State v. Shawn Virlee, 2003 WI App 4, PFR filed 1/3/03
For Virlee: Jack E. Schairer
Issue: Whether post-petition grant of jail credit deprived the court of competency to proceed, where the petition was filed within 90 days of the pre-grant release date, but would be untimely when calculated against the post-grant date.
¶17. Virlee claims the court lost its competency to proceed with his commitment proceeding when it retroactively granted him sentence credit that placed his mandatory release date prior to the petition’s filing date. We disagree. Under Wis. Stat. § 980.02(2)(ag), the State must file its petition within ninety days of release or discharge for it to be timely. By filing four days before Virlee’s scheduled release from prison, the State did just that. The court did not lose jurisdiction because it modified Virlee’s sentence after the petition was filed.¶18. Our conclusion is supported by State v. Carpenter, 197 Wis. 2d 252, 541 N.W.2d 105 (1995). … (T)he court noted the State’s petition was filed within ninety days of Carpenter’s actual discharge from prison. Id. Similarly, we conclude the trial court’s subsequent modification of Virlee’s sentence does not change the fact the State filed the petition within ninety days of his actual release from prison.