State v. Zachary S. Friedlander
State v. Zachary S. Friedlander
Opinion of the Court
*637¶1 This is a review of an unpublished, per curiam decision of the court of appeals, State v. Zachary S. Friedlander, No. 2017AP1337-CR, unpublished slip op.,
¶2 This court is presented with two issues. First, we must determine the meaning of "in custody"
*638under
¶3 Second, we must determine whether Friedlander is entitled to sentence credit for time he spent at liberty after being mistakenly released from prison without being transferred to serve his remaining conditional jail time. We conclude that Friedlander is not entitled to sentence credit because Friedlander, who was at liberty, could not have been subject to conviction for escape under
*852I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶4 On April 15, 2016, Friedlander pled no contest to one count of felony bail jumping according to the terms of a plea agreement. According to the plea agreement, the parties jointly recommended a withheld sentence, instead placing him on probation for three years, with Friedlander serving eight months'
*639jail time as a condition of his probation, to run concurrent with Friedlander's then-existing prison sentence.
¶5 The same day that Friedlander pled no contest, the circuit court adopted the parties' joint recommendation and ordered that the conditional jail time would start immediately and run concurrently with the prison sentence Friedlander was already serving for the unrelated offense. The circuit court specified on the record that once Friedlander's prison sentence had been completed, he would still be required to serve the remainder of his conditional jail time. Additionally, the circuit court noted that because the jail time was a condition of probation, it was not a sentence. As a result, the circuit court stated that there was a question as to where the Department of Corrections ("DOC") would have Friedlander serve the remainder of his conditional jail time.
*640¶6 On September 27, 2016, Friedlander finished serving his prison sentence on the unrelated drug offense but still had 75 days of his conditional time to serve on the offense now before this court. However, instead of being transported according to the detainer to serve his remaining conditional time in jail, he was mistakenly released by the authorities from the Oshkosh Correctional Institution. Officials at the Oshkosh Correctional Institution failed to notify the Jefferson County jail of Friedlander's release and did not arrange to transfer Friedlander to the Jefferson County jail.
¶7 Friedlander met with his probation agent immediately after being released. The probation agent did not tell Friedlander that he needed to report to jail. Friedlander met with his probation agent again and was not told anything about reporting to jail. Friedlander's probation agent did not contact the circuit court to request clarification regarding his conditional jail time.
¶8 On November 11, 2016, the Jefferson County sheriff's office learned from the county's child support agency that Friedlander had been released from prison. That same day the sheriff's office contacted Friedlander's probation agent. Friedlander's probation agent then spoke with Friedlander, telling him to contact Captain Duane Scott ("Captain Scott") in the sheriff's office. Friedlander did so and reported to Captain Scott that a social worker at the *853Oshkosh Correctional Institution had told him his conditional jail time was completed prior to his release from prison. Captain Scott then contacted a DOC staff member who said that Friedlander's probation agent should have taken him to the Jefferson County jail on September 27, 2016. On November 23, 2016, Captain *641Scott wrote the circuit court summarizing these recent events and asking the circuit court whether Friedlander should report to serve his conditional time and, if so, what should be done regarding the days he was not in jail.
¶9 On December 1, 2016, the circuit court held a hearing to determine how to proceed regarding Friedlander's unserved portion of his conditional jail time. The circuit court found that Friedlander had served 165 days of the eight months, or 240 days, of conditional jail time. The circuit court determined that Friedlander had 75 days of conditional jail time remaining that he needed to serve. The circuit court then considered whether Friedlander was entitled to sentence credit for the 65 days that elapsed between Friedlander's release on September 27, 2016, and the date of the hearing. If granted sentence credit for all 65 days between September 27, 2016, and December 1, 2016, Friedlander would have only 10 days of conditional jail time remaining under the terms of his probation.
¶10 Friedlander argued that he should be entitled to sentence credit for the 65 days he was not in jail following his release from the Oshkosh Correctional Institution. Citing Riske and Dentici, Friedlander claimed that he should receive a 65-day sentence credit because he was at liberty through no fault of his own, leaving 10 days remaining on Friedlander's conditional jail term. The State made no argument regarding Friedlander's claim for a 65-day sentence credit.
