STATE v. DEMARS, 119 Wis.2d 19 (Ct.App. 1984)

349 N.W.2d 708

Court of Appeals of Wisconsin.
No. 83-1573-CR.Submitted on briefs February 28, 1984. —
Decided April 11, 1984.

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APPEAL from a judgment and an order of the circuit court for Winnebago county: THOMAS S. WILLIAMS, Judge. Modified and as modified, affirmed.

For the defendant-appellant, the cause was submitted on the briefs of Glenn L. Cushing, assistant state public defender.

For the plaintiff-respondent, the cause was submitted on the brief of Bronson C. La Follette, attorney general, and William, L. Gansner, assistant attorney general.

Before Scott, C.J., Brown, P.J., and Nettesheim, J.

NETTESHEIM, J.

Jeffrey Demars was convicted of one felony count and one misdemeanor count of issuance of a worthless check, pursuant to sec. 943.24, Stats. He was sentenced to two years’ imprisonment on the felony count and nine months concurrently on the misdemeanor count. Thereafter, Demars sought an order of the trial court crediting eighty-three days of presentence confinement against his sentence. The trial court denied the request. We affirm the order of the trial court denying credit for the period of confinement prior to the setting

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of bail. However, we modify the judgment and order of the trial court to allow credit from the date of Demars’ initial appearance, May 2, 1983, to the date of sentencing, May 18, 1983.[1] Credit of seventeen days against the sentences is therefore ordered.

Demars was initially jailed in another county (Fond du Lac) on February 9, 1983 on two counts of criminal damage to property allegedly committed in that county. On the same date, a probation hold was placed against Demars for absconding from probation.[2] A preliminary revocation hearing was held on March 10, 1983 resulting in a finding of probable cause for revocation of probation entered on March 11, 1983. These findings further determined that Demars should be held in custody pending a final hearing on the probation revocation matter.

On February 22, 1983, the district attorney for Winnebago county issued the criminal complaint in the case at bar. On February 25, 1983, a “detainer” was filed with Fond du Lac county by the Winnebago county sheriff’s department requesting that Fond du Lac county detain Demars if he should post bond and if his probation hold should be lifted.[3] It was not until May 2, 1983 that Demars made his initial appearance in Winnebago county. At that time, the Winnebago county circuit court scheduled a preliminary examination and set a $400 cash

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bail.[4] On May 18, 1983, Demars waived preliminary examination on the felony count, entered pleas of guilty to both Winnebago county charges, was adjudged guilty and sentenced. The trial court expressly reserved the question of appropriate credit until additional information was received. Thereafter, the trial court entered its order denying Demars’ sentence credit request.

The issue is whether the presentence confinement of Demars from the date of the filing of the “detainer” (February 25, 1983) to the date of sentencing (May 18, 1983) constituted “custody in connection with the course of conduct for which sentence was imposed” within the meaning of sec. 973.155(1) (a), Stats.[5]

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We must initially consider the legal effect, if any, of the “detainer” presented by the Winnebago county authorities to the Fond du Lac county authorities on February 25, 1983. No formal statutory procedures presently exist in Wisconsin governing the processing of inmates or prisoners detained in one county and charged with criminal offenses in another. Former sec. 955.22, Stats. (1967), entitled “Prompt disposition of intrastate detainers” was repealed by ch. 255, Laws of 1969.[6] No substitute or equivalent legislation has since, been enacted.

In construing a statute, the common and approved meaning of a word can be established by reference to a recognized dictionary. Kollasch v. Adamany, 104 Wis.2d 552, 563, 313 N.W.2d 47, 53 (1981). Black’s Law Dictionary[7] 347 (5th ed. 1979) defines “custody,” in part, as “the detainer of a man’s person by virtue of lawful process or authority.” Examples of lawful process or authority resulting in custody in a criminal case include arrest with or without a warrant, arrest upon a capias or bench warrant, unsatisfied bail requirements resulting in confinement, sentence to confinement, temporary detention pursuant to sec. 968.24, Stats., probation or parole holds, and periods of confinement imposed as a condition of probation. All of the foregoing are either expressly or impliedly authorized by law.

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A “detainer” is not executed against a person, nor, standing alone, can it legally authorize custody. Its function, even in those circumstances where it is statutorily recognized, is to give notice to an institution where a subject is held that his custody is desired elsewhere and, also., to give notice to the subject of the other charges so that he might demand a speedy trial.[8] The term “detainer” carries no custodial mandate in our jurisprudence.

