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Consecutive Sentences — Authority to Stay Sentence Until Release or Discharge on Ch. 980 Commitment

State v. David Carneal White, 2000 WI App 147, 237 Wis.2d 699, 615 N.W.2d 667
For White: Jeffrey A. Kingsley

Issue: Whether a court has authority to stay a sentence until the defendant is released or discharged from an otherwise unrelated Ch. 980 commitment.

Holding: The purposes of § 971.17 NGI and Ch. 980 SVP commitments being similar (¶¶8-9), the reasoning of State v. Szulczewski, 216 Wis. 2d 495, 574 N.W.2d 660 (1998) applies, ¶11:

Accordingly, we conclude that a circuit court has authority to stay a sentence for “legal cause” during the period of a defendant’s commitment under WIS. STAT. ch. 980. We also conclude that a circuit court, in deciding whether to stay a sentence during the period of a ch. 980 commitment, must exercise discretion on a case-by-case basis in order to balance and give effect to the goals of both mental health treatment and incarceration. Just as the supreme court concluded, with respect to WIS. STAT. §§ 973.15(1), (8)(a) and 971.17, we conclude, with respect to § 973.15(1), (8)(a) and ch. 980, that a sentencing court must “make a reasoned determination about imposing or staying a prison sentence on the basis of the facts of each case.” Szulczewski, 216 Wis. 2d at 505.

The holding is self-explanatory. More interestingly, the court’s explicit linkage of 980 and 971.17 commitments illustrates the incremental tendency to “criminalize” the putatatively civil commitment procedure of Ch. 980. The holding in this case might not be problematic if 980 and 971.17 procedures were comparable; but they’re not: “insanity acquittees constitute a special class that should be treated differently from other candidates for treatment,” Jones v. United States, 463 U.S. 354, 370 (1983). Our supreme court has also recognized that insanity and civil commitment subjects aren’t really similar. E.g., State v. Gebarski, 90 Wis. 2d 754, 771-72, 280 N.W.2d 672 (1979); State v. Field, 118 Wis. 2d 269, 347 N.W.2d 365 (1984).


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