2019 WI 22 

SUPREME COURT OF WISCONSIN

CASE NO.: 2017AP1337-CR 

COMPLETE TITLE: State of Wisconsin, 

 Plaintiff-Respondent-Petitioner, 

 v. 

Zachary S. Friedlander, 

 Defendant-Appellant. 

REVIEW OF DECISION OF THE COURT OF APPEALS 

Reported at 382 Wis. 2d 271,915 N.W.2d 730 

(2018 – unpublished) 

OPINION FILED: March 12, 2019 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: December 11, 2018 

SOURCE OF APPEAL: 

 COURT: Circuit 

 COUNTY: Jefferson 

 JUDGE: David Wambach 

 

JUSTICES: 

 CONCURRED: 

 DISSENTED: ABRAHAMSON, J. dissents (opinion filed). 

A.W. BRADLEY, J. dissents (opinion filed). 

 NOT PARTICIPATING: 

 

ATTORNEYS: 

For the plaintiff-respondent-petitioner, there were briefs 

filed by Jacob J. Wittwer, assistant attorney general, with whom 

on the brief is Brad D. Schimel, attorney general. There was an 

oral argument by Jacob J. Wittwer. 

For the defendant-appellant, there was a brief filed by 

Mark R. Thompson, assistant state public defender, with whom on 

the brief is Jeremy A. Newman, assistant state public defender. 

There was an oral argument by Mark R. Thompson. 
2019 WI 22

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2017AP1337-CR 

(L.C. No. 2015CF326) 

STATE OF WISCONSIN : IN SUPREME COURT 

State of Wisconsin,

 Plaintiff-Respondent-Petitioner, 

 v. 

Zachary S. Friedlander, 

 Defendant-Appellant. 

FILED 

MAR 12, 2019 

Sheila T. Reiff 

Clerk of Supreme Court 

REVIEW of a decision of the Court of Appeals. Reversed. 

¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of an 

unpublished, per curiam decision of the court of appeals, State 

v. Zachary S. Friedlander, No. 2017AP1337-CR, unpublished slip 

op. (Wis. Ct. App. Apr. 12, 2018) (per curiam), reversing the 

Jefferson County circuit court's order. The circuit court order 

denied Zachary S. Friedlander ("Friedlander") sentence credit 

for time that he spent at liberty after being mistakenly 

released from prison without being transferred, pursuant to a 

detainer, to serve remaining conditional jail time.1 The court 

 

1 The Honorable David J. Wambach presided. 
No. 2017AP1337-CR 

2 

of appeals remanded this case to the circuit court with 

directions to amend Friedlander's judgment of conviction to 

reflect the sentence credit that Friedlander requested. We 

reverse the court of appeals. 

¶2 This court is presented with two issues. First, we 

must determine the meaning of "in custody" under Wis. Stat. 

§ 973.155 (2015–16).2 In doing so, we consider whether the court 

of appeals' decisions in State v. Riske, 152 Wis. 2d 260, 448 

N.W.2d 260 (Ct. App. 1989), and State v. Dentici, 2002 WI App 

77, 251 Wis. 2d 436, 643 N.W.2d 180, are in harmony with this 

court's decision in State v. Magnuson, 2000 WI 19, 233 

Wis. 2d 40, 606 N.W.2d 536. We conclude that for the purpose of 

receiving sentence credit under § 973.155, a defendant is "in 

custody" whenever the defendant is subject to an escape charge 

under Wis. Stat. § 946.42, or another statute which expressly 

provides for an escape charge, as this court held in Magnuson. 

In doing so, we overrule the court of appeals' decisions in 

Riske and Dentici. 

¶3 Second, we must determine whether Friedlander is 

entitled to sentence credit for time he spent at liberty after 

being mistakenly released from prison without being transferred 

to serve his remaining conditional jail time. We conclude that 

Friedlander is not entitled to sentence credit because 

Friedlander, who was at liberty, could not have been subject to 

 

2 All subsequent references to the Wisconsin Statutes are to 

the 2015–16 version unless otherwise indicated. 
No. 2017AP1337-CR 

3 

conviction for escape under Wis. Stat. § 946.42. Thus, we 

reverse the court of appeals. 