¶11 After hearing testimony from a deputy at the Jefferson County jail and Friedlander, the circuit court concluded that Friedlander was not entitled to a 65-day sentence credit for the time he was not in jail *642following his release from prison on September 27, 2016. The circuit court distinguished Riske and Dentici, stating that in those cases the defendants reported to jail and were turned away due to overcrowding. The circuit court concluded that Friedlander should have reported to jail like the defendants in Riske and Dentici, or at least sought clarification from the circuit court. Since Friedlander did neither the circuit court concluded that under Riske and Dentici Friedlander was not entitled to sentence credit for any of the time he was not in jail following his release from prison. The circuit court did not reference Magnuson in its decision.
¶12 As a result, the circuit court ordered Friedlander to begin serving the remainder of his conditional jail time. On December 9, 2016, Friedlander filed a motion for stay of his confinement pending appellate review of the circuit court's sentence credit determination. On December 12, 2016, the circuit court denied Friedlander's motion to stay. Friedlander then filed a petition for leave to appeal, which the court of appeals denied on January 10, 2017.
¶13 On July 6, 2017, Friedlander filed a notice of appeal. Though he conceded that defendants normally must be "in custody" to receive sentence credit under
*854Alternatively, the State argued that Friedlander was not, in fact, at liberty through no fault of his own, *643as Friedlander knew he had time to serve but did not report to jail nor seek clarification regarding his conditional jail time.
¶14 On April 12, 2018, the court of appeals issued an unpublished, per curiam opinion. Friedlander, No. 2017AP1337-CR. The court of appeals agreed with Friedlander and reversed the circuit court, remanding the matter with directions to amend Friedlander's judgment of conviction to reflect an additional 65 days of sentence credit in the event Friedlander's probation was revoked and his sentence was imposed.
¶15 Addressing the State's arguments, the court of appeals first rejected the State's attempts to distinguish Riske and Dentici, holding that it would be unfair to Friedlander to require him to serve the 65 days since he was at liberty due to the government's mistake.
¶16 On May 14, 2018, the State filed a petition for review in this court. On July 10, 2018, we granted the petition.
II. STANDARD OF REVIEW
¶17 This case requires the interpretation of the sentence credit statute,
¶18 "[S]tare decisis concerns are paramount where a court has authoritatively interpreted a statute because the legislature remains free to alter its construction." Progressive N. Ins. Co. v. Romanshek,
*645III. ANALYSIS
A. Statutory Interpretation
¶19 Wisconsin's statutes reflect the legislature's policy determination with respect to sentence credit determinations.
*855As a result, we begin our analysis with the language of the relevant statute,
¶20 Context and structure of a statute are important to the meaning of the statute. Id., ¶46. "Therefore, statutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results." Id. Moreover, the "[s]tatutory language is read where possible to give reasonable effect to every word, in order to avoid surplusage." Id."A statute's purpose or scope may be readily apparent from its plain language or its relationship to surrounding or closely-related statutes-that is, from its context or the structure of the statute as a coherent whole." Id., ¶49.
*646¶21 "If this process of analysis yields a plain, clear statutory meaning, then there is no ambiguity, and the statute is applied according to this ascertainment of its meaning." Id., ¶46. If statutory language is unambiguous, we do not need to consult extrinsic sources of interpretation. Id."Statutory interpretation involves the ascertainment of meaning, not a search for ambiguity." Id., ¶47.
¶22 As this court discussed in Magnuson,
[t]he categories in par. (a) ... include custody of the convicted offender which is in whole or in part the result of a probation, extended supervision or parole ... placed upon the person for the same course of conduct as that resulting in the new conviction.
¶23 Thus the plain meaning of
B. Riske, Magnuson, and Dentici
¶24 While the parties agree that
1. Riske
¶25 In Riske, the court of appeals concluded that the defendant was entitled to sentence credit without even considering the sentence credit statute. There, the defendant was sentenced on April 6, 1987, to one year in jail after pleading no contest to sexual intercourse with a minor. Riske,
¶26 Following his arrest in 1988, the circuit court concluded that the defendant would have begun serving his sentence on May 1, 1987, but that the defendant did not begin serving his sentence on that date of his own doing.
