Hall v. State

• Decision Date: 04 February 1975
• Docket Number: No. S,S
• Citation: 225 N.W.2d 493,66 Wis.2d 630
• Parties: Charles Ray HALL, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error. tate 166.
• Court: Wisconsin Supreme Court

Page 493

225 N.W.2d 493

66 Wis.2d 630

Charles Ray HALL, Plaintiff-in-Error, v. STATE of Wisconsin, Defendant-in-Error.

No. State 166.

Supreme Court of Wisconsin.

Feb. 4, 1975.

Howard B. Eisenberg, State Public Defender, Madison, for plaintiff-in-error.

Bronson C. La Follette, Atty. Gen., and David J. Becker, Asst. Atty. Gen., Madison, for defendant-in-error.

DAY, Justice.

This case raises the question as to when a challenge to a sentence must be made by appeal or writ of error which alleges the failure of the trial court to consider preconviction incarceration-time spent in jail because of financial inability to post bail.

Plaintiff in error Charles Ray Hall was convicted under secs. 943.32(1)(b), 943.32(2), and 939.05, Stats., of armed robbery as a party to a crime upon his plea of guilty on February 15, 1971. He received a sentence of fifteen years in prison, one half of the maximum. On June 2, 1974, he moved that his sentence be modified to give him credit for time spent in the Milwaukee county jail prior to sentencing. In support of the motion, he alleged he was arrested on June 22, 1970; that he was unable to post bond; and that he remained incarcerated until his trial date. This was a period of approximately eight months. Upon receiving this pro se motion, the trial judge wrote plaintiff in error a letter under date of June 5, 1974, stating:

'I have checked the Court transcript and the Court file and after reviewing the same I do not see fit to alter the sentence imposed by this Court on February 15th, 1971.'

This letter was treated as an order and a writ of error was issued by this court to review it. The state public defender, representing Mr. Hall, has moved that the order denying the motion for reduction of sentence be vacated and the cause be remanded for reconsideration in light of our decision in Byrd v. State (1974), 65 Wis.2d 415, 222 N.W.2d 696. The state has opposed this motion on the ground the Byrd decision ought to be prospective only in its application.

We announced two rules in Byrd with regard to consideration of preconviction incarceration. The first was that:

'. . . a defendant must be given credit for time spent in custody prior to conviction to the extent such time added to the sentence imposed exceeds the maximum sentence permitted under the statute for such offense, provided such time spent in custody was a result of the criminal charge for which a prison or jail sentence is imposed or as a result of the conduct on which such charge is based, provided further that such custody was the result of the defendant's financial inability to post bail . . . where the statutory maximum sentence is given the failure to give credit for preconviction time spent in custody violates the Equal Protection Clause of the Fourteenth Amendment.' 65 Wis.2d at 424, 222 N.W.2d at 701.

The second rule is that it is mandatory for the trial judge to consider pretrial incarceration in determining any sentence to be imposed. Byrd does not make mandatory a credit under such circumstances, nor does it make the failure to take pretrial incarceration into account a denial of equal protection, in the absence of a showing that the maximum term prescribed by law for the offense has been exceeded. Rather, the second Byrd rule...