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Sentence Credit – “course of conduct” – concurrent sentences imposed at different times

State v. Daniel C. Tuescher, 226 Wis.2d 465, 595 N.W.2d 443 (Ct. App. 1999)
For Tuescher: David D. Cook

Issue/Holding: Tusecher’s conviction on one count, out of several counts with concurrent sentences, was vacated for new trial. He continued to serve the remaining sentences, and was ultimately convicted and sentenced on a lesser offense on the vacated count. The court holds that Tuescher is not entitled to sentence credit on the resentenced count for time served between vacating and resentencing. In more general terms, “a defendant earns credit toward a future sentence while serving another sentence only when both sentences are imposed for the same specific acts.” Though Tusecher himself ends up with less time overall than before, the court acknowledges the danger that under similar circumstances “a defendant could actually be worse off for having one of several convictions reversed.” The court leaves open the possibility of a challenge to an unfair result: “Tuescher has not raised the question of whether the present result is so unfair as to violate his constitutional right to due process, or possibly to equal protection of the laws, and we therefore do not consider any constitutional dimensions of the present dispute.”

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