¶27 The defendant appealed, claiming that his one-year sentence had completely run at the time of his 1988 arrest and that he should therefore be entitled to sentence credit.
2. Magnuson
¶29 This court was thereafter faced with a sentence credit issue in Magnuson. There, the defendant was charged with eight counts of securities fraud. Magnuson,
*651Id., ¶6. Further, the defendant had to contact bail monitoring authorities each morning, submit to urine testing, and have weekly face-to-face contact with authorities. Id., ¶7.
¶30 The defendant was released on bond on June 12, 1996, and later pled no contest to three counts of securities fraud. Id., ¶8. The defendant remained under his chosen co-signer's care until December 11, 1996, when his co-signer reported to authorities that he disapproved of the defendant's conduct. Id. The defendant was returned to jail the following day. Id.
¶31 The circuit court sentenced the defendant to eight years of imprisonment followed by seven years of probation and granted 229 days of sentence credit for time the defendant spent in jail. Id., ¶9. The defendant then filed a postconviction motion seeking sentence credit for the 183 days he stayed with his bond co-signer as a condition of his bond. Id. The circuit court denied the defendant's motion, concluding that his detention at his co-signer's home with electronic monitoring as a condition *858of bond was not "custody" for sentence credit purposes. Id.
¶32 The defendant appealed the denial of sentence credit. Id., ¶10. The court of appeals reversed the circuit court, holding that the defendant was entitled to sentence credit for the time he was under home detention with electronic monitoring. Id., ¶10. In reaching its holding, the court of appeals applied a test set forth in State v. Collett,
¶33 Citing the need for judicial economy and consistency, this court reversed the court of appeals, establishing a "bright-line" rule and abandoning the Collett test. See id., ¶¶10, 22. Unlike the court of appeals in Riske, this court began with
¶35 This court then considered whether the defendant was "in custody" under the escape statute,
¶36 Therefore, since the defendant would have been subject to a bail-jumping charge only for violating the conditions of his bond, this court concluded that he was not in danger of being charged with escape and thus was not eligible to receive sentence credit for the time he spent under home detention. Id., ¶46. Notably, this court did not address Riske nor did it espouse *655any lack-of-fault requirement like the court of appeals in Riske. This court, however, did not specifically overrule Riske.
3. Dentici
¶37 Two years after this court's decision in Magnuson, the court of appeals was again faced with a sentence credit issue in Dentici. There, on February 3, 1997, the defendant pled guilty to operating a vehicle without the owner's consent and was placed on probation. Dentici,
¶38 The court of appeals reversed the circuit court, concluding that the defendant *860was entitled to sentence credit for the 25 days elapsing between February 3 and February 28, 1997. Id., ¶13. Specifically, the court of appeals concluded that: (1) the definition of "custody" is not limited to the definition provided in
¶39 Apparently recognizing a need to square its holding with Magnuson, the court of appeals in Dentici attempted to harmonize Riske and Magnuson, claiming that "the Riske definition of custody coexists with the Magnuson definition." Id., ¶13. In the ensuing *657discussion, the court of appeals cited Magnuson for only this court's statement that
¶40 Judge Ralph Adam Fine authored a persuasive dissent to the majority's opinion in Dentici. He emphasized that " Magnuson established a bright-line rule to determine when a person is in 'custody' for sentence-credit purposes: a person is in 'custody' if he or she is 'subject to an escape charge for leaving that status.' "
¶42 Therefore, today we clarify and overrule Riske and Dentici in favor of our bright-line rule set forth in Magnuson. We disavow the Riske and Dentici adoption of a common-law rule to award sentence credit especially given the legislature's enactment of a comprehensive statutory method to address sentence credit. When determining whether a defendant is "in custody" for the purposes of sentence credit under
