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Sentencing – Review – Factors – Jail Credit as Affecting Length of Sentence

State v. Eric S. Fenz, 2002 WI App 244
For Fenz: Jacob W. Gobel

Issue: Whether the sentencing court may take into account the amount of jail credit to be awarded, in the narrow instance where the court wants to assure a term of imprisonment sufficiently lengthy to allow exposure to a treatment program.


¶10. Fenz argues that Klimas and Struzik established a “bright line” rule for circuit courts to follow when applying credit for time served against a sentence. While we agree that Klimas and its progeny established a general rule for applying sentence credit, the circuit court’s decision here does not run afoul of that Klimas/Struzikrule. The circuit court determined that Fenz needed to receive institutional sexual offender treatment and that completion of that program required at least six years incarceration. In order to accomplish this very specific incarceration goal, it was necessary for the court to consider those factors that would influence the amount of time Fenz actually would spend in prison. This determination required consideration of the amount of presentence credit. Accordingly, we conclude that the circuit court properly deviated from the Klimas/Struzik rule because it articulated a specific time-related incarceration goal and that goal required the court to consider the presentence credit due Fenz.

¶12. In concluding that a court may, in specific circumstances, consider presentence credit as a factor in determining an appropriate sentence, we remain mindful of a defendant’s constitutional right to receive credit for time already served. Here, the record indicates that Fenz was credited 342 days for time served. Therefore, we affirm Fenz’s sentence and the court’s order partially denying sentence modification.

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