Fitzgerald v. State
| Decision Date | 30 November 1977 |
| Docket Number | Nos. 76-471-C,76-087-CR,s. 76-471-C |
| Parties | Dianne FITZGERALD, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. Ray Charles McCURTY, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. |
| Court | Wisconsin Supreme Court |
Howard B. Eisenberg, State Public Defender, and Ronald L. Brandt, Deputy State Public Defender, Richard M. Sals, Asst. State Public Defender, submitted brief for plaintiffs in error.
Bronson C. La Follette, Atty. Gen., and John M. Schmolesky, Asst. Atty. Gen., submitted brief for defendant in error.
Both of these cases involve the question of whether Klimas v. State, 75 Wis.2d 244, 248, 249 N.W.2d 285 (1977), requiring the crediting of pre-sentence incarceration time due to indigency, should be made retroactive. 1 We hold that it should.
In both these cases motions for credit for pre-sentence time served in jail, because of inability to post bond, were denied. Both of these cases arose prior to this court's mandate in Klimas.
On January 29, 1975, Ray Charles McCurty pled guilty to armed robbery and on February 28, 1975, was sentenced to five years imprisonment. On July 1, 1975, he made a motion under sec. 974.06, Stats. for credit for 114 days spent in presentence confinement. The motion was denied and a writ of error was taken. The public defender filed a report that based on this court's holding in Byrd v. State, 65 Wis.2d 415, 222 N.W.2d 696 (1974), appellate review of the denial of the motion was without merit.
On January 23, 1977, this court questioned the public defender's no merit report and asked that office to consider whether the holding in Klimas, supra, should be applied retroactively in light of Johnson v. Prast, 548 F.2d 699 (7th Cir. 1977). 2
Dianne Fitzgerald was in jail from August 21, 1975 to the date of her sentence, December 19, 1975, 120 days total. She pled guilty to two counts of armed robbery, party to a crime, and to operating a motor vehicle without the owner's consent, party to a crime. She was sentenced to fifteen years on the first count of armed robbery and to ten years consecutive to the first sentence on the second count of armed robbery. The latter sentence was stayed and she was placed on ten years consecutive probation. She received a one year sentence for operating a motor vehicle without the owner's consent, to run concurrently with the fifteen year sentence. Her motion for credit for 120 days, because of incarceration due to indigency, was denied on January 15, 1976. She pursued a writ of error to review the denial of the motion.
Klimas, supra, held that henceforth and in that case all pre-sentence confinement because of indigency must be applied toward the diminution of the sentence imposed. That result was required by the equal protection clause of the fourteenth amendment.
This court went on to point out in Klimas at 75 Wis.2d 252, 249 N.W.2d 285, that the trial judge should ascertain the number of days the defendant has been held in custody prior to sentencing and then sentence the defendant for the gross amount the judge concludes is appropriate. The judge should then make a separate finding that the defendant had, because of indigency, been obliged to remain in custody for an ascertained period and that such period of time be deemed time served in partial satisfaction of the sentence and credited against that sentence.
The criteria to determine whether a new rule should be retroactively applied are: (1) the effect of the new rule on the fact finding process; (2) the extent of reliance by law enforcement authorities on the old standards; and (3) the effect on the...
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State v. Wisumierski
...Pagelsdorf v. Safeco Insurance Co. of America, 91 Wis.2d 734, 744-45, 284 N.W.2d 55 (1979). In our decision in Fitzgerald v. State, 81 Wis.2d 170, 174, 259 N.W.2d 743 (1977), we articulated the three-pronged test of (1) purpose, (2) reliance, and (3) effect to determine whether a rule shoul......
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N.E., In Interest of
...117 Wis.2d at 376, 344 N.W.2d 181. State v. Wisumierski, 106 Wis.2d 722, 729, 317 N.W.2d 484 (1982). (citing Fitzgerald v. State, 81 Wis.2d 170, 174, 259 N.W.2d 743 (1977)). The effect of the new rule on the fact finding process is the most important of the criteria. Neave, 117 Wis.2d at 37......
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Wilson v. State
...1 It is also acknowledged by the state that Klimas and Byrd were made fully retroactive by this court's decision in Fitzgerald v. State, 81 Wis.2d 170, 259 N.W.2d 743 (1977). Accordingly, the issues posed at the time this case was submitted for oral argument are substantially different than......
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State v. Humphrey
...by law enforcement authorities on the old standards, and (3) the effect on the administration of justice. Fitzgerald v. State, 81 Wis.2d 170, 174, 259 N.W.2d 743, 744 (1977). These three criteria must be balanced by this court in judging retroactivity. No single factor is controlling. The b......