C. Under Magnuson, Friedlander Is Not Entitled To Sentence Credit.
¶43 Having determined the proper standard for evaluating whether a defendant is entitled to sentence credit under
¶44 Friedlander argues that despite the statute, we should award sentence credit for equitable reasons. Courts, however, should be most hesitant to adopt judicially created remedies when the legislature, the primary policymaker, has statutorily addressed the topic. Here, we defer to those policy choices. Cf. Black v. City of Milwaukee,
¶45 Under the rule we established in Magnuson and reaffirm today, Friedlander was not in custody between September 27, 2016, and December 1, 2016, and is not entitled to sentence credit. Our analysis is straightforward and consistent with Magnuson. In order to receive sentence credit under
¶46 Here, Friedlander does not contend that he was in actual custody between September 27 and December 1, 2016. Therefore, Friedlander could be entitled to sentence credit for the 65 days at issue only if he was under constructive custody within the meaning of
¶47 Friedlander's reliance on equitable principles is unpersuasive.
IV. CONCLUSION
¶48 This court is presented with two issues. First, we must determine the meaning of "in custody" under
¶49 Second, we must determine whether Friedlander is entitled to sentence credit for time he spent at liberty after being mistakenly released from prison without being transferred to serve his remaining conditional jail time. We conclude that Friedlander is not entitled to sentence credit because Friedlander, who was at liberty, could not have been subject to conviction for escape under
By the Court. -The decision of the court of appeals is reversed.
The Honorable David J. Wambach presided.
All subsequent references to the Wisconsin Statutes are to the 2015-16 version unless otherwise indicated.
At the time, Friedlander was already serving a prison sentence at the Oshkosh Correctional Institution for a prior conviction for possession with intent to manufacture or deliver heroin-a class F felony under
"Detainer" is not defined by statute, but this court has defined "detainer" as "a 'notification filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to face pending criminal charges in another jurisdiction.' " State v. Eesley,
The State now asserts that its concession in State v. Riske,
The 2015-16 version of
The 2015-16 version of
a. Actual custody of an institution, including a juvenile correctional facility, as defined in s. 938.02(10p), a secured residential care center for children and youth, as defined in s. 938.02(15g), a juvenile detention facility, as defined in s. 938.02(10r), a Type 2 residential care center for children and youth, as defined in s. 938.02(19r), a facility used for the detention of persons detained under s. 980.04(1), a facility specified in s. 980.065, or a juvenile portion of a county jail.
b. Actual custody of a peace officer or institution guard.
bm. Actual custody or authorized physical control of a correctional officer.
c. Actual custody or authorized physical control of a probationer, parolee, or person on extended supervision by the department of corrections.
e. Constructive custody of persons placed on supervised release under ch. 980.
f. Constructive custody of prisoners and juveniles subject to an order under s. 938.183, 938.34(4d), (4h), or (4m), or 938.357(4) or (5)(e) temporarily outside the institution whether for the purpose of work, school, medical care, a leave granted under s. 303.068, a temporary leave or furlough granted to a juvenile, or otherwise.
g. Custody of the sheriff of the county to which the prisoner was transferred after conviction.
h. Custody of a person subject to a confinement order under s. 973.09(4).
§ 946.42(1)(a)1.
Specifically, this court referenced
In Sevelin, which was decided before Magnuson, the circuit court granted the defendant a "furlough" to attend an inpatient treatment facility. State v. Sevelin,
For example,
Wisconsin Stat. § 946.42(1)(a)2. states as follows:
"Custody" does not include the constructive custody of a probationer, parolee, or person on extended supervision by the department of corrections or a probation, extended supervision, or parole agent or, subject to s. 938.533(3)(a), the constructive custody of a person who has been released to community supervision or aftercare supervision under ch. 938 (emphasis added).
