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Sentence Credit – SVP (Ch. 980) Custody

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 Michael J. Thorson v. Schwarz, 2004 WI 96, reconsideration denied, 2004 133affirming unpublished decision of court of appeals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

Issue/Holding: Time spent in detention during ch. 980 proceedings may not be credited toward service of the underlying criminal sentence. ¶¶29-38.

Thorson was serving a sentence for a 980-qualifying offense, and shortly before his release the State filed a commitment petition. He spent 170 days awaiting the SVP trial, at which he was acquitted; then he was released on parole which subsequently was revoked. He seeks credit against the revocation-sentence for time spent detained for the 980 proceeding. As indicated immediately above, the court rejects the claim. At first blush, it might seem that the opinion has very limited impact (how many individuals get the 980 petition dismissed, only to have supervision revoked? probably not too many), but on closer examination that isn’t at all the case. First, the court’s reasoning. Someone detained under a 980 petition isn’t in “custody” for credit purposes because he or she can’t be charged with escape. Agree or not with that conclusion, the implication is astonishing in this sense: if you try to abscond from 980 detention or commitment, the authorities can use lethal force to stop you, but if you manage to get away they can’t charge you with escape. See ¶26. The State can kill you even though you haven’t committed a crime. This absurdity should have given the court at least some pause. In any event, the court determined that a 980 subject isn’t in “custody,” ¶29; that should have concluded the matter, but the court goes on to also decide that a 980 subject isn’t held “in connection with the course of conduct” for which credit is sought, ¶¶30-38. This latter discussion would therefore seem to be dicta, though it’s unlikely to be treated that way. The court’s reasoning on this point is even more suspect than the custody discussion – it seems to be premised on the idea that “Thorson was not detained for the specific offense that caused his original conviction,” but, rather because a “separate civil” 980 petition was filed, ¶34. But of course the detention was for the specific offense, by definition (§ 980.02(2)(ag)), else there wouldn’t be a petition. The same logic could be applied to any revocation based on a rules violation – it too is a “separate civil” matter. Nonetheless, there you have it.

Another implication worth pondering … In denying 980-detention credit, the court in effect stops the clock on the underlying criminal sentence. It doesn’t matter whether you’re talking about pre-trial detention or post-trial commitment, the court is saying that nothing that happens under 980 can entitle you to credit on the criminal case. Now consider that a 980 petition must be filed before release or discharge on the criminal sentence. State v. Wilbert L. Thomas (II), 2000 WI App 162. This means that every 980 subject necessarily owes time on the sentence – because the sentence clock has stopped running. Someone held under a 980 commitment for, say, 10 years and then released will have to go back and serve the pre-petition days remaining on the sentence. What a potential mess.


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