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE 

¶4 On April 15, 2016, Friedlander pled no contest to one 

count of felony bail jumping according to the terms of a plea 

agreement. According to the plea agreement, the parties jointly 

recommended a withheld sentence, instead placing him on 

probation for three years, with Friedlander serving eight 

months' jail time as a condition of his probation, to run 

concurrent with Friedlander's then-existing prison sentence.3 

Consequently, most of the eight months of conditional time would 

be served while he was in prison. However, at the time of 

sentencing, a detainer4 was placed on Friedlander so that if 

released from prison, he would be transferred to jail to serve 

the remainder of his conditional time. 

¶5 The same day that Friedlander pled no contest, the 

circuit court adopted the parties' joint recommendation and 

ordered that the conditional jail time would start immediately 

 

3 At the time, Friedlander was already serving a prison 

sentence at the Oshkosh Correctional Institution for a prior 

conviction for possession with intent to manufacture or deliver 

heroin——a class F felony under Wis. Stat. § 961.41(1)(d)1. See 

State v. Friedlander, Jefferson County case number 2014CF212. 

4 "Detainer" is not defined by statute, but this court has 

defined "detainer" as "a 'notification filed with the 

institution in which a prisoner is serving a sentence, advising 

that he is wanted to face pending criminal charges in another 

jurisdiction.'" State v. Eesley, 225 Wis. 2d 248, 257–58, 591 

N.W.2d 846 (1999) (citing United States v. Mauro, 436 U.S. 340, 

359 (1978)). 
No. 2017AP1337-CR 

4 

and run concurrently with the prison sentence Friedlander was 

already serving for the unrelated offense. The circuit court 

specified on the record that once Friedlander's prison sentence 

had been completed, he would still be required to serve the 

remainder of his conditional jail time. Additionally, the 

circuit court noted that because the jail time was a condition 

of probation, it was not a sentence. As a result, the circuit 

court stated that there was a question as to where the 

Department of Corrections ("DOC") would have Friedlander serve 

the remainder of his conditional jail time. 

¶6 On September 27, 2016, Friedlander finished serving 

his prison sentence on the unrelated drug offense but still had 

75 days of his conditional time to serve on the offense now 

before this court. However, instead of being transported 

according to the detainer to serve his remaining conditional 

time in jail, he was mistakenly released by the authorities from 

the Oshkosh Correctional Institution. Officials at the Oshkosh 

Correctional Institution failed to notify the Jefferson County 

jail of Friedlander's release and did not arrange to transfer 

Friedlander to the Jefferson County jail. 

¶7 Friedlander met with his probation agent immediately 

after being released. The probation agent did not tell 

Friedlander that he needed to report to jail. Friedlander met 

with his probation agent again and was not told anything about 

reporting to jail. Friedlander's probation agent did not 

contact the circuit court to request clarification regarding his 

conditional jail time. 
No. 2017AP1337-CR 

5 

¶8 On November 11, 2016, the Jefferson County sheriff's 

office learned from the county's child support agency that 

Friedlander had been released from prison. That same day the 

sheriff's office contacted Friedlander's probation agent. 

Friedlander's probation agent then spoke with Friedlander, 

telling him to contact Captain Duane Scott ("Captain Scott") in 

the sheriff's office. Friedlander did so and reported to 

Captain Scott that a social worker at the Oshkosh Correctional 

Institution had told him his conditional jail time was completed 

prior to his release from prison. Captain Scott then contacted 

a DOC staff member who said that Friedlander's probation agent 

should have taken him to the Jefferson County jail on 

September 27, 2016. On November 23, 2016, Captain Scott wrote 

the circuit court summarizing these recent events and asking the 

circuit court whether Friedlander should report to serve his 

conditional time and, if so, what should be done regarding the 

days he was not in jail. 

