The court shall order the department to immediately inform the appropriate authorities in the jurisdiction where the prior sentence is to be served that the convicted offender is presently available to commence or resume serving that sentence; and
The trial and commitment records required under s. 973.08
shall be delivered immediately to the warden or superintendent of the Wisconsin institution designated as the reception center to receive the convicted offender when he or she becomes available to Wisconsin authorities.
A convicted offender who is made available to another jurisdiction under ch. 976
or in any other lawful manner shall be credited with service of his or her Wisconsin sentence or commitment under the terms of s. 973.155
for the duration of custody in the other jurisdiction.
are applicable to an inmate serving a sentence to the Wisconsin state prisons for a crime committed before December 31, 1999, but confined in a federal institution or an institution in another state.
If a convicted offender escapes, the time during which he or she is unlawfully at large after escape shall not be computed as service of the sentence.
The sentencing court may stay execution of a sentence of imprisonment or to the intensive sanctions program only:
For not more than 60 days, except that the court may not stay execution of a person's sentence of imprisonment or to the intensive sanctions program under this subdivision if the sentence is for a 3rd or subsequent violation that is counted as a suspension, revocation, or conviction under s. 343.307
, or a violation of s. 940.09 (1)
in the person's lifetime, or a combination thereof.
If a court sentences a person under s. 973.03 (5) (b)
, this subsection applies only to the first period of imprisonment.
Judicial Council Note, 1981:
Sub. (2) has been simplified to allow a court, in imposing a criminal sentence, to order that it be concurrent with or consecutive to any other sentence imposed at the same time or previously. The prior statute, although lengthier and more complicated, failed to achieve its apparent purpose of allowing consecutive sentencing in situations involving probation and parole revocations, escapes, etc. See Drinkwater v. State, 69 Wis. 2d 60
(1975); Guyton v. State, 69 Wis. 2d 663
(1975); Bruneau v. State, 77 Wis. 2d 166
(1977); Smith v. State, 85 Wis. 2d 650
(1978); and Donaldson v. State, 93 Wis. 2d 306
This revision allows sentences to be made consecutive to any previously or simultaneously imposed sentence, without regard to whether the offender is “then serving" such sentence, is subject to parole revocation proceedings, or has received a new sentence between the time of an escape and a return to a state facility. The revised statute also governs the sentencing of probationers by virtue of the cross-references in ss. 973.09 (1) (a) and 973.10 (2) (a). [Bill 341-A]
Judicial Council Note, 1981:
Sub. (8) has been added to specify the circumstances under which execution of a sentence of imprisonment may be stayed. Par. (a) references the rule of Reinex v. State, 51 Wis. 152 (1881) and Weston v. State, 28 Wis. 2d 136
(1965), whereby execution can be stayed for “legal cause", such as during the pendency of an appeal. Par. (b) cross-references the probation statute. Par. (c) is new. It allows the court to delay the commencement of a sentence for up to 60 days. The Wisconsin supreme court recently held that courts have no authority to stay execution of a sentence of imprisonment in the absence of such a statutory provision or legal cause. State v. Braun, 100 Wis. 2d 77
(1981). [Bill 736-A]
Under s. 973.15 (2) and (3), a court may impose a sentence consecutive to an out-of-state sentence. State v. Toy, 125 Wis. 2d 216
, 371 N.W.2d 386
(Ct. App. 1985).
A sentencing court has authority to stay a sentence and order it be served consecutive to a ss. 345.47 and 973.07 commitment for failure to pay a fine and penalty assessment. State v. Strohbeen, 147 Wis. 2d 566
, 433 N.W.2d 288
(Ct. App. 1988).
An adult sentence cannot run consecutive to a juvenile disposition. State v. Woods, 173 Wis. 2d 129
, 496 N.W.2d 144
(Ct. App. 1992).
