799 N.W.2d 758
Wis.2011Background
- Lamar was originally sentenced on counts for aggravated battery as a habitual offender and misdemeanor bail jumping as a habitual offender, with the two sentences concurrent.
- Lamar later withdrew his guilty plea on Count I, resulting in vacatur of that sentence and a repleading/re-sentencing on Amended Count I and Amended Count III.
- The second sentencing ordered Amended Count I and Amended Count III to run concurrently with each other but consecutively to Count II's sentence.
- Lamar then sought 189 days of additional sentence credit for time served from September 15, 2006 to March 23, 2007, arguing § 973.04 and related statutes entitle him to credit.
- The circuit court denied this request, and the court of appeals affirmed, holding dual credit on consecutive sentences is improper under Boettcher and § 973.155, and no double jeopardy violation occurred.
- The supreme court granted review to interpret the interaction of §§ 973.04 and 973.155 and the double jeopardy implications.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to additional § 973.04 credit | Lamar argues § 973.04 requires credit for time served on the vacated sentence against the new sentence. | State/Boettcher framework limits credit on consecutive sentences; § 973.155 governs presentence custody; credit cannot be duplicative. | Lamar not entitled to the 189 days; Boettcher controls dual credit on consecutive sentences. |
| Double jeopardy implications | Failure to grant full credit for time served violates double jeopardy for the same offense. | No constitutional violation because credit adjustments do not punish twice for the same offense given sentencing structure. | Double jeopardy not violated. |
Key Cases Cited
- State v. Boettcher, 144 Wis. 2d 86 (1988) (dual credit prohibited on consecutive sentences; credit limited to one sentence)
- North Carolina v. Pearce, 395 U.S. 711 (U.S. Supreme Court, 1969) (vindictiveness concerns when imposing more severe sentences after trial)
- Ex parte Lange, 85 U.S. 163 (U.S. Supreme Court, 1873) (no punishment without full credit for time already served on the same offense)
- State v. Amos, 153 Wis. 2d 257 (Ct. App. 1989) (modification of credit does not implicate double jeopardy when not entitled to credit)
- State v. Naydihor, 2004 WI 43 (Wis. 2004) (double jeopardy analysis in sentencing credit context)