¶9 On December 1, 2016, the circuit court held a hearing 

to determine how to proceed regarding Friedlander's unserved 

portion of his conditional jail time. The circuit court found 

that Friedlander had served 165 days of the eight months, or 240 

days, of conditional jail time. The circuit court determined 

that Friedlander had 75 days of conditional jail time remaining 

that he needed to serve. The circuit court then considered 

whether Friedlander was entitled to sentence credit for the 65 

days that elapsed between Friedlander's release on September 27, 

2016, and the date of the hearing. If granted sentence credit 
No. 2017AP1337-CR 

6 

for all 65 days between September 27, 2016, and December 1, 

2016, Friedlander would have only 10 days of conditional jail 

time remaining under the terms of his probation. 

¶10 Friedlander argued that he should be entitled to 

sentence credit for the 65 days he was not in jail following his 

release from the Oshkosh Correctional Institution. Citing Riske 

and Dentici, Friedlander claimed that he should receive a 65-day 

sentence credit because he was at liberty through no fault of 

his own, leaving 10 days remaining on Friedlander's conditional 

jail term. The State made no argument regarding Friedlander's 

claim for a 65-day sentence credit. 

¶11 After hearing testimony from a deputy at the Jefferson 

County jail and Friedlander, the circuit court concluded that 

Friedlander was not entitled to a 65-day sentence credit for the 

time he was not in jail following his release from prison on 

September 27, 2016. The circuit court distinguished Riske and 

Dentici, stating that in those cases the defendants reported to 

jail and were turned away due to overcrowding. The circuit 

court concluded that Friedlander should have reported to jail 

like the defendants in Riske and Dentici, or at least sought 

clarification from the circuit court. Since Friedlander did 

neither the circuit court concluded that under Riske and Dentici 

Friedlander was not entitled to sentence credit for any of the 

time he was not in jail following his release from prison. The 

circuit court did not reference Magnuson in its decision. 

¶12 As a result, the circuit court ordered Friedlander to 

begin serving the remainder of his conditional jail time. On 
No. 2017AP1337-CR 

7 

December 9, 2016, Friedlander filed a motion for stay of his 

confinement pending appellate review of the circuit court's 

sentence credit determination. On December 12, 2016, the 

circuit court denied Friedlander's motion to stay. Friedlander 

then filed a petition for leave to appeal, which the court of 

appeals denied on January 10, 2017. 

¶13 On July 6, 2017, Friedlander filed a notice of appeal. 

Though he conceded that defendants normally must be "in custody" 

to receive sentence credit under Wis. Stat. § 973.155, he argued 

that under Riske and Dentici, time spent at liberty satisfies 

the "in custody" requirement because Friedlander was released 

from custody due to an administrative error and thus through no 

fault of his own. The State argued that Friedlander was not "in 

custody" under § 973.155 and pursuant to this court's decision 

in Magnuson. The State further asserted that Riske and Dentici 

did not apply. Alternatively, the State argued that Friedlander 

was not, in fact, at liberty through no fault of his own, as 

Friedlander knew he had time to serve but did not report to jail 

nor seek clarification regarding his conditional jail time. 

¶14 On April 12, 2018, the court of appeals issued an 

unpublished, per curiam opinion. Friedlander, No. 2017AP1337-

CR. The court of appeals agreed with Friedlander and reversed 

the circuit court, remanding the matter with directions to amend 

Friedlander's judgment of conviction to reflect an additional 65 

days of sentence credit in the event Friedlander's probation was 

revoked and his sentence was imposed. Id., ¶1. The court of 

appeals relied on Riske and Dentici, not Magnuson, and reasoned 
No. 2017AP1337-CR 

8 

that "Friedlander was at liberty between the date that he was 

released from prison and the date he was remanded to jail, not 

through any fault of his own but through the fault of government 

officials." Id., ¶19. Therefore, the court of appeals 

concluded that Friedlander was entitled to 65 days of sentence 

credit. Id. 