Unfortunately, mistaken early release is somewhat common. See e.g., Monique Garcia, Gov. Pat Quinn admits mistake on early-release of prisoners, blames corrections chief, Chicago Tribune, Dec. 31, 2009, https://www.chicagotribune.com/news/ct-xpm-2009-12-31-chi-quinn-parole-program-31dec31-story.html; Kevin Johnson, Federal prison errors cause mistaken releases, USA Today, May 24, 2016, https://www.usatoday.com/story/news/nation/2016/05/24/federal-prison-errors-mistaken-releases/84851378/; Kendra Alleyne, Computer Glitch Causes Mistaken Early Release of More Than 3,000 Inmates, Campbell Law Observer, Jan. 11, 2016, http://campbelllawobserver.com/computer-glitch-causes-mistaken-early-release-of-more-than-3000-inmates/; John Guidry II, Florida Prison's Mistaken/Accidental Early Release Programs, Orlando Criminal Defense Blog, Jan. 1, 2011, https://www.orlandocriminaldefenseattorneyblog.com/florida-prisons-mistakenaccide/; Associated Press, Jail inmate mistakenly released instead of shipped to prison, The Post and Courier, Jun. 5, 2017, https://www.postandcourier.com/news/a-south-carolina-jail-inmate-was-mistakenly-released-instead-of/article_1ab5db32-494f-11e7-b226-b3c803f08d6e.html.
We recognize that after being mistakenly released, some federal and state courts have granted defendants sentence credit, but other federal and state courts have not. Some courts have awarded sentence credit based upon considerations of equity, substantive due process, estoppel, common law, or other policy. While it might be tempting to pick and choose a case from another jurisdiction to lend support for granting or not granting sentence credit, that exercise is of little value without also considering the facts and law underlying that decision. Instead of turning to other jurisdictions for guidance, we rely upon Wisconsin's comprehensive sentence credit statutes, Magnuson, and our escape statute,
As discussed previously, Friedlander's eight months of conditional jail time was a condition of probation. We acknowledge that individuals who are deemed to be in custody would nonetheless receive credit for the time in custody even if that time is served as a condition of probation.
Friedlander did not raise any arguments regarding his constitutional right to due process. Therefore, we need not consider whether Friedlander's due process rights were violated, and decline to do so.
Dissenting Opinion
¶50 I agree with Justice Ann Walsh Bradley that fundamental principles of fairness support the equitable doctrine of credit for time erroneously spent at liberty.
¶51 I do not join Justice Bradley's dissent because, in my view, the defendant is entitled to sentence credit under the rule announced in State v. Magnuson,
¶52 In Magnuson, this court held that "an offender's status constitutes custody for sentence credit purposes when the offender is subject to an escape charge for leaving that status."
*665¶53 The escape statute provides that " '[c]ustody' includes without limitation all of the following: ... h. Custody of a person subject to a confinement order under s. 973.09(4)."
¶54 Wisconsin Stat. § 973.09(4) allows a court to require as a condition of probation that the probationer be confined for a period not to exceed one year.
¶55 In the instant case, the defendant was incarcerated in the Oshkosh Correctional Institution as a result of a conviction that is not relevant to resolving the sentence credit issue presented here. In a separate criminal case, the defendant pleaded guilty to bail jumping, and the circuit court ordered that the *666defendant be confined in the Jefferson County jail for eight months as a condition of his probation. This order constitutes a confinement order under
¶57 In my view, the defendant was still "subject to a confinement order under s. 973.09(4)" upon his mistaken release.
¶58 In the instant case, the defendant was not aware that he was mistakenly released. While mistakenly released, the defendant met with his probation agent as he was required to do. The probation agent did not tell the defendant that he needed to report to jail. However, approximately six weeks after the defendant's mistaken release, the Jefferson County Sheriff's Office discovered that the defendant was mistakenly released from prison. A sergeant from the sheriff's office contacted the defendant's probation agent. The probation agent contacted the defendant, and the defendant promptly cooperated with law enforcement officials in sorting out how to proceed.
*667¶59 The defendant posits that if he had "left the state or failed to respond to inquiries from his probation agent or law enforcement concerning his court-ordered confinement, he [ ] could have been charged with escape."
¶60 I agree. Under the defendant's hypothetical scenario, fleeing the state or failing to respond to inquiries from law enforcement concerning his
¶61 Because I conclude that the defendant's status during the time period at issue constituted "custody" for sentence credit purposes, I further conclude that the defendant is entitled to sentence credit under the Magnuson rule.
¶62 Accordingly, I dissent.