The sentence of a defendant convicted of committing a crime while committed under a prior not guilty by reason of mental incompetence commitment under s. 971.17 may not be served concurrent with the commitment. State v. Szulczewski, 209 Wis. 2d 1
, 561 N.W.2d 781
(Ct. App. 1997), 96-1323
A court may not order a prison sentence consecutive to an s. 971.17 commitment. A sentence can only be imposed concurrent or consecutive to another sentence. State v. Harr, 211 Wis. 2d 584
, 568 N.W.2d 307
(Ct. App. 1997), 96-2815
The power under sub. (2) to impose consecutive sentences does not grant authority to impose a sentence to be served consecutively to jail time being served as a condition of probation. State v. Maron, 214 Wis. 2d 384
, 571 N.W.2d 454
(Ct. App. 1997), 97-0790
A commitment under s. 971.17 is legal cause under s. 973.15 (8) to stay the sentence of a defendant who commits a crime while serving the commitment. Whether to stay the sentence while the commitment is in effect or to begin the sentence immediately is within the sentencing court's discretion. State v. Szulczewski, 216 Wis. 2d 495
, 574 N.W.2d 660
Sub. (2) authorizes a trial court to impose a sentence consecutive to a previously imposed sentence upon revocation of parole on that sentence. Prior revocation of parole on the earlier sentence is not required before a consecutive sentence may be issued. State v. Cole, 2000 WI App 52
, 233 Wis. 2d 577
, 608 N.W.2d 432
That a sentence begins at noon under sub. (1) was not relevant to a double jeopardy analysis in regard to a sentence pronounced in the morning and then corrected and lengthened the same afternoon before the judgment was entered into the record. State v. Burt, 2000 WI App 126
, 237 Wis. 2d 610
, 614 N.W.2d 42
Double jeopardy prevents a court that, under a mistaken view of the law, entered a valid concurrent sentence from 3 months later revising the sentence to be a consecutive sentence. State v. Willett, 2000 WI App 212
, 238 Wis. 2d 621
, 618 N.W.2d 881
When applicable, sub. (5) dictates giving sentencing credit for the duration of custody in the other jurisdiction. Here, the applicability of s. 973.10 (2) (b) or 973.155 were not dispositive. Whether the petitioner entered a Wisconsin prison before starting his federal sentences, or whether his federal sentences were in connection with the course of conduct for which sentence was imposed, was not the correct test. The question to be answered was whether the petitioner fell within the ambit of sub. (5). State v. Brown, 2006 WI App 41
, 289 Wis. 2d 823
, 711 N.W.2d 708
Sections 302.113 (4), 973.01, and 973.15 establish that consecutive periods of extended supervision are to be served consecutively, aggregated into one continuous period, so that revocation of extended supervision at any time allows revocation as to all consecutive sentences. State v. Collins, 2008 WI App 163
, 314 Wis. 2d 653
, 760 N.W.2d 438
A sentencing court may consider a COMPAS risk assessment at sentencing without violating a defendant's right to due process if the risk assessment is used properly with an awareness of the limitations and cautions set forth in the opinion. Risk scores may not be used: 1) to determine whether an offender is incarcerated; or 2) to determine the severity of the sentence. Additionally, risk scores may not be used as the determinative factor in deciding whether an offender can be supervised safely and effectively in the community. Any Presentence Investigation Report (PSI) containing a COMPAS risk assessment must contain a written advisement listing those limitations and informing sentencing courts of certain cautions set forth in the opinion. State v. Loomis, 2016 WI 68
, 371 Wis. 2d 235
, 881 N.W.2d 749
Overcrowding does not constitute legal cause under sub. (8) (a). 76 Atty. Gen. 165
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. As used in this subsection, “actual days spent in custody" includes, without 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:
While the offender is awaiting imposition of sentence after trial.
The categories in par. (a)
and sub. (1m)
include custody of the convicted offender which is in whole or in part the result of a probation, extended supervision or parole hold under s. 302.113 (8m)
, 302.114 (8m)
, 304.06 (3)
, or 973.10 (2)
placed upon the person for the same course of conduct as that resulting in the new conviction.
A convicted offender shall be given credit toward the service of his or her sentence for all days spent in custody as part of a substance abuse treatment program that meets the requirements of s. 165.95 (3)
, as determined by the department of justice under s. 165.95 (9)
, for any offense arising out of the course of conduct that led to the person's placement in that program.
After the imposition of sentence, the court shall make and enter a specific finding of the number of days for which sentence credit is to be granted, which finding shall be included in the judgment of conviction. In the case of revocation of probation, extended supervision or parole, the department, if the hearing is waived, or the division of hearings and appeals in the department of administration, in the case of a hearing, shall make such a finding, which shall be included in the revocation order.
The credit provided in sub. (1)
shall be computed as if the convicted offender had served such time in the institution to which he or she has been sentenced.