¶15 Addressing the State's arguments, the court of appeals 

first rejected the State's attempts to distinguish Riske and 

Dentici, holding that it would be unfair to Friedlander to 

require him to serve the 65 days since he was at liberty due to 

the government's mistake. Id., ¶¶21–24. Second, the court of 

appeals asserted that the State selectively quoted Magnuson to 

suggest that the escape statute, Wis. Stat. § 946.42(1)(a), is 

the exclusive means to determine whether a defendant is in 

custody. Id., ¶¶25–26. The court of appeals also distinguished 

Magnuson because there was no fault-related issue raised in 

Magnuson. Id., ¶27. Thus, the court of appeals relied on its 

decisions in Riske and Dentici, resolving that they existed in 

harmony with Magnuson, to conclude that Friedlander was entitled 

to 65 days of sentence credit. See id., ¶¶26–28. 

¶16 On May 14, 2018, the State filed a petition for review 

in this court. On July 10, 2018, we granted the petition. 

II. STANDARD OF REVIEW 

¶17 This case requires the interpretation of the sentence 

credit statute, Wis. Stat. § 973.155, to determine the meaning 

of "in custody" for sentence credit purposes. "The 

interpretation and application of a statute presents questions 
No. 2017AP1337-CR 

9 

of law that this court reviews de novo while benefitting from 

the analyses of the court of appeals and circuit court." State 

v. Alger, 2015 WI 3, ¶21, 360 Wis. 2d 193, 858 N.W.2d 346 

(citing State v. Ziegler, 2012 WI 73, ¶37, 342 Wis. 2d 256, 816 

N.W.2d 238). Therefore, because there are no disputed facts in 

this case, we review de novo when a defendant is "in custody" 

within the context of a sentence credit determination. 

¶18 "[S]tare decisis concerns are paramount where a court 

has authoritatively interpreted a statute because the 

legislature remains free to alter its construction." 

Progressive N. Ins. Co. v. Romanshek, 2005 WI 67, ¶45, 281 

Wis. 2d 300, 697 N.W.2d 417 (citing Hilton v. S.C. Pub. Rys. 

Comm'n, 502 U.S. 197, 202 (1991)). "When a party asks this 

court to overturn a prior interpretation of a statute, it is his 

'burden . . . to show not only that [the decision] was mistaken 

but also that it was objectively wrong, so that the court has a 

compelling reason to overrule it.'" Id. 

III. ANALYSIS 

A. Statutory Interpretation 

¶19 Wisconsin's statutes reflect the legislature's policy 

determination with respect to sentence credit determinations. 

As a result, we begin our analysis with the language of the 

relevant statute, Wis. Stat. § 973.155. See State ex rel. Kalal 

v. Circuit Court for Dane Cty., 2004 WI 58, ¶45, 271 

Wis. 2d 633, 681 N.W.2d 110. "[T]he purpose of statutory 

interpretation is to determine what the statute means so that it 

may be given its full, proper, and intended effect." Id., ¶44. 
No. 2017AP1337-CR 

10 

If the meaning of the statute is plain, we ordinarily stop the 

inquiry and give the language its "common, ordinary, and 

accepted meaning, except that technical or specially-defined 

words or phrases are given their technical or special 

definitional meaning." Id., ¶45. 

¶20 Context and structure of a statute are important to 

the meaning of the statute. Id., ¶46. "Therefore, statutory 

language is interpreted in the context in which it is used; not 

in isolation but as part of a whole; in relation to the language 

of surrounding or closely-related statutes; and reasonably, to 

avoid absurd or unreasonable results." Id. Moreover, the 

"[s]tatutory language is read where possible to give reasonable 

effect to every word, in order to avoid surplusage." Id. "A 

statute's purpose or scope may be readily apparent from its 

plain language or its relationship to surrounding or closelyrelated statutes——that is, from its context or the structure of 

the statute as a coherent whole." Id., ¶49. 

¶21 "If this process of analysis yields a plain, clear 

statutory meaning, then there is no ambiguity, and the statute 

is applied according to this ascertainment of its meaning." 

Id., ¶46. If statutory language is unambiguous, we do not need 

to consult extrinsic sources of interpretation. Id. "Statutory 

interpretation involves the ascertainment of meaning, not a 

search for ambiguity." Id., ¶47. 

¶22 As this court discussed in Magnuson, Wis. Stat. 

