Sentence Credit – Credit for Conditional Jail Time (Condition of Probation) Served While “Overlapping” with Concurrent Unrelated Prison Sentence

State v. Martin V. Yanick, Jr., 2007 WI App 30
Pro se

Issue/Holding:

¶1    … We conclude that, when a defendant has served conditional jail time and his or her probation is later revoked and the defendant commences serving an imposed and stayed sentence, the defendant is entitled to sentence credit for days spent in custody while in conditional jail time status, even if that custody is concurrent with service of an unrelated prison sentence.

All the rest is commentary. But here goes anyway. Yanick was given probation with 6-months condition time; while serving that time he received a concurrent prison sentence on an unrelated offense, so that his condition time “overlapped” with a prison sentence; he eventually got revoked on the probation and now seeks—successfully—credit on the revocation sentence for the overlapping condition time. It’s undisputed that you’re entitled to credit against a subsequent revocation sentence for time spent in jail as a condition of probation, State ex rel. Ludtke v. DOC, 215 Wis. 2d 1, 10-11, 572 N.W.2d 864 (Ct. App. 1997). The State resists that principle, arguing that once Yanick began serving the prison sentence he stopped serving the condition time, ¶8: conditional jail time isn’t a “sentence,” and it’s therefore not possible to serve condition time in prison. What the State says might well be true, according to the court of appeals, yet the State’s analysis simply doesn’t address whether conditional time may be served concurrent with prison time. (Interestingly, the court doesn’t quite demonstrate that it may be served in prison; instead, the court rejects the State’s analysis as non-persuasive and appears to simply take as given such authority, ¶¶8-14.) The court goes on to reject the State’s separate argument that credit is barred under State v. Ward, 153 Wis. 2d 743, 452 N.W.2d 158 (Ct. App. 1989): in effect, the court says, credit is allocated for concurrent sentences even if they’re unrelated and awarded at different times, ¶¶15-19. Finally, the court rejects the State’s claim that State v. Beets, 124 Wis. 2d 372, 369 N.W.2d 382 (1985) disallows credit:

¶22   To the extent the State is suggesting that Beets holds that service of a sentence on crime A always “severs” time in custody owing to crime B for purposes of awarding sentence credit on the sentence for crime B, we disagree. Beets addressed a particular type of status—time in custody serving a sentence and awaiting disposition on a separate crime. Beets does not address service of a sentence and concurrent service of custody time pursuant to a disposition, which is the sort of concurrent custody time at issue here.

Pay attention to ¶10, which more or less suggests that in situations such as Yanick’s the trial court consider exercising its § 973.09(1)(a) authority to modify a probation condition for “cause”; that is, had the trial court eliminated the condition time following Yanick’s sentence to prison he wouldn’t have a claim for credit, now would he?