The credit provided in sub. (1)
shall include earned good time for those inmates subject to s. 302.43
, 303.07 (3)
or 303.19 (3)
serving sentences of one year or less and confined in a county jail, house of correction or county reforestation camp.
If this section has not been applied at sentencing to any person who is in custody or to any person who is on probation, extended supervision or parole, the person may petition the department to be given credit under this section. Upon proper verification of the facts alleged in the petition, this section shall be applied retroactively to the person. If the department is unable to determine whether credit should be given, or otherwise refuses to award retroactive credit, the person may petition the sentencing court for relief. This subsection applies to any person, regardless of the date he or she was sentenced.
A defendant aggrieved by a determination by a court under this section may appeal in accordance with s. 809.30
See also s. DOC 302.28
, Wis. adm. code.
The trial court did not abuse its discretion during resentencing when it refused to give the defendant credit for time served on an unrelated conviction that was voided. State v. Allison, 99 Wis. 2d 391
, 298 N.W.2d 286
(Ct. App. 1980).
This section grants credit for each day in custody regardless of the basis for confinement as long as it is connected to the offense for which sentence is imposed. State v. Gilbert, 115 Wis. 2d 371
, 340 N.W.2d 511
When the intended sentence was valid, but the judge did not follow the procedures under this section, the appropriate remedy was to modify the sentence to conform it to the requirements of this section. State v. Walker, 117 Wis. 2d 579
, 345 N.W.2d 413
“Custody" must result from the occurrence of a legal event, process, or authority that occasions, or is related to, confinement on a charge for which the accused is ultimately sentenced. State v. Demars, 119 Wis. 2d 19
, 349 N.W.2d 708
(Ct. App. 1984).
When an offender committed robbery and 24 hours later fled from an officer, the offender was not entitled to credit toward the robbery sentence for time served under the sentence for fleeing an officer. State v. Gavigan, 122 Wis. 2d 389
, 362 N.W.2d 162
(Ct. App. 1984).
When a probationer is arrested for a 2nd crime and consequently begins serving time for the first crime, no credit toward the 2nd sentence is required for time served under the first sentence. State v. Beets, 124 Wis. 2d 372
, 369 N.W.2d 382
No credit was due for time spent in a drug treatment facility as a condition of probation when the defendant was not in actual “custody" at the facility within the meaning of this section and s. 946.42. State v. Cobb, 135 Wis. 2d 181
, 400 N.W.2d 9
(Ct. App. 1986).
Credit under this section is given on a day-to-day basis, which is not to be duplicatively credited to more than one consecutive sentence. State v. Boettcher, 144 Wis. 2d 86
, 423 N.W.2d 533
Presentence credit must be applied to each of the concurrent terms to which the defendant is sentenced. State v. Ward, 153 Wis. 2d 743
, 452 N.W.2d 158
(Ct. App. 1989).
Out-of-state presentence confinement while the defendant was on parole from Wisconsin may not be credited against subsequent reconfinement in Wisconsin for a parole violation. State v. Rohl, 160 Wis. 2d 325
, 466 N.W.2d 208
(Ct. App. 1991).
When a waiver of juvenile jurisdiction is granted, secure juvenile detention time is eligible for credit consideration under this section as if it were jail time, retroactive to the date of the filing of the juvenile petition. State v. Baker, 179 Wis. 2d 655
, 508 N.W.2d 40
(Ct. App. 1993).
