State v. Abbott, 96-2051-CR

• Court: Court of Appeals of Wisconsin
• Citation: 558 N.W.2d 927,207 Wis.2d 624
• Docket Number: No. 96-2051-CR,96-2051-CR
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Scott A. ABBOTT, Defendant-Appellant. d
• Decision Date: 27 December 1996

Page 927

558 N.W.2d 927 207 Wis.2d 624 STATE of Wisconsin, Plaintiff-Respondent,
v.
Scott A. ABBOTT, Defendant-Appellant. ^d No. 96-2051-CR. Court of Appeals of Wisconsin. Submitted on Briefs Nov. 11, 1996.
Opinion Released Dec. 27, 1996.
Opinion Filed Dec. 27, 1996.

[207 Wis.2d 625] On behalf of the defendant-appellant, the cause was submitted on the briefs of Patricia A. Nitz of Harvey & Nixon, Ltd. of Racine and Losey and Harrold, Inc. of Kenosha.

[207 Wis.2d 626] On behalf of the plaintiff-respondent, the cause was submitted on the brief of Anne W. Fee.

Before ANDERSON, P.J., and BROWN and SNYDER, JJ.

ANDERSON, Presiding Judge.

The defendant, Scott A. Abbott, appeals from the second amended judgment of conviction entered on July 8, 1996, for battery as a habitual offender, contrary to §§ 940.19(1) and 939.62, STATS. The trial court sentenced Abbott to sixty days in the county jail with sentence credit from September 2 through September 14, 1995, and December 12 through December 22, 1995. Abbott was serving a previous sentence under the Department of Intensive Sanctions (DIS) when he committed the battery, and he now seeks additional sentence credit for the eighty-nine day DIS sanction. Because the eighty-nine day sanction was imposed for Abbott's violation of the rules applicable to DIS, and not as part of the presentence custody relating to the battery charge for which presentence credit is sought, we affirm the trial court's judgment of conviction and remand to permit the trial court to issue an amended judgment of conviction.

The facts pertinent to this appeal are not in dispute. In September 1994, Abbott was convicted of fleeing an officer and bail jumping,

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both felonies, for which he served thirteen months in the Division of Corrections. He was then administratively transferred to DIS where he completed a sixteen-week alcohol program. After completion of the alcohol program, but still under DIS supervision, Abbott was placed on electronic monitoring and resided at his uncle's home.

According to the criminal complaint, on September 2, 1995, David Lawrence, Abbott's uncle, returned home from church with his brother, Thomas Lawrence, [207 Wis.2d 627] and a friend, Pat Lesniewski, when they found Abbott "sitting in the backyard drinking beer and getting high." David advised Abbott that he was in violation of his home monitoring rules and indicated that "his conduct would not be tolerated at the house." Abbott became angry and pushed and then punched David approximately three times in the face. David and Thomas struggled with Abbott and eventually pinned him down until officers arrived.

On September 5, 1995, Abbott was charged with battery as a habitual offender, in violation of §§ 940.19(1), 939.51(3)(a) and 939.62, STATS., which underlies this appeal. On September 6, Abbott was transferred to the Racine County Correctional Institute (RCCI). Thereafter, Abbott was given a DIS sanction of eighty-nine days which was served from September 14, 1995, through December 12, 1995.

In the meantime, Abbott pleaded no contest and was adjudged guilty of the charge of battery as a habitual offender on November 30, 1995. The trial court sentenced him to sixty days in the Racine county jail with sentence credit of six days. ¹ Abbott filed a motion to reconsider the sentence credit. He sought additional credit from the time he was initially picked up until the completion of his battery sentence, including the DIS sanction. The trial court concluded that "the time spent in custody during the duration of the sanction is not related to the new course of conduct or the new arrest [and] ... it...