§ 973.155 governs when a defendant is entitled to receive 

sentence credit. Magnuson, 233 Wis. 2d 40, ¶12. Under Wis. 
No. 2017AP1337-CR 

11 

Stat. § 973.155, "[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." § 973.155(1)(a). The statute defines 

"days spent in custody" as "confinement related to an offense 

for which the offender is ultimately sentenced, or for any other 

sentence arising out of the same course of conduct." Id. 

Additionally, under § 973.155(1)(a), confinement occurs: (1) 

"[w]hile the offender is awaiting trial"; (2) "[w]hile the 

offender is being tried"; and (3) "[w]hile the offender is 

awaiting imposition of sentence after trial." 

§ 973.155(1)(a)1.-3. Under § 973.155(1)(b), 

[t]he categories in par. (a) . . . include custody of 

the convicted offender which is in whole or in part 

the result of a probation, extended supervision or 

parole . . . placed upon the person for the same 

course of conduct as that resulting in the new 

conviction. 

¶23 Thus the plain meaning of Wis. Stat. § 973.155 

reflects the legislative determination that for sentence credit 

to be awarded: (1) the defendant must show that the defendant 

was "in custody"; and (2) the defendant must show that "the 

custody 'was in connection with the course of conduct for which 

the sentence was imposed.'" Wis. Stat. § 973.155(1)(a); see 

also State v. Johnson, 2007 WI 107, ¶31, 304 Wis. 2d 318, 735 

N.W.2d 505 (quoting State v. Gavigan, 122 Wis. 2d 389, 391, 362 

N.W.2d 162 (Ct. App. 1984)). Notably, the term "in custody" is 

not defined anywhere in the statutes. The parties dispute only 

whether Friedlander was actually "in custody" for the purposes 
No. 2017AP1337-CR 

12 

of the sentence credit between September 27, 2016, and 

December 1, 2016. They do not debate whether, if Friedlander 

was "in custody," it was in connection with the course of 

conduct for which any sentence was imposed. We therefore turn 

to our prior case law to determine the meaning of "in custody" 

for sentence credit purposes. If Friedlander was not "in 

custody" he is not statutorily due sentence credit. 

B. Riske, Magnuson, and Dentici 

¶24 While the parties agree that Wis. Stat. § 973.155 

controls, they disagree as to when a defendant is "in custody" 

such that the defendant should receive sentence credit. The 

State argues that this court's holding in Magnuson should 

control, meaning that a defendant is "in custody" for sentence 

credit purposes whenever the defendant would be subject to an 

escape charge. The State thus urges this court to overrule the 

court of appeals' decisions in Riske and Dentici. Friedlander 

claims that Riske, Dentici, and Magnuson all coexist 

harmoniously such that Riske and Dentici should not be 

overruled. Accordingly, Friedlander claims that a defendant is 

entitled to sentence credit because the defendant "could have 

been charged with escape had they intentionally escaped from 

their time spent at liberty from a court's confinement order 

through no fault of their own." We agree with the State, and in 

the interest of providing clarity, overrule Riske, decided 

before, and Dentici, decided after, Magnuson. 
No. 2017AP1337-CR 

13 

1. Riske 

¶25 In Riske, the court of appeals concluded that the 

defendant was entitled to sentence credit without even 

considering the sentence credit statute. There, the defendant 

was sentenced on April 6, 1987, to one year in jail after 

pleading no contest to sexual intercourse with a minor. Riske, 

152 Wis. 2d at 262. The defendant surrendered to the county 

jail the same day he was sentenced, but the jailer told the 

defendant that the jail was full. Id. Therefore, the jailer 

told the defendant to return on May 1, 1987. Id. The defendant 

failed to report back to the county jail on May 1, 1987, and 

remained at large until April 14, 1988, when the circuit court 

issued an execution for the defendant's arrest. Id. While the 

defendant remained at large, he lived and worked in the 

community, and made no attempt to hide. Id. 

¶26 Following his arrest in 1988, the circuit court 

concluded that the defendant would have begun serving his 

sentence on May 1, 1987, but that the defendant did not begin 

serving his sentence on that date of his own doing. Id. 

