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Sentence Credit – Time Spent in Custody after Extended Supervision Revocation but before Reconfinement Hearing

State v. Lee Terrence Presley, 2006 WI App 82
For Presley: Richard D. Martin, SPD, Milwaukee Appellate

Issue/Holding:   Sentence credit is required for for days spent in jail between dates of revocation of extended supervision in an earlier case and sentencing on both the revoked supervision and a new case.

¶10      Presley submits that Beets requires sentence credit until the day he was sentenced for the extended supervision revocation—the same day he was sentenced on the new charge—because like the offender in Beets, whose probation was revoked, he did not begin serving a sentence for the earlier crimes until the trial court sentenced him. The State insists that because of the passage of the truth-in-sentencing act, applying the Beets holding entitles Presley to credit on the new charge only for the time between the date of his arrest and the date of his extended supervision revocation because, once the extended supervision was revoked, he was serving a sentence, although its exact length was unknown.  More precisely, the State argues in its brief:  “In this case, Presley was sentenced in 2002, and served his term of initial confinement. He was serving his extended supervision, when he was arrested. When his extended supervision was subsequently revoked, Presley had been revoked and sentenced.” The State attempts to circumvent the Beets holding by claiming that the reconfinement hearing was not a sentencing.  However, whether a reconfinement hearing constitutes a “sentencing” was resolved in State v. Swiams, 2004 WI App 217, 277 Wis. 2d 400, 690 N.W.2d 452. While Swiams addressed a different issue not touching on sentence credit, the case established that a reconfinement hearing is a form of sentencing. … Thus, a reconfinement hearing is a “sentencing,” and underBeets, it, not the revocation, severs the connection between the charges.

¶13      … Thus, an offender who has had his or her extended supervision revoked is entitled to sentence credit on any new charges until the trial court “resentences” him or her from the available remaining term of extended supervision.

Of course, credit on both the ES and the new sentence is contingent on their being concurrent, as the court stresses, ¶15, citing  State v. Tuescher, 226 Wis. 2d 465, 469, 595 N.W.2d  443 (Ct. App. 1999). Note, too, Judge Fine’s concurrence, which expresses concern about “read(ing) more into State v. Swiams, 2004 WI App 217,  277 Wis. 2d 400, 690 N.W.2d 452, than is there.” He would apparently limit Swiams to its facts, namely that a reconfinement hearing is a “sentencing” for purposes of triggering Rule 809.30 postconviction review procedure,  ¶¶16-17. Rights at sentencing are relatively limited anyway – rules of evidence, for example, don’t apply – so it’s not clear just how far Judge Fine would lower the bar. However, his concurrence highlights the idea that reconfinement procedure isn’t yet settled.

 

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