State v. Gilbert

Decision Date30 November 1983
Docket Number82-1838-CR and 83-265-CR,Nos. 82-1837-C,s. 82-1837-C
Citation340 N.W.2d 511,115 Wis.2d 371
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. David Lee GILBERT, Defendant-Appellant. STATE of Wisconsin, Plaintiff-Respondent, v. David Lee GILBERT, Defendant-Appellant. STATE of Wisconsin, Plaintiff-Respondent, v. Leonard K. BRAXTON, Defendant-Appellant.
CourtWisconsin Supreme Court

Margaret A. Maroney, (argued), Asst. State Public Defender, for defendant-appellant, David Lee Gilbert.

Alan G. Habermehl, Madison (argued), for defendant-appellant, Leonard K. Braxton; Kalal & Habermehl, Madison, on brief.

Pamela Magee-Heilprin (argued), Asst. Atty. Gen., for plaintiff-respondent; Scott L. Horne, La Crosse County Asst. Dist. Atty., Bronson C. La Follette, Atty. Gen., on brief.

Frank J. Remington, Jackson Professor of Law, and Ronald F. Talsky, Supervising Atty., for the Legal Assistance To Institutionalized Persons Program, Madison, amicus curiae.

STEINMETZ, Justice.

The issue in these cases is the same and that is whether sec. 973.155, Stats., 1 requires that a defendant be granted credit toward his sentence for time spent in the county jail as a condition of his probation.

David Lee Gilbert, pled guilty on April 23, 1982, to the misdemeanor charges of resisting an officer 2 and bail jumping. 3 That same day, the Honorable Peter G. Pappas, La Crosse county circuit judge, adjudged Gilbert guilty and sentenced him. On the resisting charge, Gilbert was sentenced to two months in the county jail. Sentence was stayed and he was placed on probation for six months, with the condition that he spend the first thirty days in the county jail. Gilbert received a four-month sentence to the county jail for the bail jumping offense, which was also stayed. For the bail offense, he was placed on probation for one year, concurrent with the other probation term, with the condition that he serve the first sixty days in the county jail. Judge Pappas further ordered that Gilbert be given 24 days credit against both of these sentences, 4 and that the credit apply to the condition of probation confinement.

Gilbert was confined in the La Crosse county jail for sixty days, from March 30, 1982, to May 28, 1982, as fulfillment of the court's condition of his probation. At the time Judge Pappas granted probation, he also ordered Gilbert be allowed work release privileges.

Gilbert's probation was revoked on August 9, 1982, approximately two months after his release from the county jail.

A hearing was held before the sentencing judge on Gilbert's motion for sentence credit on September 13, 1982. Counsel requested that sixty days credit be given for the time Gilbert spent in the county jail as a condition of probation relying on Wis.J.I.--Criminal, Part III, SM-34A 5 as authority. The state did not object to the motion. The court ruled it would not give Gilbert credit for the time spent in jail as a condition of probation. Gilbert appealed; this court accepted certification from the court of appeals.

On March 23, 1981, Leonard K. Braxton was charged with the misdemeanor of battery 6 and as a repeater. 7 On August 28, 1981, Braxton entered a plea of no contest to the charges. The plea was accepted by the Honorable Michael B. Torphy, Jr., Dane county circuit court judge, who adjudged Braxton guilty of the offenses and ordered a presentence investigation.

On October 19, 1981, the court entered judgment withholding sentence, and placing Braxton on probation for a period of two years, with the condition that Braxton spend the first 12 months of that probation confined to the Dane county jail. The court also granted defendant credit toward the probationary incarceration of 26 days for preconviction confinement due to inability to post bail.

Braxton's probation was subsequently revoked. In a letter dated July 3, 1982, the department of health and social services conveyed to the circuit court an order revoking Braxton's probation and a warrant for his arrest. The court scheduled a second sentencing proceeding, which was held on August 30, 1982. The court imposed a sentence of confinement to the Wisconsin state prison system for a term of 30 months. The court granted Braxton 179 days of credit for preconviction incarceration and for time spent in custody from the date of the imposition of the probation hold through the date of sentencing. Counsel requested that the court also grant Braxton credit for the period from October 19, 1981, through March 31, 1982, some 164 days, which time Braxton spent incarcerated in the county jail as a condition of his probation. The court refused to grant such credit and on September 17, 1982, entered judgment of conviction embodying the court's sentence and decision on credit. On February 14, 1983, Braxton filed a notice of appeal from the sentence imposed by the trial court, for the purpose of reviewing the court's decision denying him credit for probationary jail time. The court of appeals certified the appeal to this court and we accepted the certification.

