State v. Daryl J. Teska, 2011AP1010-CR, District 2, 3/14/12
court of appeals decision (1-judge, not for publication); for Teska: John E. German; case activity
Teska was originally placed on probation, sentences withheld, on 3 counts; jail time as a condition of probation was ordered as to 1 count. Probation was later revoked and although all 3 of sentences were imposed concurrently, credit for the time spent in jail as a condition of probation was allocated only to that particular count. The court of appeals now rejects Teska’s argument that credit should have been awarded on the other 2 counts as well. Credit for time spent in custody must be factually connected to the course of conduct for which sentence is imposed; even though the counts involved similar conduct (leaving a voice mail, as compared with a text, message on the same date), credit requires that the conduct involve “the same specific acts,” State v. Tuescher, 226 Wis. 2d 465, 475, 595 N.W.2d 443 (Ct. App. 1999).
¶8 For custody credit to be granted, the days spent in custody must be factually, not just procedurally, connected to the course of conduct for which sentence was imposed. See State v. Johnson, 2009 WI 57, ¶33, 318 Wis. 2d 21, 767 N.W.2d 207. In this case, the six months of jail time Judge Kennedy ordered Teska to serve as a condition of probation was factually related only to the underlying course of conduct in count one of No. 2009CM340, sending a text message to the victim on June 29, 2009, in violation of the domestic abuse injunction in place at the time. Thus, the 83 days Teska served on that count alone, from the date he began serving the condition time, March 1, 2010, through the date the probation hold was put in place on all three counts, May 23, 2010, were only “in connection with” Teska sending that text message.
With all due respect, this decision makes no sense. The defendant is only entitled to sentence credit for time “spent in custody in connection with the course of conduct for which sentence was imposed.” s.973.155. It appears from the decision that each of the counts for which the defendant was placed on probation was factually part of the same course of conduct.
More importantly, however, I do not believe that Judge Kennedy had the authority to limit a jail condition to one of three concurrent probation terms. Under Wisconsin law, terms of probation must be concurrent. E.g. State v. Pierce, 117 Wis.2d 83, 342 N.W.2d 776 (Ct. App. 1983). The imposition of conditions (other than length) applicable only to one term of concurrent probation would seem to conflict with this requirement.
Finally, as a practical matter, the condition time was a condition of all three probationary terms even though specifically assigned only to one. If the defendant violated the terms of that one probationary term by failing to appear to serve the condition time, that failure would, as a practical matter, violate the terms of the other two probationary terms as well.