., 3rd Cir No. 05-5105, 7/11/07, agreeing with Dunne that right to credit is rooted in common law, not constitutional imperative, and ultimately concluding:

Therefore, in order for a prisoner to receive credit for time he was erroneously at liberty, the prisoner’s habeas petition must contain facts that demonstrate that he has been released despite having unserved time remaining on his sentence. Once he has done this, the burden shifts to the government to prove either (1) that there was no negligence on the part of the imprisoning sovereign, or (2) that the prisoner obtained or retained his liberty through his own efforts.

But that rule doesn’t apply where service of sentence “has merely been delayed .. because a delay in the commencement of a sentence does not, by itself, constitute service of that sentence,” id., citing U.S. v. Barfield, 11th Cir No 03-14077, 1/14/05 (failure to execute sentence for 8 years (!) didn’t create entitlement to sentence credit). Assuming that this view of the common law (distinguishing between erroneous release and delay) is correct, then it might be said that the Riske-Dentici line of authority is at odds with common law; but the Wisconsin cases are based on statutory analysis, and therefore shouldn’t be in danger of being unsettled.

Interesting survey of authorities, and novel result, may be found in Commonwealth v. West, 2005 PA Super 61, ¶16 (“general common law rule that ‘where a final sentence of imprisonment had been rendered, delay in executing such a sentence did not preclude a subsequent enforcement of the sentence,'” quoting Commonwealth v. Blair, 699 A.2d 738, 741 (Pa. Super. 1997)). The court notes that this rule has somewhat softened under the weight of the recently recognized exceptions of waiver and estoppel; but as defined these exceptions seem very narrow and rarely likely to be satisfied. In any event, West specifically disdained reliance on waiver, estoppel, or credit-for-time-at-liberty theories and the court thus doesn’t apply them to the particular facts, ¶18. Instead, the court finds a substantive due process violation where “the trial court recommitted Appellant to prison in 2002 following a 9-year delay in which Appellant remained mistakenly at liberty on an appeal bond,” ¶1. The court carefully stresses, though, that the court system “on several occasions during the 9-year interval recognized the mistake, yet repeatedly failed to act,” id., and see also ¶22. The result is probably therefore quite fact-specific — as illustrated by Bonebrake v. Norris, 8th Cir No. 03-4012, 8/9/05 (delay of 4+ years in executing sentence, following unsuccessful appeal, didn’t warrant relief against sentence; court apparently limits “waiver theory of jurisdiction” to “conscience-shocking” acts amounting to denial of substantive due process).

 

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