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State v. Davis

Court of Appeals of Wisconsin, District I

July 12, 2017

State of Wisconsin, Plaintiff-Respondent,
v.
Larry Davis, Defendant-Appellant.

         This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See WIS. STAT. § 808.10 and RULE 809.62.

         APPEAL from a judgment and an order of the circuit court for Milwaukee County No. 2015CF1762: DENNIS FLYNN and JANET C. PROTASIEWICZ, Judges. Affirmed in part; reversed in part and cause remanded.

          Before Neubauer, C.J., Gundrum and Hagedorn, JJ.

          GUNDRUM, J.

         ¶1 Larry Davis appeals from his judgment of conviction and the denial of his postconviction motion.[1] He contends the circuit court erred in denying his request for an additional twenty-three days of sentence credit and in ordering him to maintain "absolute sobriety" as a condition of extended supervision. We agree Davis is entitled to the sentence credit he seeks and reverse on that issue, but we conclude the court did not err in ordering absolute sobriety and affirm on that issue.

         Background

         ¶2 On April 21, 2015, while on extended supervision related to a 2011 felony conviction, Davis made violent contact with the victim in this case, with whom he was ordered not to have contact as a condition of his extended supervision. Davis was arrested on that same date and charged with four criminal counts, and he remained in custody at all times relevant to this appeal. Davis' extended supervision was revoked on July 8, 2015, at least in part due to his conduct related to this case, and on July 31, 2015, he was received at Dodge Correctional Institution in order to serve his revocation sentence.

         ¶3 Davis pled to two of the four counts in this case with the other two counts being dismissed and read in. On August 26, 2015, the circuit court sentenced Davis to three years of initial confinement and three years of extended supervision on count one and nine months of jail on count two. The court ordered that the sentences be served concurrently to each other and to any other sentences being served. The court granted Davis 101 days of sentence credit on count one, but no credit on count two. Among other conditions of extended supervision, the court ordered that Davis maintain "absolute sobriety."

         ¶4 After receiving a letter from the department of corrections with regard to sentence credit, the circuit court amended the judgment of conviction so as to order that Davis receive an equal amount of sentence credit on count two as on count one. In the same order, the court also reduced the amount of credit on the two counts from 101 to 78 days because Davis was in custody for seventy-eight days between the time of his arrest and the time his extended supervision was revoked on July 8, 2015. The court reasoned that the date of revocation was the date on which Davis was reconfined on his 2011 case.

         ¶5 Davis moved for postconviction relief, arguing inter alia that the circuit court erred in reducing his sentence credit and in ordering him to maintain absolute sobriety as a condition of extended supervision. The postconviction court denied his motion with regard to these two issues, and Davis appeals.

         Discussion

         Sentence Credit

         ¶6 Davis and the State agree that the circuit court erred in denying Davis the additional twenty-three days of sentence credit he seeks. We also agree.

         ¶7 WISCONSIN STAT. § 973.155(1)(a) (2015-16)[2] 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 the sentence was imposed." Whether a defendant is entitled to sentence credit pursuant to this statute is a question of law we review independently ...


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