The definition of “custody" in s. 946.42 (1) (a) is used to determine whether a person is in custody for sentence credit purposes. State v. Sevelin, 204 Wis. 2d 127
, 554 N.W.2d 521
(Ct. App. 1996), 96-0729
A person confined on a probation revocation or change in intensive sanctions due to an arrest for a subsequent crime is not entitled to credit under sub. (1) against the sentence for the subsequent crime although the confinement was triggered by the subsequent crime. State v. Abbott, 207 Wis. 2d 624
, 558 N.W.2d 927
(Ct. App. 1996), 96-2051
Sub. (1) (a) provides sentence credit only for custody connected to the charges to which the custody resulted from. Time served as the result of a bail jumping charge was not credited against a sentence for sexual assault, although the bail condition violated was in the sexual assault case. State v. Beiersdorf, 208 Wis. 2d 492
, 561 N.W.2d 749
(Ct. App. 1997), 95-1234
When a defendant is unable to satisfy cash-bail requirements on 2 or more unrelated charges, the defendant is entitled to sentence credit on both charges. However, if the defendant is committed following a finding of not guilty by reason of mental defect on one charge, there will be no sentence credit from the commitment against a sentence upon conviction on another of the charges as the confinement after the commitment is solely the result of the commitment. State v. Harr, 211 Wis. 2d 584
, 568 N.W.2d 307
(Ct. App. 1997), 96-2815
An 18-year-old on juvenile aftercare parole who was returned to juvenile detention because the parole was revoked pending sentencing after pleading guilty to an adult crime was eligible for sentence credit for the time spent in juvenile detention prior to sentencing. State v. Thompson, 225 Wis. 2d 578
, 593 N.W.2d 875
(Ct. App. 1999), 97-3245
When a sentence has been withheld and probation imposed, sub. (2) gives the court exclusive authority to determine sentence credit in imposing a postprobation sentence. A person subject to electronic monitoring, but not locked in the home at night, was not in custody and not entitled to sentence credit. State v. Olson, 226 Wis. 2d 457
, 595 N.W.2d 460
(Ct. App. 1999), 98-1450
“Course of conduct" in sub. (1) (a) means the specific act for which the defendant is sentenced. As such, a defendant was not entitled to sentence credit on a later imposed sentence for time already served on sentences arising from the same criminal episode, but different criminal acts. State v. Tuescher, 226 Wis. 2d 465
, 595 N.W.2d 443
(Ct. App. 1999), 98-2564
Pretrial confinement on a dismissed charge that is read in at sentencing relates to an offense for which the offender is ultimately sentenced, entitling the offender to sentence credit. State v. Floyd, 2000 WI 14
, 232 Wis. 2d 767
, 606 N.W.2d 155
bars a claim for dual credit when the defendant has already received the same credit against a prior sentence that the defendant has already served. State v. Jackson, 2000 WI App 41
, 233 Wis. 2d 231
, 607 N.W.2d 338
Detention at the Wisconsin Resource Center while awaiting evaluation and trial on a petition for commitment as a sexually violent person under Chapter 980 satisfies neither the “in custody" nor “in connection with" requirements of this section. The detention does not qualify for sentence credit under this section. Thorson v. Schwarz, 2004 WI 96
, 274 Wis. 2d 1
, 681 N.W.2d 914
An offender who has had extended supervision revoked is entitled to sentence credit on any new charges until the trial court resentences him or her for the available remaining term of extended supervision. A reconfinement hearing is a sentencing, and the revocation is not. The defendant was entitled to sentence credit on the new charge from the date of his arrest until the day of sentencing on both charges because while his extended supervision was revoked, his resentencing had not yet occurred. State v. Presley, 2006 WI App 82
, 292 Wis. 2d 734
, 715 N.W.2d 713
When a defendant has served jail time as a condition of probation and his or her probation is later revoked and the defendant commences serving an imposed and stayed sentence, the defendant is entitled to sentence credit for days spent in custody while in conditional jail time status, even if that custody is concurrent with service of an unrelated prison sentence. State v. Yanick, 2007 WI App 30
, 299 Wis. 2d 456
, 728 N.W.2d 365
Sentence credit must be awarded under sub. (1) (b) for time in custody on an extended supervision hold if the hold was at least in part due to the conduct resulting in the new conviction. State v. Hintz, 2007 WI App 113
, 300 Wis. 2d 583
, 731 N.W.2d 646
The underlying purpose of the sentence credit statute is to afford fairness by ensuring that a person not serve more time than that for which he or she is sentenced. A narrow interpretation of the phrase “in connection with" furthers this purpose. If the defendant would have been in custody even if a charged offense had never occurred, the defendant was not treated unfairly by not receiving sentence credit for that time. State v. Johnson, 2007 WI 107
, 304 Wis. 2d 318
, 735 N.W.2d 505
