State v. Boettcher

• Decision Date: 24 May 1988
• Docket Number: No. 86-1636-CR,86-1636-CR
• Citation: 144 Wis.2d 86,423 N.W.2d 533
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Cross Petitioner, v. Raymond Scott BOETTCHER, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 533

423 N.W.2d 533

144 Wis.2d 86

STATE of Wisconsin, Plaintiff-Respondent-Cross Petitioner, v. Raymond Scott BOETTCHER, Defendant-Appellant-Petitioner.

No. 86-1636-CR.

Supreme Court of Wisconsin.

Argued March 2, 1988.

Decided May 24, 1988.

Paul M. Cornett, Little Chute, for defendant-appellant-petitioner.

Paul Ludsten, Asst. Atty. Gen., with whom on the brief was Donald J. Hanaway, Atty. Gen., for plaintiff-respondent and cross-petitioner.

HEFFERNAN, Chief Justice.

This is a review and cross-review of a decision of the court of appeals which modified and affirmed a sentencing judgment of the circuit court for Winnebago county, Robert A. Haase, circuit judge. The basic question posed in this court is whether it is permissible under the law to allow additional time-credit reduction on an arrest-related consecutive sentence when the credit for the same period in custody has already been applied upon revocation of probation to reduce a prior-imposed stayed sentence. We conclude that dual credit is not permitted--that the time in custody is to be credited to the sentence first imposed--and that, where the sentences are consecutive, the total time to be served is thus reduced by the number of days in custody as defined by sec. 973.155, Stats. Credit is to be given on a day-for-day basis, which is not to be duplicatively credited to more than one of the sentences imposed to run consecutively. We reverse the court of appeals, which held that the same period of time in custody could be credited to more than one consecutive sentence.

The essential facts are these. Raymond Scott Boettcher (Boettcher) was found guilty of burglary, convicted, and sentenced to a three-year term on July 13, 1984. The imposition of the sentence was stayed, and Boettcher was placed on probation.

On April 11, 1986, probation agents, acting on a tip, entered Boettcher's residence and discovered that he was in possession of a handgun. On the next day, April 12, 1986, Boettcher was arrested on a probation-hold warrant for violating the conditions of his probation by possessing firearms. He remained in custody on the probation hold until a revocation order and warrant were issued on July 21, 1986. On that day, the previously imposed, but stayed, burglary sentence commenced to run.

Whether Boettcher was initially arrested and taken into custody for the crime of being a felon in possession of firearms, as distinguished from being taken into custody on April 12, 1986, on the probation hold, is not clear from the record. ¹ However, an information charging him with that Class E. felony was filed with the Winnebago county circuit court on April 24, 1986. He was, however, released from custody on the firearms charge, on a signature bond on April 22, 1986. He did not go free, because he remained in custody on the probation hold.

The initial appearance and release on bail on the firearms charge occurred on April 22, 1986, and the preliminary examination and bindover for trial on the firearms charge took place on April 24, 1986.

On July 21, 1986, the probation status which resulted from the 1984 burglary conviction was revoked, and Boettcher was ordered to commence his three-year sentence. He was, however, given one hundred days credit on that sentence for the period from the date of being placed in custody on the probation hold until the date of probation revocation.

Boettcher pleaded no contest to the firearms charge, and on July 23, 1986, was sentenced to a one-year term to be served consecutively to the sentence for burglary. The trial judge allowed no preconviction-custody credit to be applied to the firearms sentence.

It was from this ruling that Boettcher appealed, claiming he was entitled to full credit on the firearms sentence, i.e., reduction in the time to be served on that sentence for the number of days in custody from the date of original incarceration, April 12, 1986, until the date of the probation revocation, when he commenced serving a prison sentence on the 1984 burglary conviction. His basic argument is that, for that period of one hundred days, he was in custody on both the firearms charge and the pending probation revocation and, hence, should be credited with that amount of time against each sentence. It should be noted, of course, that neither the state nor the defendant objects to the credit as applied to the underlying burglary sentence. The dispute is solely concerned with the question of time credits, if any, to be applied to the new sentence arising out of possession of firearms.

The state's argument was, and is, simply that, where consecutive sentences are imposed, credit for time spent in custody can be awarded but once, irrespective of the number of consecutive sentences imposed.

