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Sentencing Case Analysis

By: dmc-admin//August 24, 2005//

Sentencing Case Analysis

By: dmc-admin//August 24, 2005//

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The term "conviction" is clearly ambiguous, when used in Wisconsin statutes, as the court found, for it has been interpreted to mean different things in different cases.

It is not clear, however, that the policy reasons given by the court support the interpretation it adopted.

The court found that, if conviction occurred at the time of sentencing, rather than adjudication of guilt, parties could "manipulate court schedules for the purpose of stacking sentencing hearings."

The court’s interpretation, however, does not solve that problem (if it is a problem at all); parties can manipulate the dates of guilty pleas, just as easily as the dates of sentencing.

No matter what interpretation the court adopts, parties can, if they want to, limit or expand the maximum jail time the court can impose by creative scheduling of court dates.

The second reason the court gives for its holding is consistency with other interpretations, but as the court noted, there is no consistent definition for "conviction." So, this justification fails, as well.

The court did not even discuss the statute that best sheds light on the legislative intent, sec. 973.02. That section provides that sentences of more than a year are to be served in prison, those less than a year in the county jail, and those exactly one year in either.

In Evers v. Sullivan, 2000 WI App 144, 237 Wis.2d 759, 615 N.W.2d 680, 685, the court of appeals observed, "By so providing, the Legislature has allocated to the state the responsibility for incarcerating persons sentenced to serve more than one year, and to the counties the responsibility for incarcerating those with shorter sentences."

Admittedly, sec. 973.02, and Evers, are not directly on point. The statute deals only with sentences, not jail time imposed as a condition of probation. In addition, there are exceptions. If a court imposes consecutive sentences of nine months each for two misdemeanors, the defendant will serve a year-and-a-half in a county jail, not a prison.

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Conditional time can exceed one year

Nevertheless, it is evident from this statute, and from the fact that sec. 973.09 limits conditional jail time to one year, that, at least as a general proposition, the Legislature wants people who are serving more than a year in custody to do so in state prison, rather than a county jail.

It is reasonable to ascribe to the Legislature, an assumption that, when someone’s conduct warrants more than a year in custody (whether it be in the form of a formal "sentence" or jail time as a condition of probation), he should spend it in prison, rather than a county jail.

Because conditional time is only served in county jails, it is more reasonable to conclude that the Legislature intended not to have such conditional time exceed one year when sentencings are held at the same time.

Recognizing that that general intent on the legislature’s part, Johnson’s construction of sec. 973.09 is the more reasonable one, and the time of "conviction" refers to sentencing and entry of judgment, not adjudication of guilt.

– David Ziemer

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David Ziemer can be reached by email.

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