State v. Seals
| Decision Date | 31 October 1974 |
| Citation | 65 Wis.2d 434,223 N.W.2d 158 |
| Parties | STATE of Wisconsin, Plaintiff, v. Dwayne SEALS, Defendant. |
| Court | Wisconsin Supreme Court |
The defendant, Dwayne Seals, was convicted of armed robbery in violation of secs. 943.32(1)(a)(2) and 939.05, Stats., and sentenced to ten years in the state reformatory. As court-appointed counsel, Attorney John F. Maloney has submitted a complete and thorough no-merit report, concluding that there would be no arguable merit to an appeal of the conviction. The defendant has filed a reply to such no-merit report.
The defendant's conviction on the charge of armed robbery grew out of an armed holdup of a liquor store on May 16, 1972, in the city of Milwaukee. Defendant and two others were charged with participating in the armed robbery, and with engaging in a gunfight with police officers immediately thereafter. As a result of an exchange of gunfire during the course of his arrest the next day, the defendant's fiancee, Jacqueline Ford, was fatally shot. Defendant was arrested on the basis of three arrest warrants.
Seven issues are raised here, four by counsel and three by defendant. Except for one issue raised, all lack arguable merit. The one issue that requires special consideration, in the light of the Byrd v. State decision, 1 is defendant's contention that because of his inability to make bail and the fact that his incarceration pending trial was not credited against his sentence, he was denied equal protection under the Fourteenth Amendment to the United States Constitution. A corollary, but included, contention is that because of his seeking and securing a jury trial such preconviction incarceration due to inability to post bail was lengthened.
In the Byrd Case, the majority of this court rejected the reasoning and result of cases holding that '. . . where, for whatever reason, a defendant remains in jail prior to his trial he must be given credit on the statutorily fixed sentence ultimately imposed for all periods of actual confinement . . ..' 2 Such holding would require an automatic offset, as to any prison sentence imposed, for all time spent in jail before the sentence was imposed, including both preconviction confinement due to inability or disinclination to post bail or time spent in jail following conviction but before sentencing. Instead, the majority of this court adopted the rule of a federal district court decision finding the essential question to be '. . . whether the time a prisoner spends in custody prior to trial when added to the sentence to be served upon commitment can total more than the statutory maximum punishment for the crime involved . . ..' 3 The federal district court holding, under the rule adopted by the majority of this court, is limited (1) to time spent in custody before conviction, and (2) to cases where such time, added to the sentence imposed, exceeds the statutory maximum punishment. Where the preconviction time in jail added to the sentence imposed does not reach the maximum possible under the statute, the rule and the credit it gives is inapplicable. Here the defendant was sentenced to ten years in prison on a charge where the statutory maximum is thirty-five years. The defendant here claims entitlement to a credit against the sentence imposed of 'approximately eight months in jail' before trial. That period of time, added to the ten-year sentence imposed, does not bring the total reached within hailing distance of the statutory maximum of thirty-five years. The Byrd ruling does not here apply and, under the Tews rule of this court, 4 there is no merit to defendant's claim of entitlement to an offset, particularly because the fact of the preconviction confinement was known to the court (in fact, specifically stated by defense counsel at the time of sentencing as a factor for the court to consider). That a portion of the time required to bring the case to trial was occasioned by defendant's demand for a jury trial does not bring the (as to claim of denial of speedy trial) consist only where the maximum statutory penalty is exceeded when sentence imposed and preconviction confinement time are added together.
As to other issues raised, we find no arguable merit in any of them. As to defendant's arrest in the house of another without a search warrant, there were three outstanding arrest warrants against the defendant, clearly warranting the arresting officers in believing, on reasonable grounds, that the defendant was to be placed under arrest. 5 As to the claim of being forced to participate in a lineup without presence of counsel, it is enough to note that the trial court, following a Wade-type hearing, held the identifications arising out of such lineup to be inadmissible. As to the claim of denial of right to speedy trial, under the four-factor test of this court in Day v. State, 6 it is clear that the conducting of pretrial Wade and Goodchild hearings, the motion to sever trials of the three defendants charged with armed robbery and the fact that the defendant was to be tried for several offenses, made the eight months' delay, by reason of the complexity of the pretrial proceedings, necessary...
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Brinkman v. Schubert, 74-C-468
...maximum. State v. Wills, 69 Wis.2d 489, 230 N.W.2d 827 (1974); Hall v. State, 66 Wis.2d 630, 225 N.W.2d 493 (1975); State v. Seals, 65 Wis.2d 434, 223 N.W.2d 158 (1974); Byrd v. State, 65 Wis.2d 415, 222 N.W.2d 696 (1974). Respondents agree that it would be futile for these petitioners to e......
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Milewski v. State
...of inconsistent federal case law on the subject of credit for preconviction incarceration, and in State v. Seals (1974), 65 Wis.2d 434, at page 436, 223 N.W.2d 158, at page 159, 'In the Byrd Case, the majority of this court rejected the reasoning and result of cases holding that '. . . wher......
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State v. Wills
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Mitchell v. State, S
...of equal protection adopted by this court in Byrd v. State (1974), 65 Wis.2d 415, 222 N.W.2d 696, and restated in State v. Seals (1974), 65 Wis.2d 434, 223 N.W.2d 158. I am unable to accept such In Byrd, supra, the defendant did in fact receive two consecutive maximum sentences. Equal prote......