The Ninth Circuit has further explained:
The least to which a prisoner is entitled is the execution of the sentence of the court to whose judgment he is duly subject. If a ministerial officer, such as a marshal, charged with the duty to execute the court's orders, fails to carry out such orders, that failure cannot be charged up against the prisoner. The prisoner is entitled to serve his time promptly if such is the judgment imposed, and he must be deemed to be serving it from the date he is ordered to serve it and is in the custody of the marshal under the commitment, if, without his fault, the marshal neglects to place him in the proper custody. Any other holding would give the marshal, a ministerial officer, power more arbitrary and capricious than any known in the law. A prisoner sentenced for one year might thus be required to wait forty under the shadow of his unserved sentence before it pleases the marshal to incarcerate him. Such authority is not even granted to courts of justice, let alone their ministerial officers. Citation of authority is hardly needed to establish so elementary a proposition.
Smith v. Swope,
See Espinoza v. Sabol,
See State v. Edwards,
Dissenting Opinion
¶63 The majority bucks an apparent trend in the law of our sister states and federal circuits that have adopted the equitable doctrine of credit for time erroneously spent at liberty. Paying little mind to the plethora of courts that have adopted the doctrine, it summarily dispatches with Friedlander's invocation of equity.
¶64 In my view, persuasive authority from other jurisdictions and fundamental fairness require a deeper examination of this topic.
¶65 When Friedlander was released from prison, he was told by words and actions that he was free to go. Relying on the information he received from Oshkosh Correctional Institution, where he had been previously incarcerated, he took the Department of Corrections at its word.
*668¶66 By rejecting the equitable doctrine of credit for time erroneously spent at liberty, the majority inequitably holds Friedlander's reliance on the State against him and allows several state players to escape accountability for their mistakes.
*866Yet, fundamental fairness appears to rest squarely with Friedlander.
¶67 Adopting the doctrine ensures a fair and equitable way to resolve an uncommon factual scenario. Additionally, consistent with case law, it holds the State to its obligation to provide a certain end date for incarceration and prevents the service of a sentence in installments.
¶68 I conclude that Friedlander should receive the benefit of the equitable doctrine of credit for time erroneously spent at liberty. This conclusion is consistent with the sense of fairness and equity embraced by a majority of the federal circuits and an abundance of state courts that have adopted the doctrine and at odds with the sense of fairness and equity tersely espoused by the majority here.
¶69 Accordingly, I respectfully dissent.
I
¶70 The record throughout this case reflects mistakes by the State and some uncertainty on the part of the court. At the outset, the circuit court was unsure as to where the Department of Corrections would have Friedlander serve the conditional jail sentence that remained after his prison sentence was complete. Majority op., ¶5. At sentencing, the circuit court indicated:
Clearly you'll be serving your sentence when you have a prison sentence and conditional jail in the prison, and that's the Court's expectation, and I doubt that the *669Department of Corrections will in any way interpret that portion any differently, but it's just a question of once your underlying case is done and if there's still some of this conditional jail time, where they'll have you serve it (emphasis added).
Thus, the circuit court left it to the Department of Corrections to resolve the unanswered question of where it would have Friedlander serve the extra conditional time.
¶71 The uncertainty was resolved when, according to Friedlander, a social worker at Oshkosh Correctional Institution informed him that his conditional jail sentence was satisfied prior to his release. Majority op., ¶8.
¶72 This resolution by the Department of Corrections was underscored when, after completing his prison sentence, Friedlander was released from Oshkosh Correctional Institution instead of being transported to the Jefferson County jail to finish any conditional jail sentence.
¶73 But why would they?
¶74 The sentencing court apparently left to the Department of Corrections the decision as to where the conditional time would be served and they apparently determined it would be served prior to his release from Oshkosh. We now learn, however, that Oshkosh's apparent determination of where Friedlander would serve the extra conditional jail time and their actions supporting that determination were all mistakes.
¶75 To compound the apparently mistaken determination and actions, once Friedlander was released, more mistakes and uncertainty appear.
*670¶76 Upon his release, Friedlander immediately met with his probation agent.
¶77 The Jefferson County Sheriff's Office eventually was concerned about Friedlander's status and contacted his probation agent, who in turn spoke with Friedlander.
¶78 Friedlander relayed to the sheriff's office what his social worker had told him about his conditional jail sentence being satisfied prior to his release.
