Credit denied on concurrent sentences by Wisconsin Supreme Court.

• Author: Ziemer, David

Byline: David Ziemer

Suppose a client is out on bail and gets arrested for a new offense.

You'll need to think about whether you'll be able to get him released back on the street or not.

If you think you can, then you'll want to oppose any revocation of bail. But if you don't think so, you should probably make a counterintuitive request that bail be revoked or raised on the original charge.

A June 23 opinion from the Wisconsin Supreme Court held that merely because concurrent sentences are imposed at the same time, credit for time served need not be credited against both sentences.

As a result, the defendant can't get credit for his original offense, for 50 days he spent in custody after his second arrest.

In 2004, Elandis D. Johnson was arrested for a drug offense and entered a guilty plea. He posted bail after only four days in custody and was released. In 2005, while awaiting sentencing, he was arrested for a new drug offense.

Following this arrest, Johnson remained technically still free on bail in his 2004 case, but spent 50 more days in custody before being released on bail in the 2005 case. He was free on bail for 84 days before a joint sentencing on the two cases.

He received one year of initial confinement, followed by 18 months of extended supervision in his 2004 case, and a concurrent sentence of one year of initial confinement, followed by one year of extended supervision in his 2005 case.

The circuit court awarded 50 days credit against the sentence in his 2005 case, but not against the sentence in his 2004 case. After sentencing, Johnson filed a postconviction motion seeking credit for the 50 days in his 2004 case, as well.

However, the circuit court denied the request, reasoning that the 50 days in custody were not in connection with the sentence in that case.

Section 973.155(1)(a) provides: 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.

Johnson appealed, but the Court of Appeals affirmed in a published opinion. State v. Johnson, 2008 WI App 34, 307 Wis.2d 735, 746 N.W.2d 581.

The Supreme Court accepted review, but also affirmed, in an opinion by Justice David T. Prosser.

The court concluded that, under the plain language of the statute, which requires that sentence credit be given only if the time was spent in custody in connection with the facts, Johnson is not entitled to the credit...