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Defendant not entitled to credit for custody in another case that was considered at sentencing

State v. David Aaron Piggue, Jr., 2016 WI App 13; case activity (including briefs)

Under State v. Floyd, 2000 WI 14, 232 Wis. 2d 767, ¶¶14-18, 25-27, 606 N.W.2d 155, a defendant is entitled to sentence credit for time in custody on charges that are dismissed and read-in for sentencing purposes. The court of appeals declines to extend Floyd to require credit for time the defendant was in custody on a charge for which he was acquitted, even though the acquitted conduct is used by a judge to fashion a sentence for a different crime.

Piggue was in jail awaiting trial on a sexual assault charge when he  attempted to persuade the victim not to testify against him. He was ultimately acquitted of the sexual assault, but was then charged and convicted of witness intimidation. When sentencing Piggue on the intimidation charge, the court considered the sexual assault allegations; in fact, the victim testified at the sentencing hearing about the assault as well as the impact of the intimidation. (¶¶2-6). Relying on Floyd, Piggue argues that because the court considered the sexual assault charge in sentencing him for the intimidation conviction, the court “ultimately sentenced” him for the sexual assault and he is therefore “equitably entitled” to credit on the intimidation sentence for the 84 days he spent in custody awaiting his sexual assault trial.

Floyd held that § 973.155(1)(a) was ambiguous in referring to “confinement related to an offense for which [the defendant] is ultimately sentenced,” but concluded that, in light of the statute’s equitable purpose, a defendant must be given sentence credit for custody on charges that are dismissed and read-in at sentencing. Floyd expressly limited its holding to read-ins, however, id., ¶30, and the court of appeals refuses to extend it further:

¶12     Piggue acknowledges that Floyd expressly limited the sentence credit statute’s reach to read-in offenses, but argues that we should nonetheless expand Floyd to include the acquittal in his case. First, Piggue points out that the Floyd court based its reasoning in part on the premise that a read-in constitutes an admission, but that has since been withdrawn in State v. Straszkowski, 2008 WI 65, ¶¶58, 91-95, 310 Wis. 2d 259, 750 N.W.2d 835. Second, Piggue claims that the circumstances of his case are unique, in that, among other things, he was in custody for the sexual assault charge when he intimidated the victim and that the sexual assault “was a central component” of the intimidation sentence.

¶13     We are not persuaded. Even though Straszkowski may have clarified that read-ins are not to be construed as admissions, the fact is that read-ins are still distinguishable from acquittals and non-read-in dismissals. See Floyd, 232 Wis. 2d 767, ¶¶26-27 (acquittals may be considered at sentencing; read-ins are considered at sentencing and thus carry more weight). Floyd therefore remains good law. See also Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997) (“The supreme court is the only state court with the power to overrule, modify or withdraw language from a previous supreme court case.”). Moreover, we do not think that Piggue’s circumstances are in any way unique. Offenders attempt to dissuade witnesses from testifying while awaiting trial with some regularity, and it is well-known that “[a] sentencing court may consider uncharged and unproven offenses and facts related to offenses for which the defendant has been acquitted.” See, e.g., State v. Leitner, 2002 WI 77, ¶45, 253 Wis. 2d 449, 646 N.W.2d 341 (footnote omitted). We therefore decline to expand Wis. Stat. § 973.155(1) beyond the limits set by Floyd. ….

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