State v. Gavigan, 84-599-CR

Decision Date10 December 1984
Docket NumberNo. 84-599-CR,84-599-CR
CourtWisconsin Court of Appeals
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Michael John GAVIGAN, Defendant-Appellant. *

Donna L. Hintze, Asst. State Public Defender, Milwaukee, for defendant-appellant.

Bronson C. La Follette, Atty. Gen., with Barry M. Levenson, Asst. Atty. Gen., Madison, of counsel, for plaintiff-respondent.

Before WEDEMEYER, P.J., and MOSER and SULLIVAN, JJ.

MOSER, Judge.

Michael John Gavigan (Gavigan) appeals the denial of his motion for postconviction relief in which he sought 107 days credit against his three-year sentence for robbery. Because sec. 973.155, Stats., does not entitle Gavigan to credit, we affirm the trial court's order.

Gavigan stole $1,500 from a Milwaukee bowling alley on September 15, 1982. On September 16, roughly twenty-four hours after the robbery, Gavigan led police officers on a high-speed chase and ultimately he was arrested and charged with fleeing an officer. On September 17, he was charged with the robbery of the bowling alley. Gavigan was unable to post $10,000 bail; therefore, he remained in jail. On October 24, 1982, thirty-nine days after his arrest, he pleaded guilty to the misdemeanor charge of fleeing an officer and was sentenced to six months imprisonment.

Gavigan was later tried for robbery. In a motion in limine before trial, Gavigan successfully argued that evidence of his flight from the police should be excluded. The trial court found that his flight from the officers was unrelated to the charge of robbery and excluded any reference to Gavigan's flight twenty-four hours after the robbery. He was convicted of robbery and was sentenced on February 9, 1983, to three years imprisonment. The three-year sentence for robbery was made concurrent to the six-month sentence for the misdemeanor. The trial court gave him credit for the thirty-nine days served between the time of his arrest and his guilty plea to the misdemeanor. In a posttrial motion Gavigan argued that under sec. 973.155, Stats., he should be credited an additional 107 days representing the time served between October 24, 1982, when he pleaded guilty to the misdemeanor, and February 9, 1983, when he was found guilty of robbery. The trial court denied Gavigan's motion holding that the 107 days were served because of Gavigan's misdemeanor conviction, not because of his inability to make bail.

Section 973.155, Stats., says in pertinent part: "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."

This section requires two determinations: First, whether the offender was "in custody;" and second, whether the custody was "in connection with the course of conduct for which sentence was imposed." It is undisputed that Gavigan was at all times "in custody." The only question is whether the 107 days were served "in connection with the course of conduct for which sentence was imposed [robbery.]"

The construction of a statute is a question of law which this court may review independently. 1 Our initial inquiry is whether the statutory language is clear or ambiguous. A statute is ambiguous if it is capable of being construed in different ways by reasonable, well-informed people. 2 In construing a statute, first recourse is to the language of the statute itself. 3 It is only when a word or phrase used in a statute is not specifically defined that common and approved usage of such a word or phrase and other accepted rules of statutory construction apply. 4 With the above principles in mind, we conclude that the phrase, "in connection with the course of conduct for which sentence was imposed," is ambiguous.

Section 973.155, Stats., was created by ch. 353, Laws of 1977. This section established an entitlement to sentence credit that was broader than prior case law 5 and was intended to extend credit for all days spent in custody in connection with the course of conduct for which sentence was imposed. Previously, the granting of sentence credit depended on a number of factors including the offender's ability or inability to post bail and the type of institution where the time was served. Our supreme court recommended to the legislature that a simpler, more equitable system be enacted based on the federal system. 6 Within a short time, sec. 973.155 was enacted and it is similar to the federal statute. 7

Gavigan argues that Wis J I--Criminal SM34A, which interprets sec. 973.155, Stats., requires a sentence credit of 107 days. The criminal jury instructions committee's analysis of this section is persuasive authority. 8

The committee interprets sec. 973.155, Stats., liberally. The committee notes that the broad phrase "course of conduct" was used in the section instead of narrower words like "offense" or "crime." The committee also defines "in connection with" as meaning that the custody must be, at least in part, the result of the course of conduct for which sentence was imposed. 9

Gavigan argues that after October 24, he was in custody partially because of his failure to make bail on the robbery charge and partially because of his misdemeanor conviction; therefore, his custody was "in connection with" a course of conduct (robbery) for which sentence was imposed. He also argues that the robbery and fleeing charges are closely related enough to constitute a "course of conduct." We disagree with both arguments.

In general, an offender is not entitled to sentence credit under sec. 973.155, Stats., for custody that is being served in satisfaction of another unrelated criminal sentence. 10 If the charges are related, however, sentence credit should be allowed. The jury instructions committee defines charges as related "if they were pending at the same time, if they arise from the same course of conduct, or if a criminal charge in one case was the basis for revocation of probation or parole in the other." 11

In this case, the robbery and fleeing charges were pending at the same time for a total of thirty-nine days. The trial court credited Gavigan with those thirty-nine days. Once Gavigan pleaded guilty to and was sentenced on the fleeing charge, he was in custody solely for his conviction on that misdemeanor and not, as he argues, partly because of his failure to make bail on the robbery charge. When he began serving the misdemeanor sentence on October 24, Gavigan no longer was eligible to be released on bail for the robbery charge. Thus, we reject his argument that after October 24 his custody was "in connection with" the robbery charge because the custody was not due to his failure to make bail on the robbery charge, but was attributable solely to his misdemeanor conviction. Federal court cases dealing with...

To continue reading

Request your trial
49 cases
  • State v. Friedlander
    • United States
    • Wisconsin Supreme Court
    • March 12, 2019
    ...Stat. § 973.155(1)(a) ; see also State v. Johnson, 2007 WI 107, ¶31, 304 Wis. 2d 318, 735 N.W.2d 505 (quoting State v. Gavigan, 122 Wis. 2d 389, 391, 362 N.W.2d 162 (Ct. App. 1984) ). Notably, the term "in custody" is not defined anywhere in the statutes. The parties dispute only whether Fr......
  • State v. Johnson
    • United States
    • Wisconsin Supreme Court
    • June 23, 2009
    ...582, 593 N.W.2d 875 (Ct.App. 1999); State v. Beiersdorf, 208 Wis.2d 492, 496-97, 561 N.W.2d 749 (Ct.App.1997); State v. Gavigan, 122 Wis.2d 389, 391, 362 N.W.2d 162 (Ct.App.1984). After making these determinations, "the court shall make and enter a specific finding of the number of days for......
  • State v. Carter
    • United States
    • Wisconsin Supreme Court
    • July 14, 2010
    ...course of conduct for which sentence was imposed." See Johnson, 304 Wis.2d 318, ¶ 31, 735 N.W.2d 505 (citing State v. Gavigan, 122 Wis.2d 389, 391, 362 N.W.2d 162 (Ct.App.1984)) (citing approvingly of Gavigan's holding that § 973.155(1)(a) requires two determinations: whether the defendant ......
  • State v. Amos
    • United States
    • Wisconsin Court of Appeals
    • November 15, 1989
    ...(Ct.App.1980).39 Id.40 Sec. 973.155(1), Stats.41 See State v. Beets, 124 Wis.2d 372, 369 N.W.2d 382 (1985); State v. Gavigan, 122 Wis.2d 389, 362 N.W.2d 162 (Ct.App.1984).42 Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 901, 47 L.Ed.2d 18 (1976) (quoting Armstrong v. Manzo, 380 U.S.......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT