Statutory Interpretation – Sentence Credit

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WI Supreme Court

Case Name: State of Wisconsin v. Zachary S. Friedlander

Case No.: 2019 WI 22

Focus: Statutory Interpretation – Sentence Credit

This is a review of an unpublished, per curiam decision of the court of appeals, State v. Zachary S. Friedlander, No. 2017AP1337-CR, unpublished slip op. (Wis. Ct. App. Apr. 12, 2018) (per curiam), reversing the Jefferson County circuit court’s order. The circuit court order denied Zachary S. Friedlander (“Friedlander”) sentence credit for time that he spent at liberty after being mistakenly released from prison without being transferred, pursuant to a detainer, to serve remaining conditional jail time. The court of appeals remanded this case to the circuit court with directions to amend Friedlander’s judgment of conviction to reflect the sentence credit that Friedlander requested. We reverse the court of appeals.

This court is presented with two issues. First, we must determine the meaning of “in custody” under Wis. Stat. § 973.155 (2015–16). In doing so, we consider whether the court of appeals’ decisions in State v. Riske, 152 Wis. 2d 260, 448 N.W.2d 260 (Ct. App. 1989), and State v. Dentici, 2002 WI App 77, 251 Wis. 2d 436, 643 N.W.2d 180, are in harmony with this court’s decision in State v. Magnuson, 2000 WI 19, 233 Wis. 2d 40, 606 N.W.2d 536. We conclude that for the purpose of receiving sentence credit under § 973.155, a defendant is “in custody” whenever the defendant is subject to an escape charge under Wis. Stat. § 946.42, or another statute which expressly provides for an escape charge, as this court held in Magnuson. In doing so, we overrule the court of appeals’ decisions in Riske and Dentici.

Second, we must determine whether Friedlander is entitled to sentence credit for time he spent at liberty after being mistakenly released from prison without being transferred to serve his remaining conditional jail time. We conclude that Friedlander is not entitled to sentence credit because Friedlander, who was at liberty, could not have been subject to conviction for escape under Wis. Stat. § 946.42. Thus, we reverse the court of appeals.

Reversed and remanded

Concur:

Dissent: ABRAHAMSON, J. dissents (opinion filed). A.W. BRADLEY, J. dissents (opinion filed).

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.