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Escape, § 946.42 — “Actual Custody”

State v. Deborah J. Zimmerman, 2001 WI App 238
For Zimmerman: Charles B. Vetzner, SPD, Madison Appellate

Issue: Whether someone in the custody of a probation or parole agent “is in actual custody” for purposes of the escape statute, § 946.42.


¶5. To be guilty of escape, Zimmerman must be found to be in custody. Wis JI-Criminal 1773. The relevant language of the escape statute defines custody to include “without limitation actual custody of an institution … or of a peace officer or institution guard and constructive custody of prisoners … temporarily outside the institution ….” Wis. Stat. § 946.42(1)(a). The statute also contains an exception: “It does not include the custody of a probationer [or] parolee … unless the person is in actual custody or is subject to a confinement order under s. 973.09(4).” Sec. 946.42(1)(a)….¶14. We conclude that the escape statute unambiguously excludes from the definition of “actual custody” the physical custody of probation and parole officers. Therefore, because Zimmerman was in the hands of probation or parole agents at the time she fled, she is not chargeable with felony escape.


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