Sentence Modification

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WI Court of Appeals – District I

Case Name: State of Wisconsin v. Demario D. Fleming

Case No.: 2017AP1851-CR

Officials: Kessler, P.J., Brennan and Dugan, JJ.

Focus: Sentence Modification

Demario D. Fleming appeals a judgment of conviction and the order denying in part and granting in part his postconviction motion for sentence modification. Fleming seeks modification of two separate parts of his sentence: pretrial detention credit and a condition of his extended supervision. First, regarding credit, he seeks pretrial incarceration credit against his intimidation of a witness sentence for time he spent in custody on four counts of armed robbery. The armed robbery counts were dismissed outright, without prejudice, and not as read-ins, at the time of his sentencing on the intimidation charges. He argues that he is entitled to the credit under WIS. STAT. § 973.155(1) (2015-16), State v. Floyd, 2000 WI 14, ¶27, 232 Wis. 2d 767, 606 N.W.2d 155, and State v. Straszkowski, 2008 WI 65, ¶5, 310 Wis. 2d 259, 750 N.W.2d 835. Second, he seeks a removal of the condition of no contact with M.H., the mother of his child.

The State opposes Fleming’s credit request on the grounds that WIS. STAT. § 973.155(1) and well-established case law in Wisconsin prohibits the credit. As to the no-contact condition, the State argues that it is a proper condition of supervision under State v. Stewart, 2006 WI App 67, ¶11, 291 Wis. 2d 480, 713 N.W.2d 165, and the trial court properly exercised its discretion in imposing it. Thus, the State argues the postconviction court’s order should be affirmed. We agree with the State and affirm.

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