State v. Thompson, 96-0124-CR.
| Decision Date | 14 January 1997 |
| Docket Number | No. 96-0124-CR.,96-0124-CR. |
| Citation | 208 Wis.2d 253,559 N.W.2d 917 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. David THOMPSON, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
For the defendant-appellant the cause was submitted on the briefs of Patricia Flood, assistant state public defender of Milwaukee.
For the plaintiff-respondent the cause was submitted on the briefs of James E. Doyle, attorney general and Paul Lundsten, assistant attorney general.
Before Wedemeyer, P.J., Schudson and Curley, JJ.
David Thompson appeals from judgments entered after he pled guilty to disorderly conduct while armed as party to a crime and possession of a firearm by a felon contrary to §§ 947.01, 939.63, 939.05 and 941.29(2), STATS. He also appeals from an order denying his postconviction motion seeking sentence modification. He claims that the trial court erred when it imposed sentences in this case to run consecutive to previously imposed but stayed sentences in a prior case, where probation had not yet been revoked. Because § 973.15(2), STATS., does allow the trial court to impose sentences under these circumstances, we affirm.
Thompson was originally charged with recklessly endangering another's safety, disorderly conduct while armed, battery and felon in possession of a firearm. On June 19, 1995, he pled guilty to the disorderly conduct and felon in possession of a firearm charges. The remaining charges were dismissed.
The trial court sentenced Thompson to nine and eighteen months to run consecutive to each other and to any other previously imposed sentence. At the time of the sentencing, Thompson had been placed in the intensive sanctions program as an alternative to revoking his probation relating to a previous conviction. The trial court had imposed and stayed a four-year prison sentence placing Thompson on probation for the previous conviction. Approximately two months after the sentencing in the instant case, Thompson's probation in the prior case was revoked.
Thompson filed a postconviction motion asking the trial court to modify the sentence. His argument was that the trial court could not impose the sentence in this case consecutive to the sentence in the earlier case because his probation had not been revoked. The trial court denied his motion. He now appeals.
The issue in this case presents a question of law that we review de novo. State v. Lipke, 186 Wis. 2d 358, 363, 521 N.W.2d 444, 445-46 (Ct. App. 1994). The issue is whether § 973.15(2), STATS., authorizes a trial court to impose a sentence consecutive to a previously imposed and stayed sentence where the previous sentence is to be served only upon revocation of probation and probation has not yet been revoked. The trial court concluded that such authority exists under the statute. After our independent review, we agree.
Section 973.15(2), STATS., provides: "Except as provided in par. (b), the court may impose as many sentences as there are convictions and may provide that any such sentence be concurrent with or consecutive to any other sentence imposed at the same time or previously."
In construing a statute, we look to its plain meaning. State v. Woods, 173 Wis. 2d 129, 136, 496 N.W.2d 144, 147 (Ct. App. 1992). We conclude that the plain meaning of this statute authorizes the trial court to impose a sentence in the case consecutive to a previously imposed and stayed sentence even if the defendant is placed on probation. The key statutory language states: "the court . . . may provide that any such sentence be . . . consecutive to any other sentence imposed at the same time or previously." In the instant case, the trial court ordered that the sentence in the case before it run consecutively to the previously imposed sentence. This is consistent with the plain language of the statute.
We are not persuaded by any of Thompson's arguments to the contrary. He argues that the previous sentence is not actually imposed until probation is revoked. This assertion is incorrect. Thompson's sentence in the previous case was imposed at the time of sentencing. See § 973.09(1)(a), STATS.1 The trial court did not withhold sentencing, but rather stayed the sentence actually imposed and placed Thompson on probation. Id. Revocation of probation is not required to actually impose the sentence. The revocation merely triggers the execution or implementation of the sentence.
Thompson also argues that the trial court in the instant case erred because it...
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State ex rel. McElvaney v. Schwarz
...ordering probation. ¶ 13 Ten years after Booth, we again took up the issue of whether probation is a sentence in State v. Thompson, 208 Wis.2d 253, 559 N.W.2d 917 (Ct.App.1997). We considered whether WIS. STAT. § 973.15(2) authorizes a court to impose a sentence consecutive to a previously ......
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State v. Pegues
...which standard to apply to the consideration of a motion to withdraw a guilty plea. Similarly, in State v. Thompson, 208 Wis. 2d 253, 257-58, 559 N.W.2d 917 (Ct. App. 1997), this court held that when a trial court imposed and stayed a sentence and ordered probation, this constituted a sente......
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State McDonald v. Schwarz
...from his Illinois custody in 2012 was his probation revoked and his consecutive sentence triggered. See State v. Thompson, 208 Wis.2d 253, 257, 559 N.W.2d 917 (Ct.App.1997) (revocation of probation “merely triggers the execution or implementation of the sentence”). Had he reported to his DO......
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State v. Mentzel
...which standard to apply to the consideration of a guilty plea withdrawal motion." More recently, in State v. Thompson, 208 Wis.2d 253, 257-58, 559 N.W.2d 917, 918 (Ct.App.1997), the court of appeals held that an imposed and stayed sentence accompanied by probation was a sentence to which a ......