State v. Wills

• Decision Date: 30 June 1975
• Docket Number: No. S,S
• Parties: STATE of Wisconsin, Respondent, v. Thomas S. WILLS, Appellant. tate 223.
• Court: Wisconsin Supreme Court

Page 827

230 N.W.2d 827

69 Wis.2d 489

STATE of Wisconsin, Respondent, v. Thomas S. WILLS, Appellant.

No. State 223.

Supreme Court of Wisconsin.

June 30, 1975.

On pleas of guilty, the defendant, Thomas Sanford Wills, was convicted of the crimes of burglary, forgery and battery, in violation of secs. 943.10, 943.38(2) and 940.20, Stats. The maximum sentences for these criminal offenses are: burglary, ten years; forgery, ten years; and battery, six months. On March 12, 1969, the defendant was sentenced to four years' incarceration on the burglary conviction, three years for forgery, and six months for battery, all sentences to run concurrently. Execution of the sentences was stayed and the defendant was placed on probation. One of the conditions of probation was that the defendant spend nonworking hours in the county jail during the first year of probation pursuant to sec. 57.01(6), Stats., a statute that was repealed effective July 1, 1970.

Following his subsequent conviction on a charge of robbery, the defendant, on August 9, 1971, was found to have violated the conditions of probation and a revocation order was issued. Subsequent to the revocation of his probation, the defendant filed repetitive motions for postconviction relief under sec. 974.06, Stats. The first two, filed pro se, requesting an evidentiary hearing and modification of sentence on constitutional grounds, were denied on January 21, 1972, and June 7, 1974. The third motion, brought on December 11, 1974, with assistance of counsel, sought correction of sentence for the reason that the defendant was not credited with the period of incarceration under the condition of probation and prior to revocation of probation. On January 3, 1975, this motion was denied. Appeal is taken from the order denying the third motion.

Charles Bennett Vetzner, Corrections Legal Services Program, Madison, for appellant.

Bronson C. LaFollette, Atty. Gen., and James H. Petersen, Asst. Atty. Gen., Madison, for respondent.

ROBERT W. HANSEN, Justice.

The endeavor here is to extend the holding of this court in a recent case, the Byrd Case, ¹ from the facts there involved to the fact situation present in this case. However, the initial issue is whether the appeal here is precluded.

PROPRIETY OF APPEAL. The state argues that defendant's failure to appeal the denial of either or both of his first two motions for postconviction relief precludes him from appealing the denial of the third such motion. We agree that successive motions for postconviction relief, raising the same issues and seeking the same relief, need not be entertained. Even in the absence of a specific statute prohibiting such repetitive motions, ² permitting appellate review of a denial of a second postconviction motion after the denial of a first motion raising the same issue would be an extension of time limits set for appeal on such motions. ³ The statute providing for postconviction relief does not envision or authorize a successor motion for such relief raising an issue earlier raised and determined on a predecessor motion for postconviction relief. However, in the case before us, there was no written decision of the trial court, made part of this record, which would enable us to determine that the issue now raised had been considered and decided on the two earlier pro se motions. Resolving in favor of the defendant this doubt as to precise issues raised and ruled upon in the two earlier motions for postconviction relief, we hold this defendant is not precluded from bringing this appeal. This circumstance, plus the importance of the issue raised, makes it appropriate for this court to exercise its discretion to resolve the issue presented. ⁴

THE BYRD CASE. It is clear that the holding of this court, in Byrd, ⁵ does not reach or cover the fact situation present in the case before us. In Byrd, this court held that a defendant '. . . must be given credit for time spent in custody prior to conviction to the extent such time added to the sentence imposed exceeds the maximum sentence permitted under the statute for such offense . . . provided further that such custody was the result of the defendant's financial inability to post bail.' ⁶ In the case before us, as to the two felony charges, we do not deal with the imposition of a maximum sentence. The defendant was sentenced to four years on the charge of burglary, and three years for forgery. The maximum sentence for each offense was ten years. We do not deal with time spent in custody prior to conviction. We deal with the deprivation of liberty during nonworking hours for the first year under probation. This is a condition of probation, not part of a sentence of imprisonment, and not time spent in custody prior to conviction. Additionally, the time spent in partial confinement as a condition of probation was not such custody as was the 'result of the defendant's financial inability to post bail.' As this court concurrently made clear, the Byrd ruling '. . . 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.' ⁷ For more than a single reason, the facts in the case before us place it outside the limits of the Byrd holding.