Sub. (1) (a) requires an award of credit against each sentence imposed for all days spent in custody in connection with the course of conduct underlying the sentence. The “in connection with the course of conduct" requirement applies individually to each concurrent sentence imposed at the same time. Credit due against any individual sentence is not awarded against a concurrent sentence that was not imposed in connection with the course of conduct giving rise to that individual sentence. State v. Johnson, 2009 WI 57
, 318 Wis. 2d 21
, 767 N.W.2d 207
. See also State v. Carter, 2010 WI 77
, 327 Wis. 2d 1
, 785 N.W.2d 516
When an offender is on a parole hold in a different sovereignty that has not acted to revoke parole, the circuit court should grant sentence credit in Wisconsin for the time the offender spent in presentence confinement in Wisconsin. Until the other sovereignty has acted on whether to grant credit, the Wisconsin sentence is the only outstanding sentence against which the court can grant credit. Therefore, the question of “double credit" is not ripe. The Wisconsin court, as the only court the issue of credit is before, should grant credit. State v. Brown, 2010 WI App 43
, 324 Wis. 2d 236
, 781 N.W.2d 244
A court, in determining a sentence, may consider the amount of sentence credit to which the defendant is entitled so long as the court does not do so with the purpose of enlarging the sentence to deprive the defendant of his or her right to receive sentence credit. State v. Armstrong, 2014 WI App 59
, 354 Wis. 2d 111
, 847 N.W.2d 860
A convicted offender is entitled to 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. The defendant in this case was entitled to credit for the time during which he was unable to make cash bail on a burglary charge while he was also confined pursuant to a civil commitment order for contempt of court. Even though the defendant was in custody pursuant to the civil commitment order during the relevant time period, the custody was also in connection with the course of conduct for which the burglary sentence was imposed. State v. Trepanier, 2014 WI App 105
, 357 Wis. 2d 662
, 855 N.W.2d 465
While a circuit court may seek assistance from its court clerk in accessing records that may be relevant to its determination, the award of sentence credit is the court's duty and the court must reach its own conclusion on the amount of sentence credit to be awarded and explain its findings and reasoning on the record. State v. Kitt, 2015 WI App 9
, 359 Wis. 2d 592
, 859 N.W.2d 164
Sub. (4) applies to inmates serving sentences of one year or less and confined in a county jail. Sub. (4) was not applicable to the defendant who had a sentence of more than one year, and therefore, the defendant was not entitled to the good time earned during his failed probationary period to be applied as sentence credit to his confinement time in prison. Baade v. Hayes, 2015 WI App 71
, 365 Wis. 2d 174
, 870 N.W.2d 478
, 2000 WI 14
, remains good law. Floyd
limited the reach of sub. (1) to charges that are dismissed and read in at sentencing. That the trial court discussed a sexual assault, for which the defendant was ultimately acquitted, when sentencing him for an intimidation charge, did not require that the defendant be awarded credit for the time he spent in custody related to the sexual assault charge. State v. Piggue, 2016 WI App 13
, 366 Wis. 2d 605
, 875 N.W.2d 663
In order to receive sentence credit under this section, a defendant must have been in custody. Under s. 946.42 (1) (a), custody can either be actual or constructive. Crucially, however, the escape statute is clear that custody does not include constructive custody of a defendant on probation or extended supervision. Whether a defendant is at liberty through no fault of the defendant is irrelevant to a sentence credit determination. State v. Friedlander, 2019 WI 22
, 385 Wis. 2d 633
, 923 N.W.2d 849
A defendant who spends time in custody on probation holds is entitled to sentence credit for those time periods against the sentences for all counts charged in connection with the course of conduct for which the sentences were imposed. State v. Zahurones, 2019 WI App 57
, 389 Wis. 2d 69
, 934 N.W.2d 905
An award of sentence credit under this section is mandatory. Nothing in this section authorizes the parties to agree to an amount of sentence credit that differs from the amount to which the defendant is entitled under the statute. An agreement between the parties as to the proper amount of sentence credit—even if adopted by the circuit court during the sentencing hearing—does not prevent a defendant from later arguing in a post-conviction motion that the amount of sentence credit awarded by the court was erroneous. State v. Kontny, 2020 WI App 30
, 392 Wis. 2d 311
, 943 N.W.2d 923
A defendant is not entitled to sentence credit for the date on which the defendant is sentenced. The statutory language “awaiting imposition of sentence” does not include the date of sentencing because that is the date a defendant's sentence begins. As such, the date of sentencing is counted toward the service of the defendant's sentence. State v. Kontny, 2020 WI App 30
, 392 Wis. 2d 311
, 943 N.W.2d 923
Jail credit may not be granted if it is not provided for by statute. 71 Atty. Gen. 102
Sentence Credit: More Than Just Math. White. Wis. Law. Oct. 1991.
If an order or judgment releasing a prisoner on habeas corpus is reversed, the time during which the prisoner was at liberty thereunder shall not be counted as part of the prisoner's term.
History: 1993 a. 486