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04/22/83 STATE WISCONSIN v. PAUL MICHAEL WAY

April 22, 1983

STATE OF WISCONSIN, PLAINTIFF-RESPONDENT,
v.
PAUL MICHAEL WAY, DEFENDANT-APPELLANT



Appeal from an order of the Circuit Court for Walworth County: James L. Carlson, Judge.

Petition to Review Dismissed.

Scott, C.j., Voss, P.j., and Brown, J.

The opinion of the court was delivered by: Voss

Paul Michael Way appeals from an order of the circuit court for Walworth county which denied his motion for modification of his sentences. On appeal, Way raises four issues: (1) Did the trial court have jurisdiction to order that a commitment for failure to pay a fine be served consecutive to a sentence and to order that a sentence for escape be served consecutive to the commitment; (2) did the trial court have jurisdiction to order Way's commitment for failure to pay a fine be served in the Wisconsin State Prison; (3) did the trial court abuse its discretion and violate Way's right by ordering a six-month commitment for failure to pay a fine, and (4) did the trial court abuse its discretion in sentencing Way to the maximum term of imprisonment for escape. We conclude that the trial court correctly ruled that Way's sentences should not be modified. Accordingly, we affirm.

Paul Way was convicted after entering a plea of guilty to one count of battery to a peace officer, contrary to sec. 940.20(2), Stats. The offense stemmed from a Linn Township police officer arresting Way on a traffic charge and Way's resistance to the arrest. After he was convicted, Way was sentenced to six months in the county jail with Huber privileges and a fine of $500 plus $100 costs or, should he fail to pay the fine, to an additional six months in the county jail. Payment of the fine was to be made by July 1, 1981.

On June 15, 1981, however, Way absconded from Huber and was absent from the state for ten days. Way was apprehended returning to the United States from Canada and, after waiving extradition, was again incarcerated in the Walworth County Jail on or about June 25. On July 1, the fine had still not been paid. Thus, the trial court issued an order for Way to show cause why the court should not order an additional six months in the county jail. On July 2, the hearing was held. The court denied Way's request for more time to pay, imposed the additional six-month sentence under sec. 973.07, Stats., and ordered that the additional six months be served consecutive to the first six months. Way alleges that he was financially unable to pay the fine at the time of sentencing and at the time of the expiration of the stay of execution.

Way was also convicted, based on his plea of no contest, of escape, contrary to sec. 946.42(2) (d), Stats. A presentence investigation was ordered. Based on the presentence investigation report and on the recommendation of the investigator, the court, on August 29, sentenced Way to the maximum term of two years to be served consecutively to his sentence for battery. Thus, the total time to be served equals three years in the Wisconsin State Prison.

Way first argues that the sentencing court neither had jurisdiction to order that a commitment for failure to pay a fine be served consecutive to a sentence nor to order that a sentence for escape be served consecutive to the commitment. We find that the trial court did have jurisdiction and the authority to do so in both instances.

In this case, the sentencing alternative of six months in jail for nonpayment of the fine and costs was conditioned on nonpayment. In State ex rel. Pedersen v. Blessinger, 56 Wis. 2d 286, 289-90, 201 N.W.2d 778, 780-81 (1972), our supreme court indicated that a commitment for failure to pay a fine is not an alternative sentence of incarceration in lieu of the original fine nor is it another punishment for the crime for which the fine was imposed. Rather, it is a means to enforce payment of the fine and potentially a sanction for the inexcusable failure to pay.

Way maintains that because incarceration for nonpayment of a fine is technically a commitment as opposed to a sentence, sec. 973.15(2), Stats. (1979-80), does not permit consecutive terms. Section 973.15(2) reads:

(2) The court may imposed as many sentences as there are convictions and may provide that any such sentence be concurrent or that it shall commence at the expiration of any other sentence. If the convicted offender is then serving a sentence or is subject to parole revocation proceedings, the present sentence may provide that it shall commence at the expiration of the previous sentence or any sentence resulting from a revocation of parole.

Way's basis for this argument is that sec. 973.15(2) does not speak of "commitments," only "sentences." We agree with Way that a commitment is not a sentence. Therefore, sec. 973.15(2), which speaks only of concurrent and consecutive sentences, cannot be deemed as authority for an ordinary commitment consecutive to a sentence. Authority, however, does come from sec. 973.07, Stats., which was relied upon by the trial court. Section 973.07 says:

Failure to pay fine or costs. If the fine, costs, penalty assessment, applicable domestic abuse assessment payment, applicable driver improvement surcharge payment, applicable natural resources assessment or applicable natural resources restitution payment are not paid as required by the sentence, the defendant may be committed to the county jail until the fine, costs, penalty assessment, applicable domestic abuse assessment payment, applicable driver improvement surcharge payment, applicable natural resources assessment or applicable natural resources restitution payment are paid or discharged for a period fixed by the court not to exceed 6 months.

The real question, then, is whether a court has the power under sec. 973.07 to order that a commitment for failure to pay a fine be served consecutive to another term of incarceration. The answer, based on Pedersen, is that a court may do this. We find no other statutes or case law that limit the authority of a sentencing court to impose a commitment consecutive to another term of incarceration. ...


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