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Defense win: Defendant gets credit for time in custody on federal hold for Wisconsin criminal case conduct

State v. Avery B. Thomas, Jr., 2021 WI App 59; case activity (including briefs)

Thomas was arrested for and charged with criminal conduct while he was on federal supervision. He was held on cash bail till after his plea, when his bail was modified to a signature bond. He remained in custody, though, because the feds had put a revocation hold on him. He was eventually sentenced after revocation on the federal case, and about a month after that he was sentenced in the Wisconsin case. (¶¶2-4). The Wisconsin court erred in denying Thomas credit for the 48 days he was in custody between the date his bail was modified and the date of his federal sentencing.

Even though Thomas was on a signature bond in the Wisconsin case, he remained in custody in connection with the Wisconsin criminal conduct for which he was sentenced because the federal supervision hold was based on that conduct. And no one disputes that. (¶8). So under State v. Hintz, 2007 WI App 113, 300 Wis. 2d 583, 731 N.W.2d 646, he clearly gets the credit, right?

No, the state claims, because § 973.155(1)(b) doesn’t expressly authorize credit for a federal hold even if the hold was for conduct in connection with the state sentence. Relying on Hintz and the plain statutory language, the court of appeals makes short work of the state’s specious claim:

¶11     The State argues that Hintz is distinguishable, as Wis. Stat. § 973.155(1)(b) “does not authorize credit for custody that is the result of all probation, supervision, and parole holds issued by any jurisdiction,” only “holds issued pursuant to Wisconsin law.” According to the State, “Hintz did not address whether credit is available for custody on a hold not among those listed in” § 973.155(1)(b).

¶12     The State’s reliance on Wis. Stat. § 973.155(1)(b) is misplaced. First, the State’s position ignores the fact that paragraph (b) of § 973.155(1) does not specifically exclude federal holds from sentence credit; it simply explains that sentence credit is available for state probation, extended supervision, and parole holds. And second, paragraph (a) remains applicable under the circumstances. Section 973.155(1)(a) provides that “[a] convicted offender shall be given credit toward the service of his or her sentence for all days spent in custody in connection with the course of conduct for which sentence was imposed.” (Emphasis added.) The statute further provides that “‘actual days spent in custody’ includes, without limitation by enumeration, confinement related to an offense for which the offender is ultimately sentenced, or for any other sentence arising out of the same course of conduct” which occurs while the defendant is awaiting trial, being tried, or awaiting imposition of sentence after trial. Sec. 973.155(1)(a) (emphasis added). This general provision makes clear that the enumeration of “actual days spent in custody” under § 973.155(1)(a) is not limited to those examples in § 973.155(1)(b). As our supreme court explained, “[t]he clear intent of [§] 973.155, is to grant credit for each day in custody regardless of the basis for the confinement as long as it is connected to the offense for which sentence is imposed.” [State v.] Gilbert, 115 Wis. 2d [371,] 380[, 340 N.W.2d 511 (1983)] (emphasis added).

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