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Consecutive Sentences – Sentence Consecutive to Future Revocation

State v. James E. Cole, 2000 WI App 52, 233 Wis. 2d 577, 608 N.W.2d 432

Issue: Whether a sentence can be ordered to run “consecutive to revocation” when the defendant’s parole has not yet been revoked.

Holding: A court has authority, under Wis. Stat. § 973.15(2)(a), to make the current sentence consecutive to a revocation of parole, even though the revocation has not yet occurred. (To account for the possibility that the defendant won’t be revoked, trial courts are “urge(d) [to] direct that in the event that the parole or probation is not revoked, the instant sentence should commence forthwith,” ¶11 n. 2.)

Same result as to probation revocation: State v. David Thompson, 208 Wis. 2d 253, 559 N.W.2d 917 (Ct. App. 1997), and essentially followed in this case.On a different point: if your client faces federal sentencing while state charges are pending, be aware that “the circuits are split as to whether a federal court has the authority to order that the sentence it is imposing run concurrently with a state sentence that has not yet been imposed,” Abdul-Malik v. Hawk-Sawyer, 403 F. 3d 72 (2nd Cir. No. 04-3877-pr, 4/5/05), and cites. To make matters worse, a state court’s specification that its term run concurrent with a federal one isn’t binding on federal authorities. “Thus in some circuits, when a defendant is sentenced first in federal court and then on an unrelated offense in state court, neither judge can effect concurrent sentencing even if that is the intention of both.” Id.


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