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Sentence Credit, Previously Imposed Sentence, § 973.04; Double Jeopardy

State v. Charles Lamar, 2011 WI 50, affirming 2009 WI App 133; for Lamar: Donna L. Hintze, SPD, Madison Appellate; case activity

Sentence Credit, Previously Imposed Sentence, § 973.04

Two concurrent sentences were initially imposed following guilty pleas to aggravated battery and misdemeanor bail jumping, both as repeater. The Agg Batt plea was withdrawn on postconviction motion, but the bail jumping wasn’t challenged. Lamar was then re-convicted on the Agg Batt, but now the sentence was ordered to run consecutively to the bail jumping sentence (which, intact all along, had remained running). He was denied credit for time spent in prison on the Agg Batt, on the theory that it would represent “dual credit” because of its now-consecutive nature. Lamar argues that he is entitled to that credit under § 973.04, which states: “When a sentence is vacated and a new sentence is imposed upon the defendant for the same crime, the department shall credit the defendant with confinement previously served.” The court rejects the argument:

¶41  The facts of this case are unusual, and consequently our holding is narrow.  We hold that an offender is not entitled to additional sentence credit pursuant to Wis. Stat. § 973.04 when (1) the vacated sentence was originally imposed concurrent to a separate sentence, (2) the separate sentence is not vacated, (3) the vacated sentence is reimposed consecutively to the non-vacated sentence, and (4) the time that the defendant requested was served in satisfaction of the sentence that was not vacated.

The dissent identifies the heart of the unsolved riddle, and puts it exceedingly well:

¶62  In effect, the majority is saying to Lamar:  You know those 189 days that you (and everyone else) thought you were serving in prison for that aggravated battery as well as misdemeanor bail jumping?  Well, they didn’t happen.  We’re not going to count them for aggravated battery.  We’ll just start your punishment for that conduct over again from the beginning.

¶63  Yet during the 189 days at issue, both Lamar and the Department of Corrections viewed Lamar as serving time for aggravated battery as well as misdemeanor bail jumping.  The majority opinion has retroactively changed what those 189 days represent.  Under the majority’s interpretation, the 189 days in custody are not “confinement previously served” for Count 1, falling under Wis. Stat. § 973.04; the majority has instead morphed these 189 days into custody “awaiting sentence” on Count 1.

Place under category tag, “Jurisprudential Physics.” Time (literally and metaphorically) is subject to after-the-fact manipulation. No matter. The court has spoken and if you’re contemplating partial relief against multiple counts, you will have to provide your client with an assessment of the risk that he may lose credit for time spent in custody. And, despite the court’s somewhat cryptic observation, the facts don’t appear to be terribly unusual, nor the holding narrow. If your client is serving multiple concurrent sentences, any challenge would appear to run a risk of lost credit.

The court corrects the court of appeals in one respect. The latter court held that § 973.04 applies only where the “defendant is serving one sentence and that particular sentence is vacated,” 2009 WI App 133, ¶9. That construction is erroneous:

¶34  The State argues (and Lamar obviously agrees) that the court of appeals interpreted the scope of Wis. Stat. § 973.04 too narrowly.  We agree.  Neither the plain language of § 973.04 nor precedent supports the conclusion that the statute is meant to apply only to cases involving one sentence.

¶35  Instead, we conclude that Wis. Stat. §§ 973.04 and 973.155 are both applicable to the instant case.  The operative language of § 973.04——that the defendant shall be credited “with confinement previously served”——must be interpreted in light of the nature of the particular sentences imposed.  A court has the authority to “provide that any such sentence be concurrent with or consecutive to any other sentence imposed at the same time or previously.”  Wis. Stat. § 973.15(2).

A mixed blessing, to be sure, given that under § 973.155, “dual credit” against consecutive sentences is barred, State v. Boettcher, 144 Wis. 2d 86, 423 N.W.2d 533 (1988). The importation of § 973.155 – which expressly relates to the pre-sentencing context – into this post-sentence setting rests on mere question-begging. The long and short of it: Lamar’s new Agg Batt sentence was made consecutive to the earlier sentence, so he’s not entitled to credit for time he spent serving it.

¶37  In the instant case, the time for which Lamar seeks sentence credit was served on a separate, non-concurrent sentence.  If Lamar received the sentence credit he seeks, he would receive dual credit from two consecutive sentences for the period from September 15, 2006, through March 23, 2007.  As this court held in Boettcher, defendants are not entitled to dual credit on a consecutive sentence.[9] See Boettcher, 144 Wis. 2d at 87 (“Credit is to be given on a day-for-day basis, which is not to be duplicatively credited to more than one of the sentences imposed to run consecutively.”).  Accordingly, we conclude that Lamar received all of the sentence credit to which he is entitled.

Double Jeopardy

Failure to fully credit Lamar with time originally spent in custody on the re-sentenced count, occasioned by change in the sentence structure from concurrent to consecutive, didn’t violate double jeopardy.

¶47  We are not persuaded by Lamar’s argument.  On January 3, 2008, the circuit court ordered that Lamar’s Amended Count I sentence for aggravated battery be served consecutively to any other sentence.  From September 15, 2006, to March 23, 2007——the time period for which Lamar is seeking additional sentence credit——Lamar was serving his Count I sentence and his Count II sentence for misdemeanor bail jumping as a habitual offender concurrently.  Because the circuit court, during Lamar’s second sentencing, ordered him to serve his sentences for Amended Count I, aggravated battery, and Amended Count III, misdemeanor bail jumping, consecutively to any other sentence, it would go against the order of the circuit court to credit Lamar with time he served before March 23, 2007 (the date Lamar completed his initial incarceration portion of his Count II sentence for misdemeanor bail jumping as a habitual offender).

¶48  This does not violate Lamar’s constitutional protection against double jeopardy.  In State v. Amos, 153 Wis. 2d 257, 450 N.W.2d 503 (Ct. App. 1989), the court of appeals faced a double jeopardy claim based on the trial court’s revocation of its original award of 726 days of sentence credit.  The court of appeals held that the elimination of sentence credit to which an offender is not statutorily entitled does not violate double jeopardy.  153 Wis. 2d at 281-82.  The Amos court concluded that, “[I]n this case, the sentence was modified to eliminate . . . credit that [the defendant] was not entitled to.”  Id. at 282.  Accordingly, double jeopardy was not implicated.  Id.

Amos, at least on its facts, appears to have little if anything to do with this problem. Amos received a windfall (credit against both of his consecutive sentences), and when the trial court found out this mistake had been made, it eliminated the credit. There was no double jeopardy violation, notwithstanding that credit was eliminated after Amos had begun serving his sentence: “But in this case, the sentence was modified to eliminate presentence incarceration credit that he was not entitled to and the same sentence existed before the modification as after. Thus, double jeopardy was not implicated.” 153 Wis. 2d at 282. That’s different, isn’t it, from whether the defendant is entitled to post-sentence credit for time he spent in prison on a perfectly valid sentence? Double jeopardy typically asks whether the defendant had a legitimate expectation of finality in the sentence.  State v. Gruetzmacher, 2004 WI 55, ¶¶ 33-34, 271 Wis. 2d 585, 679 N.W.2d 533; State v. Willett, 2000 WI App 212, ¶ 6, 238 Wis. 2d 621, 618 N.W.2d 881. Although the court didn’t put it this way, Amos couldn’t possibly have had a legitimate expectation of finality in his sentence credit, because under settled caselaw it was clearly illicit. Lamar’s situation was quite a bit different. By his postconviction motion, he may have waived any expectation of finality with respect to whether his sentences would remain concurrent, but it’s quite a stretch to say that he thereby waived his right to credit for time he had already served – especially when considering that § 973.04 seems to guarantee such credit. Going forward, defendants are now on notice of the risk. But Lamar? The majority’s analysis – no more than reference to the inapposite Amos, really – is as suspect as its result; not a coincidence, perhaps.

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