Michael John Gavigan (Gavigan) appeals the denial of his motion for postconviction relief in which he sought 107 days credit against his three-year sentence for robbery. Because sec. 973.155, Stats., does not entitle Gavigan to credit, we affirm the trial court's order.
Gavigan stole $1,500 from a Milwaukee bowling alley on September 15, 1982. On September 16, roughly twenty-four hours after the robbery, Gavigan led police officers on a high-speed chase and ultimately he was arrested and charged with fleeing an officer. On September 17, he was charged with the robbery of the bowling alley. Gavigan was unable to post $10,000 bail; therefore, he remained in jail. On October 24, 1982, thirty-nine days after his arrest, he pleaded guilty to the misdemeanor charge of fleeing an officer and was sentenced to six months imprisonment.
Gavigan was later tried for robbery. In a motion in limine before trial, Gavigan successfully argued that
Section 973.155, Stats., says in pertinent part: "Sentence credit. (1) (a) 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 sentence was imposed."
This section requires two determinations: First, whether the offender was "in custody;" and second, whether the custody was "in connection with the course of conduct for which sentence was imposed." It is undisputed that Gavigan was at all times "in custody." The only question is whether the 107 days were served "in connection with the course of conduct for which sentence was imposed [robbery]."
The construction of a statute is a question of law which this court may review independently.
Section 973.155, Stats., was created by ch. 353, Laws of 1977. This section established an entitlement to sentence credit that was broader than prior case law
The committee interprets sec. 973.155, Stats., liberally. The committee notes that the broad phrase "course of conduct" was used in the section instead of narrower words like "offense" or "crime." The committee also defines "in connection with" as meaning that the custody must be, at least in part, the result of the course of conduct for which sentence was imposed.
Gavigan argues that after October 24, he was in custody partially because of his failure to make bail on the robbery charge and partially because of his misdemeanor conviction; therefore, his custody was "in connection with" a course of conduct (robbery) for which sentence was imposed. He also argues that the robbery and fleeing charges are closely related enough to constitute a "course of conduct." We disagree with both arguments.
In general, an offender is not entitled to sentence credit under sec. 973.155, Stats., for custody that is being served in satisfaction of another unrelated criminal sentence.
In this case, the robbery and fleeing charges were pending at the same time for a total of thirty-nine days. The trial court credited Gavigan with those thirty-nine
Gavigan also argues that the robbery and fleeing charges constituted a "course of conduct" for which he was sentenced. He argues that the robbery and fleeing charges were closely related. This position directly conflicts with the stance taken by Gavigan in the above-mentioned motion in limine. Before the robbery trial, the defense moved to exclude evidence of Gavigan's flight from the police which might be introduced to show consciousness of guilt. The defense argued that the robbery and fleeing were unrelated incidents. The defense argued as follows: "He did not flee immediately after the commission of the crime in this case, and he did not flee after being accused of the crime that had been committed. The flight occurred 24 hours after the offense." The trial court agreed that evidence of Gavigan's flight from police should be excluded from the robbery trial.
Gavigan cannot now be heard to argue that the charges were related when he argued before trial that the charges were unrelated. The same rationale that worked for
He was not charged with fleeing in connection with his leaving the robbery scene. The fleeing charge arose from a separate and unrelated incident which occurred twenty-four hours after the robbery. Even assuming, arguendo, that Gavigan did not previously argue that the charges were unrelated, the facts indicate that his custody after October 24 was not in connection with a course of conduct for which sentence was imposed. Section 973.155, Stats., was intended to be interpreted liberally, but granting sentence credit to Gavigan for time served on an unrelated charge would result in an absurd interpretation of the section. We hold that the trial court did not err in denying Gavigan's motion for 107 days sentence credit.
By the Court.—Order affirmed.