Therefore, the circuit court held that the defendant was not 

entitled to sentence credit for the time he was not in jail on 

and after May 1, 1987. See id. 

¶27 The defendant appealed, claiming that his one-year 

sentence had completely run at the time of his 1988 arrest and 

that he should therefore be entitled to sentence credit. Id. at 

263. The State conceded that the defendant should be given 

sentence credit for the time he was out of jail between April 6 
No. 2017AP1337-CR 

14 

and May 1, 1987, as the defendant reported to the jail and was 

turned away because the jail was full.5 Id. However, the State 

argued that the defendant "escaped" by failing to return to the 

county jail on May 1, 1987. Id. at 265. Citing Wis. Stat. 

§ 973.15(7) (1987-88), the State asserted that the defendant was 

not entitled to sentence credit for any time the defendant was 

at large on or after May 1, 1987.6 Id. 

¶28 The court of appeals reversed the circuit court in 

part and remanded with directions to give the defendant sentence 

credit for the time he was at large between April 6 and May 1, 

1987. Id. Relying on a decision issued by the United States 

Court of Appeals for the Tenth Circuit nearly 60 years prior, 

the court of appeals reasoned that "[s]entences are continuous" 

in nature, unless they are "interrupted by escape, violation of 

parole, or some fault of the prisoner." Id. at 264. The court 

of appeals then stated, "'[W]here a prisoner is discharged from 

a penal institution, without any contributing fault on his part, 

and without violation of conditions of parole, . . . his 

sentence continues to run while he is at liberty.'" Id. 

(quoting White v. Pearlman, 42 F.2d 788, 789 (10th Cir. 1930)). 

 

5 The State now asserts that its concession in State v. 

Riske, 152 Wis. 2d 260, 448 N.W.2d 260 (Ct. App. 1989), was made 

in error. 

6 The 2015–16 version of Wis. Stat. § 973.15(7), which is 

identical to the 1987–88 version the court of appeals cited in 

Riske, states, "If a convicted offender escapes, the time during 

which he or she is unlawfully at large after escape shall not be 

computed as service of the sentence." 
No. 2017AP1337-CR 

15 

As additional support, the court of appeals noted a decision 

issued by this court in 1884, along with an Attorney General 

Opinion issued in 1925. Id. at 264–65 (citing In re Crow: 

Habeas Corpus, 60 Wis. 349, 370, 19 N.W. 713 (1884); 14 Op. 

Att'y Gen. 512 (1925)). The court of appeals then refused to 

determine whether the defendant "escaped," instead relying on 

what it described as the "broader principle" codified by Wis. 

Stat. § 973.15(7): "that a person's sentence for a crime will 

be credited for the time he was at liberty through no fault of 

the person." Riske, 152 Wis. 2d at 265. At no point did the 

court of appeals reference or discuss Wis. Stat. § 973.155. 

2. Magnuson 

¶29 This court was thereafter faced with a sentence credit 

issue in Magnuson. There, the defendant was charged with eight 

counts of securities fraud. Magnuson, 233 Wis. 2d 40, ¶2. The 

circuit court set bail at $12,000 per count for a total of 

$96,000. Id. The defendant was unable to post bail and 

remained in jail. Id. As trial preparation ensued, the 

defendant moved for bail modification and reduction. Id., ¶3. 

The circuit court granted the motion and modified bail to a 

$10,000 signature bond, requiring that others co-sign the bond. 

Id., ¶4. As part of the bond, the circuit court required the 

defendant to reside with one of the co-signers of the bond. Id. 

Additionally, the circuit court imposed a nightly curfew on the 

defendant, confining the defendant to his chosen co-signer's 

residence between 7:00 p.m. and 7:00 a.m. Id., ¶5. The circuit 

court subsequently modified the bond to slightly reduce the 
No. 2017AP1337-CR 

16 

daily period of confinement to allow the defendant to 

participate in substance abuse counseling and attend church 

activities. Id. The defendant was formally supervised by a 

bail monitoring program and was forced to wear an electronic 

monitoring bracelet. Id., ¶6. Further, the defendant had to 

contact bail monitoring authorities each morning, submit to 

urine testing, and have weekly face-to-face contact with 

authorities. Id., ¶7. 