Sec. 973.155(1)(a), Stats., requires that a sentenced defendant be given credit "for all days spent in custody in connection with the course of conduct for which sentence was imposed." Actual days in custody are described as including:

"[W]ithout 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."

In the absence of ambiguity, this court will give the words of a statute their obvious and ordinary meaning and will not resort to judicial rules of construction. Parker v. Percy, 105 Wis.2d 486, 489, 314 N.W.2d 166 (Ct.App.1981); Wis. Bankers Ass'n v. Mut. Savings & Loan, 96 Wis.2d 438, 450, 291 N.W.2d 869 (1980). A statute is ambiguous if reasonably well-informed persons can understand it in more than one sense. Parker, 105 Wis.2d at 489, 314 N.W.2d 166.

Sec. 973.155(1)(a), Stats., is not susceptible to more than one interpretation; there is no basis for interpreting the statute as excluding custody as a condition of probation from the statute's coverage.

The statute provides that a defendant is entitled to credit for all days in custody that are connected to the course of conduct for which sentence was imposed. There is no question that the condition of probation jail time in the case of each Gilbert and Braxton is connected to "the course of conduct for which sentence was imposed," because the incarceration was a condition of each defendant's probation following conviction of their respective crimes and for their same offenses for which the sentences were imposed.

The question is whether confinement in the county jail as a condition of probation, with or without work release privileges, is being in "custody" within the meaning of the credit statute. The statute does not contain a definition for "custody;" however, the word has a common meaning. In the absence of a statutory definition, all words are construed according to common and approved usage. State v. Ehlenfeldt, 94 Wis.2d 347, 356, 288 N.W.2d 786 (1980); sec. 990.01(1), Stats. 8

The common meaning of such words may be established by using dictionary definitions. Ehlenfeldt, 94 Wis.2d at 356, 288 N.W.2d 786. Webster's Third New International Dictionary (1966) at 559, defines "custody" as: "guarding, keeping ... 2: judicial or penal safekeeping: control of a thing or person with such actual or constructive possession as fulfills the purpose of the law or duty requiring it: imprisonment or durance ['restraint by or as if by physical force: confinement, imprisonment ...'] of persons ..." The Random House Dictionary of the English Language (1966) at 357, defines "custody" as: "2. the keeping or charge of officers of the law ... 3. imprisonment; legal restraint." Both Gilbert's and Braxton's incarceration in the county jail as a condition of probation fall within any of those definitions.

The Wisconsin Criminal Jury Instructions Committee drafted special material to suggest standards for the proper determination of sentence credit under sec. 973.155, Stats. Wis.J.I.--Criminal, Part III, SM 34A. The committee suggests "that the definition of 'custody' used for purposes of the criminal escape statute, sec. 946.42, may also be applicable to the sentence credit issue: If any part of the offender's status would be considered 'custody' for purposes of escape sentence, credit is due." 9 Id. at 6.

Applying this standard, the committee recommended that credit be given for detention in the county jail during nonworking hours as a condition of probation. Id. at 6 and 10.

The special material is a comprehensive study of the sentence credit statute with guidelines for its implementation in the trial court. This special material prepared by the Criminal Jury Instructions Committee is entitled to the same weight that the Wisconsin Supreme Court gives to the committee's uniform jury instructions. In State v. Kanzelberger, 28 Wis.2d 652, 659, 137 N.W.2d 419 (1965), the supreme court noted that the instructions "are the product of painstaking effort of an eminently qualified committee of trial judges, lawyers, and legal scholars, designed to accurately state the law and afford a means of uniformity of instructions throughout the state." See State v. Genova, 77 Wis.2d 141, 150-51, 252 N.W.2d 380 (1977), as recent cases demonstrating the Wisconsin Supreme Court's view that the committee's work is persuasive.

The attorney general issued an opinion dated March 23, 1982, 71 Op.Att'y Gen. 102 (1982), which stated that the department of health and social services did not have authority to grant jail credit where it is not provided by statute, i.e., "for the period of time the...

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