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SCOW to decide whether one mistakenly released from jail gets credit

State v. Zachary S. Friedlander, 2017AP1337, petition granted 7/10/2018; review of an unpublished court of appeals decision; case activity (including briefs)

Issue (from petition for review):

When, as here, an offender is mistakenly released from prison or jail, is the offender “in custody” under § 973.155(1) and Magnuson such that sentence credit should be granted for this time spent at liberty?

Friedlander was mistakenly released from prison when he should have been remanded to the jail to serve some condition time. The court of appeals held he was due credit for the time he was on the street; the supreme court will now review that decision.

Though it raises other arguments, the point of the state’s petition here is to ask the supreme court to overrule two other court of appeals cases: State v. Riske, 152 Wis. 2d 260, 448 N.W.2d 260 (1989) and State v. Dentici, 2002 WI App 77, 251 Wis. 2d 436, 643 N.W.2d 180. In each of those cases, the defendant made himself available to serve his sentence but was turned away from the jail because of overcrowding. In each of those cases, the court of appeals held the defendant should get credit for the time he was “at liberty through no fault” of his own.

The state now argues that those cases conflict with State v. Magnuson, 2000 WI 19, 233 Wis. 2d 40, 606 N.W.2d 536. That case interpreted the command of the credit statute, § 973.155(1), that a person is entitled to credit for time spend in “custody.” Magnuson held that a person is in “custody” when leaving his or her status could result in a charge under the escape statute, § 946.42. The court of appeals, in Dentici, found that statute satisfied, because it includes within the definition of custody “temporary leave for the purpose of work, school, medical care, or otherwise.” (Emphasis added.) The state asserts that having enough beds for everyone in the jail is not a “purpose,” though it doesn’t say why.

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