Consecutive Sentences — No Authority to Impose, Relative to Jail Time as Condition of Probation in Another Case — Remedy of Resentencing

State v. Daron E. Maron, 214 Wis. 2d 384, 571 N.W.2d 454 (Ct. App. 1997)
For Maron: Susan E. Alesia, SPD, Madison Appellate

Issue/Holding¹:

… We conclude that § 973.15(2), Stats., does not give the trial court authority to order that the sentence be served consecutive to jail time already being served as a condition of probation. …

…

Subsequent amendment to § 973.15, Stats., has changed that in one respect. In State v. Thompson, 208 Wis.2d 253, 559 N.W.2d 917 (Ct. App. 1997), we considered whether § 973.15(2) authorizes a court to impose a sentence consecutive to a previously imposed but stayed sentence where probation had not yet been revoked. We concluded that the plain language of § 973.15(2) permitted this ….

We conclude that § 973.15(2), Stats., does not permit a court to impose a sentence consecutive to a term of probation. We reach this result because we are persuaded that nothing in the language of § 973.15(1) or (2) or its legislative history indicates that “sentence” is intended to include the imposition of probation. For the same reasons, we conclude that § 973.15(2) does not permit a court to order a sentence to be served consecutive to jail time imposed as a condition of probation.

Issue/Holding²:

As a general rule, resentencing is the proper method to correct a sentence which is not in accord with the law. State v. Holloway, 202 Wis.2d 694, 700, 551 N.W.2d 841, 844 (Ct. App. 1996). Maron argues, however, that because he has completed serving the jail time that was a condition of probation in the first case, a remand for resentencing would permit the trial court to do what § 973.15(2), Stats., does not authorize—impose a sentence consecutive to the prior probation. … A sentencing proceeding is not a game, and when a trial court mistakenly imposes a criminal disposition that is not authorized by law, the result should not be a windfall to the defendant. State v. Upchurch, 101 Wis.2d 329, 336, 305 N.W.2d 57, 61 (1981). We conclude that a remand for resentencing is the proper method to correct the sentence.