DOUBLE JEOPARDY. Defendant's brief on appeal contends that '. . . a double jeopardy problem exists in this case because appellant has been incarcerated in jail and did not receive credit for that detention when sentence was imposed.' Defendant cites a federal court case, Culp v. Bounds, ⁸ as granting credit for pretrial detention on double jeopardy as well as equal protection grounds. That is the case cited, quoted and followed in Byrd. ⁹ However, in Byrd this court held: 'We agree with that part of the reasoning of the court in the case of Culp v. Bounds . . . holding that where the statutory maximum sentence is given the failure to give credit for preconviction time spent in custody violates the Equal Protection Clause of the Fourteenth Amendment.' ¹⁰ As to those accused who are unable to raise bail, this court agreed with Culp that there was involved ". . . an invidious discrimination against the poor in violation of the equal protection clause . . .." ¹¹ Thus, not accepted but rejected, was that part of the Culp decision finding a double jeopardy, as well as an equal protection base for granting credit for pretrial detention due to inability to post bail. In Byrd, as Seals makes clear, this court rejected the automatic offset that double jeopardy applicability would require, ¹² and 'the reasoning and result of cases (so) holding.' ¹³

Thus the Byrd Case places the granting of credits for pretrial detention solely on the ground of equal protection. Defendant sees the Pearce Case ¹⁴ as commanding that the constitutional guaranty of no-double-jeopardy also apply. In Pearce, the United States Supreme Court held that no-double-jeopardy requires that '. . . punishment already exacted for an offense is not fully 'credited' in imposing sentence upon a new conviction for the same offense.' ¹⁵ There the high court was enforcing the constitutional protection against multiple punishments for the same offense. The court itself made this clear, stating: 'If, upon a new trial, the defendant is acquitted, there is no way the years he spent in prison can be returned to him. But if he is reconvicted, those years can and must be returned--by subtracting them from whatever new sentence is imposed.' ¹⁶ That is not the situation now before this court. Here there is no element of resentencing involved, certainly no new conviction and substituted new sentence for the same offense. Here there was a single sentence imposed for each of three offenses, ¹⁷ all to run concurrently and all stayed as to their execution so that the defendant could have the opportunity of probation, with non-working-hours' confinement a condition for one year of such probation. When the defendant committed a subsequent robbery, the stay of execution was terminated and the original sentences imposed became his to serve. In a case involving commitment to a state reforestation camp as a condition attached to probation, our court held that such condition did not constitute either a sentence or sentencing. ¹⁸ For our purposes here, it is enough to hold that we do not see the Pearce rule as to credit for time served upon resentencing for the same offense as affecting or being inconsistent with the Byrd ruling that granting of credits for pretrial detention involves equal protection, not double jeopardy.

DUE PROCESS. The defendant claims a denial of due process or fair play under the fourteenth amendment because '. . . appellant has been subjected to a longer period of incarceration than if his sentence had commenced immediately upon conviction.' It is as true that, if the defendant had not violated the conditions of his probation by committing a subsequent robbery, he would have served no prison sentence at all. The classification or different result is based on the conduct of the defendant while on probation. The situation is analogous to that raised in the Pearce Case where the defendant argued that, since convicts who do not seek a new trial cannot have their sentences increased, '. . . it creates an invidious classification to impose that risk only upon those who succeed in getting their original convictions set aside.' ¹⁹ The high court agreed that a convicted defendant, securing a new trial, '. . . may receive a shorter sentence, he may receive the same sentence, or he may receive a longer sentence than the one originally imposed.' ²⁰ It held that it '. . . simply cannot be said that a State has invidiously 'classified' those who successfully seek new trials, any more than that the State has invidiously 'classified' those prisoners whose convictions are not set aside by denying the members of that group the opportunity to be acquitted.' ²¹ That was true...