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Conditional time can exceed one year

Convictions are not entered "at the same time," even though the sentencings are consolidated, the Wisconsin Court of Appeals held on Aug. 16. As a result, a court can order conditional time in jail for more than one year, unless the findings of guilt were simultaneous.

On Sept. 26, 2003, Timothy J. Johnson entered a no contest plea to one count of failure to pay child support. On Nov. 10, 2003, Johnson pleaded guilty to two counts of delivery of cocaine.

What the court held

Case: State of Wisconsin v. Timothy J. Johnson, Nos. 2004AP2176-CR & 2004AP3031-CR.

Issue: Does the term "conviction," as used in sec. 973.09, refer to adjudication of guilt or sentencing and entry of judgment?

Holding: Adjudication of guilt. Interpreting "conviction" to occur at sentencing would encourage parties to manipulate court schedules to stack sentencing hearings.

Counsel: Jo C. Vandermause, Appleton, for appellant; Jeffrey J. Kassel, Madison; John P. Zakowski, Green Bay, for respondent.

On Jan. 24, 2004, he was sentenced for the three crimes.

Brown County Circuit Court Judge Mark A. Warpinski withheld sentence on the child support conviction, placing Johnson on probation for five years. As a condition of probation, Johnson was ordered to serve nine months in the county jail.

The court also withheld sentence on both drug counts, placing Johnson on probation for twelve years. As a condition of probation, Johnson was ordered to serve nine months in the county jail.

Although the court ordered that the terms of probation be concurrent, it ordered that the periods of conditional jail time be consecutive to each other, for a total of 18 months.

Johnson appealed the sentence, but the court of appeals affirmed in a decision by Judge Thomas Cane.

Section 973.09(4)(a) provides: "The court may also require as a condition of probation that the probationer be confined during such period of the term of probation as the court prescribes, but not to exceed one year."

The State conceded, and the court found that, if the convictions occurred at the same time, the one year limit on jail would apply.

The court reasoned, "The language of Wis. Stat. sec. 973.09, the general probation statute, supports Johnson’s contention that the phrase ‘term of probation’ refers to a single unit of time that may be extended to reflect multiple convictions. The statute provides that the original term of probation for misdemeanors shall be ‘not less than 6 months nor more than 2 years,’ Wis. Stat. sec. 973.09(2)(a)1., while the original term of probation for felonies is ‘not less than one year nor more than either the maximum term of confinement … or 3 years.’ Wis. Stat. sec. 973.09(2)(b)1. If the probationer is convicted of multiple misdemeanors at the same time, the maximum original term of probation may be increased by a year. Wis. Stat. sec. 973.09(2)(a)2. Similarly, if a probationer is convicted of two or more crimes, including at least one felony, at the same time, the maximum original term of probation may be increased by one year for each felony conviction. Wis. Stat. sec. 973.09(2)(b)2. If Johnson was convicted at the same time in his drug and child support cases, those crimes would, as the State apparently concedes, give rise to a single ‘term of probation,’ which in turn would mean that the one-year limit on conditional jail time applied to that term."

The court thus found the critical question to be whether Johnson’s "conviction" occurred at the time Johnson entered his guilty pleas, and was adjudicated guilty, or at the time of sentencing and entry of judgment.

The court found the word "conviction" ambiguous, because the Legislature has used the term in both ways in different statutes, and thus looked to legislative history.

Authority to impose jail time as a condition of probation began in 1965, was limited to one year, and the statute contained no reference to multiple convictions. In 1983, it was revised to increase the maximum term of probation when multiple convictions are entered at the same time.

The court found the history unhelpful, though, noting, "The legislative history thus indicates a clear intent to increase the length of the probationary period for convictions at the same time, but provides no insight into what the Legislature meant by conviction."

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Case Analysis

Turning to the interpretation of "conviction" in other statutes, it found the term has different meanings. In calculating the number of convictions for drunk driving, conviction does not occur until sentence is imposed. In termination of parental rights proceedings, "conviction" does not occur until after the right of appeal has been exhausted.

However, for purposes of impeachment testimony and the repeat offender statute, conviction occurs with adjudication of guilt.

Ultimately, the court relied on policy reasons, and held that conviction occurs at the time of adjudication of guilt, concluding, "We see no reason … to expand the number of convictions potentially encompassed by a single ‘term of probation’ by construing ‘convicted at the same time’ to mean sentenced at the same time. Such a reading could, among other things, encourage parties to manipulate court schedules for the purpose of stacking sentencing hearings. We also agree with the State that consistency supports reading sec. 973.09 as we have read other sentencing statutes, and interpreting conviction as referring to the adjudication of guilt. Because we conclude that Johnson was not convicted at the same time in the child support and drug cases, and therefore was not serving a single probationary term, the trial court had the statutory authority to order consecutive periods of conditional jail time."

Accordingly, the court affirmed.

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David Ziemer can be reached by email.

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