The court gives several good reasons for its holding, but makes no mention of the strongest reason the plain language of sec. 973.155(1)(b): The categories in par. (a) [for which a prisoner is entitled to credit] include custody of the convicted offender which is in whole or in part the result of a probation, extended supervision or parole hold under s. 302.113 (8m), 302.114 (8m), 304.06 (3), or 973.10 (2) placed upon the person for the same course of conduct as that resulting in the new conviction.
In short, an extended supervision hold remains in effect until the reconfinement hearing. Therefore, credit must be given until that date when the hold ceases, and the defendant becomes a state prisoner again.
The court in State v. Beets, 124 Wis.2d 372, 369 N.W.2d 382, 386 (1985), relied explicitly on subsec. (1)(b), noting, this portion of the statute was in fact given effect, for during the period of the probation hold prior to revocation and sentence, the credit was given on both the drug sentences and the [new] burglary sentence.
After sentencing on the [old] drug charges, there was no probation hold, and that portion of the statute is, accordingly, inapplicable.
Counsel also needs to be aware of the following footnote by the court in the case at bar: We note that in the briefs filed in State v. Odom, 2005AP1840-CR, the State takes a different approach and concedes that Odom is entitled to sentence credit in an almost identical fact situation. Odom had his extended supervision in an earlier case revoked after a new charge was filed. In Odom, the State argues that when an offender is sentenced on the same day to concurrent sentences (as occurred here), he is entitled to dual credit, citing State v. Howard, 2001 WI App 137, 246 Wis. 2d 475, 630 N.W.2d 244, State v. Ward, 153 Wis. 2d 743, 452 N.W.2d 158 (Ct. App. 1989), and Wis JICriminal SM 34-A.
Actually, however, Odom may not involve an identical fact situation, even though the two sentencings occurred at the same time.
In the case at bar, the decision is silent on the following fact: whether Presley was in custody both on an extended supervision hold on the old case and bail on the new case.
In Odom, on the other hand, the trial court released him on a signature bond on the new case two days after his arrest. He was not actually released from custody, however, because of the extended supervision hold. The State, in its brief, thus notes, Had Odom been sentenced consecutive sentences, or been sentenced on the two offenses on different occasions, he would have been entitled to two days credit on the [new] burglary charge and 102 days credit on the revocation.
As noted, however, the State in Odom conceded that Odom is entitled to 102 days credit on both cases, because he was sentenced on the same day.
The facts in Odom are thus unusual. When a client is on extended supervision and picks up a new charge, the defense attorney should take efforts to ensure that cash bail is imposed on the new charge, so that the above-described scenario cannot occur. Under no circumstances should a signature bond be requested.
The only time a defense attorney should file a bail motion, when a hold is also in effect, is if the jail has a policy precluding detainees from performing certain work in the jail, if their bail exceeds a certain amount. Even then, the attorney should only ask that cash bail be lowered to X amount, explaining to the court the reason for the request, that the hold is in effect, and that the defendant cant bail out anyway.
Neither party in Odom requested that the decision be published. It would be beneficial if it were, however, in order to make clear that the decision in the case at bar applies, regardless of whether the time the defendant spends in custody is spent both under bail and an extended supervision hold, or just a hold.
Arguably, a defendant in Odoms position should not get credit for both. The whole basis for sentence credit is the Equal Protection Clause. If poor defendants did not get credit for time spent in custody before sentencing, they would serve more time than defendants who have the means to pay bail, Beets, 369 N.W.2d at 385.
If the court releases a defendant on a signature bond, this consideration is not present. Thus, it would be helpful, if the court were to issue a published decision in Odom for those cases in which the defense attorney fails to ensure that a client on a hold is also held on cash bail.
Regardless of whether it is published or not, however, defense attorneys should at least be aware of the result when the decision is ultimately issued. The court of appeals clearly is aware of the inconsistency in the States positions on this issue.
– David Ziemer
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David Ziemer can be reached by email.