Demars cites People v. Face, 276 N.W.2d 916 (Mich. App. 1979), in support of his credit claim in this case. Much of the Face decision, however, argues against Demars’ position, and the allowance of the credit in Face
is premised on grounds not present or asserted in this case. Although Face was charged in two separate, counties during October 1976 with negotiating bad checks, it was not until she had completed her sentence on one of the charges that she was arrested, convicted and further sentenced on the other. The Michigan supreme court, while granting the credit request on other grounds, refused to credit the confinement time on the first sentence against the second sentence on the claim that the former sufficiently related to the course of conduct in the latter. Id. at 918. The court further observed, “[w]e also are not persuaded by defendant’s argument that a `hold’ is equivalent to an arrest.” Id.[9] Our reading o Face does not support Demars’ claim in the instant case.

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Demars also cites Ex parte Spates, 521 S.W.2d 265
(Tex.Cr.App. 1975), in support of his claim for credit Spates, a telegram was sent from the non-custodial county to the custodial county requesting that Spates be held for probation revocation proceedings. Noting that the telegram was “followed up with a formal capias,” th Spates court concluded that the defendant was entitled to credit on the “hold.” Id. at 266. Of significance is the triggering of custody by virtue of the legal process and authority of the capias. To the same effect are the cases of People ex rel. Middleton v. Zelker, 42 A.D.2d 998, 348 N.Y.S.2d 576 (N.Y.App. Div. 1973), aff’d, 325 N.E.2d 871 (N.Y. 1975), and Kalamis v. Smith, 366 N.E.2d 781
(N.Y. 1977), both cited by Demars in his brief. In Middleton, because a warrant was issued and filed against the defendant by the authorities of the non-custodial county in the custodial county, credit was allowed. I Kalamis,[10] the defendant spent simultaneous time in custody on charges from separate jurisdictions as a result of the inability to meet bail on one case and the exoneration of bail coupled with the filing of a warrant on the other. Because the defendant’s custody was related to both charges, the Kalamis court granted the credit request.

A close analysis of all the cases cited by Demars shows the presence of a legal event, process or authority which

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occasioned, at least in part, the custody of the defendant relative to the charge for which he was ultimately sentenced. We conclude that “custody” as used in sec. 973.155, Stats., must necessarily result from the occurrence of a legal event, process, or authority which occasions, or is related to, confinement on the charge for which the defendant is ultimately sentenced.

The communication by the Winnebago county authorities to the Fond du Lac county authorities did not occasion the custody of Demars on the Winnebago county charges in any sense. Demars was not arrested based upon the communication, nor, based on the record before us, was bail set or any bail information conveyed.

Such an event occasioning custody did not occur in the instant case until Demars’ custody was surrendered to the Winnebago county authorities pursuant to the writ of habeas corpus ad testificandum, followed by his initial appearance before the trial court and the setting of cash bail, all occurring on May 2, 1983. This marked the first moment when Demars’ custody could legally be premised on the Winnebago county charges. Therefore, we conclude that Demars’ custody from May 2, 1983 until his sentencing on May 18, 1983 related to the “course of conduct for which sentence was imposed” within the meaning of sec. 973.155, Stats.

While Demars did not object to the setting of cash bail by the trial court and indicated it was largely a moot question in light of the Fond du Lac county proceedings, we do not deem this a sufficient basis upon which to deviate from the holding recited above. Irrespective of the ability or desire to meet bail requirements, custody nonetheless attaches until such conditions are met. Section 973.155, Stats., contemplates custody without consideration as to whether the subject chooses to meet the conditions which would obtain his release or takes efforts

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to that end. This not only represents, in our judgment, a correct interpretation of the statute but also presents a rule to the trial courts which is clear-cut and easy to apply. Computation of sentence credits sometimes presents complex, conflicting and confusing issues to a sentencing court. The rule recited herein, which links presentence custody of the offender with a legal event or process which triggers such custody, should serve to simplify the computation of credit process.

We affirm the order of the trial court denying presentence credit from the date of February 25, 1983 to May 2, 1983. We modify the order of the trial court to allow credit from the date of May 2, 1983 to May 18, 1983 for the reasons cited.

By the Court. — Judgment and order modified and as modified, affirmed.