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Generally, § 973.155 — “Custody” and “Escape”

State ex rel. Michael J. Thorson v. Schwarz, 2004 WI 96, reconsideration denied, 2004 WI 133affirming unpublished decision of court of appeals
For Thorson: Jefren E. Olsen, SPD, Madison Appellate


¶16. The term “custody” is not defined in Wis. Stat. § 973.155. To fill this void, Wisconsin courts have relied upon the definition set forth in Wis. Stat. § 946.42(1)(a), the escape statute….

¶18. Although the above definition is the necessary starting point for determining “custody” for sentence credit purposes, it is by no means the only consideration. This court has made clear that offenders must also be subject to an escape charge in order to be in “custody” for purposes of sentence credit. Magnuson, 233 Wis. 2d 40, ¶¶1, 25, 31, 47.

This conclusion more or less begs the question. As the dissent indicates, credit-triggering custody should attach whenever the individual satisfies the § 946.42(1)(a) requirement of “actual custody,” either “of an institution” or of some “confinement order” (and Thorson indisputably satisfied that requirement), with a Magnuson-type analysis only when that the person isn’t in that sort of custody. See ¶54. But that is not a distinction recognized by the majority, and so in all instances, liability for escape will have to be shown in order to meet the credit definition of “custody.”


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