The court of appeals elected to approve of dual-time credits for the period from initial custody until Boettcher was released on his signature bond from custody on the firearms charge. It reasoned that thereafter the custody was not relevant to the firearms charge, but only to the probation hold. Thus, the court of appeals modified the trial court sentencing judgment by giving ten days credit for the confinement of Boettcher until his bail order on the firearms charge. It affirmed the circuit court's judgment, to credit the full period of custody from arrest to revocation against the burglary sentence previously imposed and stayed.

Both defendant and the state have asked us to review the court of appeals decision. Boettcher continues to assert the entitlement to full dual credit. While acknowledging that in cases where sentences are concurrent dual credit may be permissible, the state argues that no dual credit is allowable where consecutive sentences are imposed. We agree with the state's position and reverse the court of appeals in respect to granting ten days credit towards the satisfaction of the firearms sentence.

The first opinion of this court requiring that time in custody must be credited against a sentence ultimately imposed was Klimas v. State, 75 Wis.2d 244, 249 N.W.2d 285 (1977). Klimas, in its rationale, is however irrelevant to the case here, for Klimas was based upon a constitutional equal-protection analysis that concluded it was improper to allow pretrial discrimination on the financial ability to make bail to go unrectified. It was recognized that the state had an overriding need to assure the production of defendants at trial, and that this necessarily resulted in disparate treatment of the rich, who could make bail, and the poor, who could not. We accepted that disparate treatment, but only on the condition that, in the event of conviction, pretrial custody--for whatever reason--be credited against time to be served upon conviction. We are not faced with a Klimas-like situation here. No equal-protection problem is raised. Klimas is, however, of significance, because it gives us some indication of how the legislatively prescribed sentence-credit statute ought to be applied.

Although the Klimas holding was a narrow one requiring sentence credit in the case of an impoverished defendant who could not post bail, this court invited the legislature to adopt a broader rule. This court specifically invited the legislature's attention to the existing federal law, 18 U.S.C.A. sec. 3568. We stated that the federal law being "simple and ... just" had much to recommend it. Under that law, we pointed out, any presentence confinement periods, whether because of financial inability to make bail, unwillingness to be released on bail, or for purpose of examination, were to be treated alike and were to be credited against an eventual sentence. See, Klimas, 75 Wis.2d at 251.

Only a month after the mandate in Klimas, the senate introduced a bill, 1977 Senate Bill 159, which relied on the philosophy of the federal law. In a somewhat altered form as an assembly bill, a sentencing credit bill was enacted. That act is the one in effect today and is the one which controls the disposition of this case. That act provides:

"973.155 Sentence credit. (1)(a) A convicted offender shall be given credit toward the service of his or her sentence for all days spent in custody in connection with the course of conduct for which sentence was imposed. As used in this subsection, 'actual days spent in custody' includes, without limitation by enumeration, confinement related to an offense for which the offender is ultimately sentenced, or for any other sentence arising out of the same course of conduct, which occurs:

"1. While the offender is awaiting trial;

"2. While the offender is being tried; and

"3. While the offender is awaiting imposition of sentence after trial.

"(b) The categories in par. (a) include custody of the convicted offender which is in whole or in part the result of a probation or parole hold under s. 57.06(3) or 973.10(2) placed upon the person for the same course of conduct as that resulting in the new conviction."

That the federal legislation referred to in Klimas influenced the Wisconsin Act is clear from the Legislative Council's notes:

"If enacted, the Bill would clarify a currently unclear and chaotic area of the law ... and would bring Wisconsin law into conformity with the recommended minimum criminal justice sentencing standards of the American Bar Association, Section 7.09 of the American Law Institute's Model Penal Code, federal criminal sentencing procedures as set forth in 18 U.S.C. s. 3568 and the laws of many other states." Wisconsin Legislative Council Report No. 6 to the 1977 Legislature: Legislation Relating to Credit for Time in Jail, 2.

From the foregoing, it appears that the Wisconsin sentence-credit statute, sec. 973.155, Stats., has its roots not only in the equal-protection analysis of Klimas, but also in the federal sentence-credit statute, 18 U.S.C. sec. 3568, and in the Model Penal Code sec. 7.09. Consequently, both of these sources would appear to be persuasive authority in...