¶30 The defendant was released on bond on June 12, 1996, 

and later pled no contest to three counts of securities fraud. 

Id., ¶8. The defendant remained under his chosen co-signer's 

care until December 11, 1996, when his co-signer reported to 

authorities that he disapproved of the defendant's conduct. Id. 

The defendant was returned to jail the following day. Id. 

¶31 The circuit court sentenced the defendant to eight 

years of imprisonment followed by seven years of probation and 

granted 229 days of sentence credit for time the defendant spent 

in jail. Id., ¶9. The defendant then filed a postconviction 

motion seeking sentence credit for the 183 days he stayed with 

his bond co-signer as a condition of his bond. Id. The circuit 

court denied the defendant's motion, concluding that his 

detention at his co-signer's home with electronic monitoring as 

a condition of bond was not "custody" for sentence credit 

purposes. Id. 

¶32 The defendant appealed the denial of sentence credit. 

Id., ¶10. The court of appeals reversed the circuit court, 

holding that the defendant was entitled to sentence credit for 
No. 2017AP1337-CR 

17 

the time he was under home detention with electronic monitoring. 

Id., ¶10. In reaching its holding, the court of appeals applied 

a test set forth in State v. Collett, 207 Wis. 2d 319, 558 

N.W.2d 642 (Ct. App. 1996), where the court of appeals adopted a 

case-by-case analysis for determining whether a defendant was in 

custody for sentence credit purposes. Magnuson, 233 Wis. 2d 40, 

¶10. Under the Collett test, the court of appeals concluded 

that the bond conditions were restrictive enough such that they 

were the "functional equivalent of confinement." Id. 

Therefore, the court of appeals concluded that the defendant was 

entitled to sentence credit for the time he was required to stay 

at his co-signer's residence. See id. 

¶33 Citing the need for judicial economy and consistency, 

this court reversed the court of appeals, establishing a 

"bright-line" rule and abandoning the Collett test. See id., 

¶¶10, 22. Unlike the court of appeals in Riske, this court 

began with Wis. Stat. § 973.155, noting that the plain language 

of the statute did not expressly define custody. Magnuson, 233 

Wis. 2d 40, ¶13. However, we noted that "numerous cases have 

interpreted the sentence credit statute and concluded that the 

plain meaning of custody under the statute corresponds to the 

definition of custody contained in the escape statute, Wis. 

Stat. § 946.42." Id. Therefore, we held "that for sentence 

credit purposes an offender's status constitutes custody 

whenever the offender is subject to an escape charge for leaving 
No. 2017AP1337-CR 

18 

that status," referencing § 946.42(1)(a).7 Id., ¶¶25–26. 

However, this court did not restrict the inquiry to the 

 

7 The 2015–16 version of Wis. Stat. § 946.42, which is 

substantially similar to the version this court considered in 

State v. Magnuson, 2000 WI 19, 233 Wis. 2d 40, 606 N.W.2d 536, 

states that "custody" includes without limitation all of the 

following: 

a. Actual custody of an institution, including a 

juvenile correctional facility, as defined in 

s. 938.02(10p), a secured residential care center for 

children and youth, as defined in s. 938.02(15g), a 

juvenile detention facility, as defined in 

s. 938.02(10r), a Type 2 residential care center for 

children and youth, as defined in s. 938.02(19r), a 

facility used for the detention of persons detained 

under s. 980.04(1), a facility specified in 

s. 980.065, or a juvenile portion of a county jail. 

b. Actual custody of a peace officer or 

institution guard. 

bm. Actual custody or authorized physical 

control of a correctional officer. 

c. Actual custody or authorized physical control 

of a probationer, parolee, or person on extended 

supervision by the department of corrections. 

e. Constructive custody of persons placed on 

supervised release under ch. 980. 

f. Constructive custody of prisoners and 

juveniles subject to an order under s. 938.183, 

938.34(4d), (4h), or (4m), or 938.357(4) or (5)(e) 

temporarily outside the institution whether for the 

purpose of work, school, medical care, a leave granted 

under s. 303.068, a temporary leave or furlough 

granted to a juvenile, or otherwise. 

g. Custody of the sheriff of the county to which 

the prisoner was transferred after conviction. 

