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Sentence Credit – Read-in

State v. Warrick D. Floyd, 2000 WI 14, 232 Wis. 2d 767, 606 N.W.2d 155, on certification
For Floyd: David D. Leeper

Issue: Whether a defendant is entitled to sentence credit under Wis. Stat. § 973.155(1) for time spent in custody on a charge that is dismissed and read-in at sentencing.

Holding: Pre-trial confinement on a charge dismissed and read in at sentencing is related to the sentenced offense and therefore qualifies for credit:

¶31  In limiting the statute’s scope, we recognize the important distinction between read-ins and other charges, including pending charges, acquittals or dismissals.  The unique nature of read-in charges and this state’s read-in procedure, viewed in the context of the legislative history and purpose of the sentence credit statute, lead us to conclude the legislature intended that Wis. Stat. § 973.155(1) provide sentence credit for these charges.  Applying the rule of lenity, we also construe this ambiguous statute strictly in favor of Floyd.  State v. Bohacheff, 114 Wis. 2d 402, 417, 338 N.W.2d 466 (1983); State v. Frey, 178 Wis. 2d 729, 745, 505 N.W.2d 786 (Ct. App. 1993).

¶32  In summary, we determine that pre-trial confinement on a dismissed charge that is read in at sentencing relates to “an offense for which the offender is ultimately sentenced.”   Pursuant to Wis. Stat. § 973.155(1), Floyd is entitled to sentence credit for the time spent in confinement from the date of his arrest on armed robbery to the date of sentencing. Accordingly, we reverse and remand to the circuit court with directions to recalculate Floyd’s sentence credit.

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