Innocence Claims — imprisonment

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Wisconsin Court of Appeals

Criminal

Innocence Claims — imprisonment

Jail time constitutes imprisonment under sec. 775.05, which allows innocent persons to recover from the state claims board.

“Although the Claims Board found that Turnpaugh ‘was sentenced to 60 days in [the] Milwaukee County Jail for the prostitution charge [the alleged violation of WIS. STAT. § 944.30(1)] and ultimately served three days in custody and 57 days on electronic monitoring[,]’ it determined that this did not satisfy the ‘imprisonment’ requirement of WIS. STAT. § 775.05(1) & (3). Its ‘explanation,’ however, was as terse and devoid of reasoning as was its determination that Turnpaugh had not shown by clear and convincing evidence that he was innocent of the crimes for which he was convicted: ‘The Board further concludes that the claimant has failed to show that he was imprisoned, under the meaning of s. 775.05, Wis. Stats., as a result of this conviction.’ Even giving the Claims Board the highest level of deference, this conclusion flies in the face of the statute, which, significantly, describes the potential punishment for violating WIS. STAT. § 944.30(1), a Class A misdemeanor, as ‘imprisonment not to exceed 9 months[.]’ See WIS. STAT. § 939.51(3)(a). (Emphasis added.) See also WIS. STAT. §§ 973.02 & 973.03 (recognizing that incarceration in a ‘jail’ is ‘imprisonment’).”

Reversed.

Recommended for publication in the official reports.

2011AP2365 Turnpaugh v. State of Wisconsin Claims Board

Dist. I, Milwaukee County, Pocan, J., Fine, J.

Attorneys: For Appellant: Baird, Michael A., Milwaukee; For Respondent: Murphy, Anne Christenson, Madison