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Sentence Credit — Stay of Sentence (During Period of Hospitalization), Effect of

State v. Rick L. Edwards, 2003 WI App 221, PFR filed 10/24/03
For Edwards: Margaret A. Maroney, SPD, Madison Appellate

Issue/Holding: A probationer whose jail confinement has been stayed during a period of hospitalization is not in custody for § 946.42 purposes and can’t be charged with escape for leaving the hospital and failing to return to jail; nor, as a result, is there any entitlement to sentence credit while the jail confinement is stayed. ¶21, and distinguishing, id. n. 9, State v. Sevelin, 204 Wis. 2d 127, 554 N.W.2d 521 (Ct. App. 1996).

Sevelin was determined to be in pretrial “constructive custody” and therefore entitled to sentence credit for time spent under “furlough” from jail to an inpatient substance abuse treatment center. The court, among other things, stressed that the “legislature has unambiguously provided that inmates should receive sentence credit for all medical care[.}” However, the court was also careful to note that there’d be no entitlement to credit if the inmate were released from bond before going to treatment. Though not spelled out by Edwards, that is undoubtedly the point of distinction – Sevelin was being held under a bond order; the order under which Edwards had been held was stayed.

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