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Enhancer – Timing of Prior Conviction – Tolling During “Intensive Sanctions”

State v. Steven L. Pfeil, 2007 WI App 241
For Pfeil: John P. Tedesco, SPD, Madison Appellate

Issue/Holding: Time spent in custody of the (now-lapsed) division of intensive sanctions tolls the limitation period for prior convictions, § 939.62(2):

¶2        …. We conclude that supervision under the intensive sanctions program constitutes “actual confinement” within the meaning of Wis. Stat. § 939.62(2). The intensive sanctions program operates as a correctional institution, is deemed a confinement classification, and is more restrictive than ordinary probation or parole supervision or extended supervision. Under it, Pfeil was a prisoner and became eligible for sentence credit. We therefore decline Pfeil’s request that we reverse the judgment and remand with instructions to commute the enhancer portion of his sentence. Instead, we affirm.

¶16      The DIS statutory scheme contemplates a flexible program of incrementally greater privileges. Nonetheless, it is deemed to be a state prison, it is run as a correctional institution, and it considers participants such as Pfeil to be prisoners subject to an escape charge in the event they fail to comply with an imposed condition.  …

DIS terminated as of 12/31/99; see ¶3 n. 2. Therefore, the impact of this case should be pretty limited. The larger principle might be the idea that “actual confinement,” for tolling purposes, hinges on whether the defendant was entitled to sentence credit and subject to escape charge for leaving that confinement, ¶12.


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