Donaldson v. State
| Decision Date | 08 January 1980 |
| Docket Number | No. 78-193-CR,78-193-CR |
| Citation | 286 N.W.2d 817,93 Wis.2d 306 |
| Parties | Freddie DONALDSON, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. |
| Court | Wisconsin Supreme Court |
Ben Kempinen, Legal Assistance to Inmates Project, Madison, for plaintiff in error.
Bronson C. La Follette, Atty. Gen., and Phillip A. Turner, Asst. Atty. Gen., for defendant in error.
The plaintiff in error (hereinafter the defendant) Freddie Donaldson was sentenced to an indeterminate ten year term for armed robbery to be served consecutively to earlier imposed sentences. He sought modification of the sentence by a post conviction motion brought pursuant to sec. 974.06, Stats. A writ of error was issued to review the trial court's order denying the relief requested.
The sole issue presented for review is whether Freddie Donaldson was "serving" the underlying Wisconsin sentences under sec. 973.15(1), Stats. (1973) when he was sentenced in this case so as to allow the imposition of a consecutive sentence.
We conclude that the defendant was not serving his underlying sentences when the armed robbery sentence was imposed and therefore the trial court lacked the statutory authority to order the sentence to run consecutively.
In September, 1969 Freddie Donaldson entered the Wisconsin State Reformatory at Green Bay to serve four concurrent sentences for theft and burglary. On October 8, 1971 he escaped from the custody of the Division of Corrections in Dane County. Following his escape he committed the armed robbery in Milwaukee county for which he was sentenced in this case.
The defendant then fled to California where he was arrested and convicted for first degree robbery and the theft of a vehicle within that state. He was sentenced respectively to indeterminate terms of six months to five years, and five years to life for those crimes.
While serving the California sentences, the defendant was transported back to Wisconsin pursuant to the Uniform Agreement on Detainers 1 to face trial on one count of armed robbery in the matter before this Court.
The defendant pleaded guilty to the armed robbery charge on May 23, 1974 in the circuit court for Milwaukee county and was sentenced to an indeterminate term of not more than ten years to be "consecutive to existing sentence in California and consecutive to any other sentence defendant may be serving or will be serving from another county in Wisconsin."
The defendant was taken to Dane County where he pleaded guilty to escape and was sentenced to a concurrent three year term to be served with the armed robbery sentence.
Under the terms of the Uniform Agreement on Detainers, Art. V (d), (e), the defendant was required to be turned over to the custody of the California authorities to complete his sentence. This was done, and after serving his California sentences, the defendant was paroled to the custody of Wisconsin correctional authorities on May 2, 1975 to serve the remainder of his Wisconsin sentences.
The courts of this state have no inherent power in criminal cases to stay the execution of a sentence in the absence of statutory authority, except for the limited purpose of affording relief against the judgment itself. Drewniak v. State ex rel. Jacquest, 239 Wis. 475, 484, 1 N.W.2d 899 (1942); Drinkwater v. State, 69 Wis.2d 60, 65-66, 230 N.W.2d 126 (1975). A court's authority in sentencing, including the power to impose consecutive sentences for criminal conduct is controlled by statute. Guyton v. State, 69 Wis.2d 663, 667, 230 N.W.2d 726 (1975); Drinkwater, supra; Bruneau v. State, 77 Wis.2d 166, 168-169, 252 N.W.2d 347 (1977); Smith v. State, 85 Wis.2d 650, 654, 271 N.W.2d 20 (1978).
The sentencing authority of the court with regard to concurrent or consecutive sentences is found in sec. 973.15(1), Stats. (1973) which provides:
This Court has " . . . on numerous occasions pointed out that this section of the statutes is self contradictory and makes almost impossible a rational sentencing procedure," Bruneau v. State, supra, 77 Wis.2d at 169, 252 N.W.2d at 349.
The defendant contends that he was not "then serving" his underlying Wisconsin sentences when the armed robbery sentence was imposed because he was "unlawfully absent" until returned to prison or made "available" to Wisconsin correctional authorities.
Under the provisions of sec. 973.15(1), Stats., unless a court is imposing a primary and consecutive sentence at the same time, it has no authority to impose a consecutive sentence except in cases where the defendant is "then serving a sentence" to which the new term is being made consecutive. Bruneau v. State, supra at 168-171, 252 N.W.2d 347; Drinkwater, supra, 69 Wis.2d at 68-71, 230 N.W.2d 126.
There are three cases recently decided by this Court which are relevant in determining when a defendant is serving a sentence within the meaning of sec. 973.15(1), Stats.
In Drinkwater v. State, supra, the defendant while on probation committed an offense and was sentenced to prison. The defendant was then returned to the court that granted probation. Probation was revoked and the sentences which were originally stayed were ordered to be served consecutive to the intervening sentence. This Court held that " . . . a trial judge has no authority to revoke probation and impose sentence to commence consecutive to another prison term." 69 Wis.2d at 64, 230 N.W.2d at 127. See, also, Smith v. State, 85 Wis.2d 650, 655, 271 N.W.2d 20 (1978).
In Drinkwater this Court extensively discussed the legislative history of sec. 973.10(2), Stats. regarding probation revocation and sec. 973.15(1), Stats. It was determined that sec. 973.15(1), Stats. did not apply in the probation revocation situation. Rather, sec. 973.10(2) mandated that "the term of the sentence (to be imposed upon revocation of probation) shall begin on the date that he enters the prison." The sentences imposed upon the revocation of probation were required to be concurrent with the sentences previously imposed and were to begin on the date the defendant entered prison. 69 Wis.2d at 76, 230 N.W.2d 126.
Although Drinkwater did not apply sec. 973.15(1), Stats., its comprehensive analysis of the legislative history of that section had an important influence on the two subsequent cases, Guyton and Bruneau discussed Infra. The court in Drinkwater, 69 Wis.2d at 70, 230 N.W.2d at 130 said:
The legislative history of this section laid the groundwork for Guyton v. State, supra, decided during the same term as Drinkwater. The defendant in Guyton committed a burglary and was sentenced to prison at a time when he was on parole. The sentence was ordered to run consecutive to any term "that he owes the State as a result of (his) parole violation." Guyton, supra, 69 Wis.2d at 664, 230 N.W.2d at 726. At the time of the sentence, his parole had not yet been revoked. The court in construing sec. 973.15(1), Stats. and the specific section dealing with the tolling of periods of probation or parole, sec. 57.072, Stats., held that the trial court had no authority to order a sentence to be consecutive to the remainder of an earlier sentence yet to be served as a result of the parole violation.
Sec. 57.072, Stats. provided that parole was tolled when the offender commits a crime and does not recommence until "(r)eceipt of the offender at the penal institution to which he has been sentenced . . ." Thus, under sec. 973.15(1), he was not "then serving a sentence."
In Bruneau, ...
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