Slater had a prison sentence imposed and then stayed in favor of probation. While on probation, he was arrested on three new charges. The department of corrections revoked his probation pretty quickly, but he didn’t get sent to prison: instead, he remained in the county jail for over three years while those new charges were pending. After a jury convicted him on on the new charges, he got three new concurrent prison sentences. The court of appeals now holds that Slater should be credited on those new sentences for the years he spent in jail awaiting trial.
The most basic reason is Wis. Stat. § 973.10(2)(b). That statute provides that for a revoked probationer with an imposed-and-stayed sentence, “the term of the sentence shall begin on the date the probationer enters the prison” (with Wis. Stat. § 973.155 providing credit against that sentence for any time served in the jail). So, during the time Slater was in the county jail, he was not serving his prison sentence, and was thus not barred from getting credit against the new sentence under State v. Beets, 124 Wis. 2d 372, 369 N.W.2d 382 (1985).
The court of appeals’ holding on this point is in line with its prior holdings in State v. Davis, 2017 WI App 55, 377 Wis. 2d 678, 901 N.W.2d 488, and State v. Presley, 2006 WI App 82, 292 Wis. 2d 734, 715 N.W.2d 713. The prior two cases involved people revoked from extended supervision, and were thus governed by Wis. Stat. § 304.072(4). But the language of that statute is functionally identical to that of § 973.10(2)(b), so the court says the same rule applies to probation revocations.
The court also rejects two other arguments offered by the state. The state claims that the trial court, when sentencing Mr. Slater on the new charges, intended its sentences on those to be consecutive to the one that had already been imposed and stayed. That argument falls to the nearly hundred-year-old rule of Application of McDonald, 178 Wis. 167, 171, 189 N.W. 1029 (1922): that a court’s silence on consecutive-versus-concurrent means that a sentence is concurrent.
The state also argues that Slater is foreclosed from asking for the credit at issue because his counsel, at the time of sentencing, agreed that he was entitled to less. This, the state says, makes it a case of invited error. The court of appeals notes that the invited error doctrine applies where a party’s shifting positions are “deliberate choice of strategy” and that here, there’s “no evidence that trial counsel’s agreement with the prosecutor’s representations was the result of anything other than a mistake.” (¶42). What’s more, State v. Kontny, 2020 WI App 30, 392 Wis. 2d 311, 943 N.W.2d 923, holds that a defendant’s prior agreement to an incorrect amount of credit does not bar a request for the proper amount. (¶¶43-45).