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Judge—not clerk—makes sentence credit determination

State v. Tahj E. Kitt, 2015 WI App 9; case activity

“When a convicted offender has put sentence credit at issue, the court—not the clerk—must make and explain the decision on how much sentence credit is to be awarded.” (¶2).

After Kitt filed a postconviction motion seeking additional sentence credit over the 75 days he’d already been granted, the judge said he would “have the clerk take a look at it on the sentence in this case. If he’s entitled to credit because of incarceration presentence on this matter he gets it.” The clerk apparently decided Kitt had only 75 days of sentence credit coming, for the court, without explanation, denied Kitt’s motion. (¶1).

Awarding sentence credit is a judicial function that requires a court to make explicit findings related to the award or denial of sentence credit, see § 973.155(2) (“the court shall make and enter a specific finding of the number of days for which sentence credit is to be granted,..); Klimas v. State, 75 Wis. 2d 244, 251-53, 249 N.W.2d 285 (1977). (¶3). “While a circuit court may seek assistance from its court clerk in accessing records that may be relevant to its determination, the award of sentence credit is the court’s duty and the court must reach its own conclusion on the amount of sentence credit to be awarded and explain its findings and reasoning on the record.” (¶6).

Kitt sufficiently raised a credit issue by providing a jail booking sheet, conceding that not all of the 265 days of custody shown were connected to this case, and asking for credit for the custody connected to this case. (¶¶1, 5). From there “[i]t was the court’s responsibility, not Kitt’s nor the clerk’s, to determine how many of the 265 days that Kitt spent in custody were for sentences or civil commitments not ‘in connection with the course of conduct for which sentence was imposed’ and to deduct that amount from the 265-day total.” (¶5). Because the record does not support the court’s award of 75 days and the court of appeals can’t independently determine the exact amount of credit that Kitt is due, the case is remanded for an on-the-record examination and explanation of sentence credit due to Kitt. (¶6).

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