State v. Paul L. Wolfe, 2001 WI App 66, 242 Wis. 2d 426, 625 N.W.2d 655
For Wolfe: Gary Seeling
Issue: “The basic question before us is whether a court, in a multiple count conviction where one sentence is imposed and another stayed, must apply sentence credit to the conviction of the first imposed sentence,” ¶1.
Holding:
¶1. … We hold that it must under the rule of State v. Boettcher, 144 Wis. 2d 86, 100, 423 N.W.2d 533 (1988), and State v. Rohl, 160 Wis. 2d 325, 330, 466 N.W.2d 208 (Ct. App. 1991).
…
¶7 Here, the trial court clearly expressed its intention to make Wolfe serve the maximum amount of time possible on his burglary sentence. To ensure this result, the trial court applied the 331 days of credit to which Wolfe was entitled to the imposed and stayed sentence. If Wolfe successfully completes his probation on the second count, the benefit of the credit will never have accrued to him. Since the possible effect of this action would be to nullify the 331 days of credit, we view this result as a ‘clear abuse of discretion’ under Struzik.
¶8 We further instruct that the Judicial Benchbook, and its citation to the Wilson case, should not be construed to allow allocation of sentence credit to the second imposed sentence. To the extent that Wilson suggests the trial court can choose which of two consecutive sentences will receive credit, we hold that Boettcher-at least sub silentio-overruled the language in Wilson which indicates that the trial court has a choice in the matter.