¶79 Similarly unsure how to proceed, the circuit court held a hearing.
II
¶80 Although I agree with the majority's reliance on State v. Magnuson,
¶81 This court has stated that "confinement credit is designed to afford fairness-that a person not serve more time than that for which he is sentenced." State v. Beets,
*672¶82 In the federal courts, this principle has manifested as "a common law rule, which has been held applicable to federal sentencing, that unless interrupted by fault of the prisoner (an escape, for example)
*868a prison sentence runs continuously from the date on which the defendant surrenders to begin serving it." Dunne v. Keohane,
¶83 Such a proposition is embodied by the "doctrine of credit for time erroneously spent at liberty." Pursuant to this doctrine, a convicted person is granted "credit against his sentence for time spent at liberty due to 'simple or mere negligence on behalf of the government' and 'provided the delay in execution of sentence was through no fault [of the convicted person].' " In re Roach,
¶84 The vitality of this doctrine has been recognized by a majority of federal circuit courts and an abundance of state courts.
*673¶85 Adopting the equitable doctrine would be consistent with the trend in federal and state courts throughout the country that implicitly reject an assertion that it necessarily results in a windfall for defendants. Indeed, many federal and state courts have "moved away from a strict application of the traditional rule requiring a released prisoner to serve his full sentence no matter the circumstances of his release, and have granted an erroneously released prisoner relief based on principles of equity and fairness." Roach,
¶86 The doctrine of credit for time erroneously spent at liberty is a fair and equitable way to resolve an infrequent factual situation. It holds the State to its obligation to provide a certain end date for incarceration and prevents the service of a sentence in installments. "The government is not permitted to play cat *674and mouse with the prisoner, delaying indefinitely the expiation of his debt to society and his reintegration into the free community." Dunne,
¶87 This case presents the very "cat and mouse" scenario the equitable doctrine is designed to prevent. Mistakes and uncertainty on the part of multiple state actors-the *869Oshkosh social worker who told Friedlander his sentence was satisfied, the Oshkosh staff who failed to notify Jefferson County of his release, the probation agent who neglected to tell Friedlander to report to jail, the Jefferson County Sheriff's Office that was unsure how to handle the situation, and the circuit court that was similarly unsure how to address the scenario-resulted in the possibility of Friedlander serving a non-continuous sentence.
¶88 Such a sentence served in installments is, as the Seventh Circuit observed in Dunne, detrimental to the reintegration of prisoners back into society. See id."When courts fail to recognize the doctrine [of credit for time erroneously spent at liberty], erroneously released prisoners who have successfully rehabilitated themselves into society must continually suffer under the auspice that the government may one day require re-incarceration for the service of an unfulfilled sentence." Andrew T. Winkler, Implicit in the Concept of Erroneous Liberty: The Need to Ensure Proper Sentence Credit in the Fourth Circuit,
¶89 Additionally, despite the Department of Corrections, law enforcement, and the circuit court *675being either mistaken or unsure how to proceed, the majority opines that it is the defendant's responsibility to track his release date. In the majority's view, it is up to Friedlander to tell the State that he may have more time to serve if he is released early through no fault of his own.
¶90 That's easier said than done. Some defendants may have very complex sentences, with overlapping consecutive and concurrent periods of confinement. To expect a defendant to monitor and repeatedly correct the State's math places an untenable and unreasonable responsibility on a defendant-especially when the State indicates by words and actions that he is free.
¶91 In sum, the government, by its words and actions, told Friedlander that he was free and then took it back. Friedlander's rehabilitation and reintegration into society should not be delayed because of the government's errors. He should receive the sentence credit he seeks pursuant to equitable doctrine of credit for time erroneously spent at liberty.
¶92 For the reasons stated above, I respectfully dissent.
State v. Magnuson,
The majority appears to conflate the definition of "custody" as provided in subsection h. (i.e., subject to a confinement order under
Individuals serving jail time as a condition of their probation per
To the extent the majority relies on
Reference
- Full Case Name
- STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Zachary S. FRIEDLANDER, Defendant-Appellant.
- Cited By
- 15 cases
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- Published