(continued) 
No. 2017AP1337-CR 

19 

definition of "custody" contained in § 946.42(1)(a), emphasizing 

the need to read statutes in pari materia and referring to three 

statutes in which the legislature "classified certain situations 

as restrictive and custodial by attaching escape charges for an 

unauthorized departure from those situations."8 Id. 

¶34 Applying its new bright-line rule in Magnuson, this 

court held that the defendant was not entitled to sentence 

credit for the time he was on electronically-monitored home 

detention as a condition of his bond release. Id., ¶32. 

Specifically, we concluded that the release conditions of the 

defendant's bond did not subject the defendant to an escape 

charge under any pertinent statute. Id. This court further 

concluded that the defendant was not part of a program that 

included statutorily-proscribed escape charges for certain 

violations. Id., ¶¶33–36. Additionally, this court stated that 

simply having bond conditions similar to requirements under a 

confinement or treatment program did not render the defendant a 

participant within any such program for sentence credit 

 

h. Custody of a person subject to a confinement 

order under s. 973.09(4). 

§ 946.42(1)(a)1. 

8 Specifically, this court referenced Wis. Stat. §§ 301.046 

("Community residential confinement."), 301.048 ("Intensive 

sanctions program."), and 302.425 ("Home detention programs."). 

Magnuson, 233 Wis. 2d 40, ¶¶28–30. All three statutes expressly 

provide that unauthorized flight from or failure to comply with 

the programs constitutes an escape. See id. 
No. 2017AP1337-CR 

20 

purposes, expressing its aversion for "a rule for determining 

custody as amorphous as the Collett test." Id., ¶35. 

¶35 This court then considered whether the defendant was 

"in custody" under the escape statute, Wis. Stat. § 946.42. 

Magnuson, 233 Wis. 2d 40, ¶¶39–46. In analyzing § 946.42(1)(a), 

this court first concluded that the defendant was not in actual 

custody under § 946.42(1)(a), as he was not in the custody of an 

institution, secured correctional facility, secure detention 

facility, a peace officer, or an institutional guard. Id., ¶40. 

Next, this court concluded that the defendant was not under 

constructive custody within the meaning of § 946.42(1)(a). Id., 

¶41. This court noted that constructive custody included 

"temporary leave for the purpose of work, school, medical care, 

or otherwise," and concluded that the defendant's bond 

conditions did not equate to "a temporary release for any of the 

specified purposes." Id. 

¶36 Therefore, since the defendant would have been subject 

to a bail-jumping charge only for violating the conditions of 

his bond, this court concluded that he was not in danger of 

being charged with escape and thus was not eligible to receive 

sentence credit for the time he spent under home detention. 

Id., ¶46. Notably, this court did not address Riske nor did it 

espouse any lack-of-fault requirement like the court of appeals 

in Riske. This court, however, did not specifically overrule 

Riske. 
No. 2017AP1337-CR 

21 

3. Dentici 

¶37 Two years after this court's decision in Magnuson, the 

court of appeals was again faced with a sentence credit issue in 

Dentici. There, on February 3, 1997, the defendant pled guilty 

to operating a vehicle without the owner's consent and was 

placed on probation. Dentici, 251 Wis. 2d 436, ¶2. As a 

condition of probation, the circuit court ordered the defendant 

to serve 60 days in jail. Id. When the defendant reported to 

the jail the same day he was sentenced, he was informed that the 

jail was overcrowded and that he should return on February 28, 

1997. Id. The defendant returned on February 28, 1997, and was 

released on May 13, 1997. Id. On February 5, 1998, the 

defendant's probation was revoked, and the defendant was 

sentenced to two years of imprisonment. Id., ¶3. The defendant 

filed a series of motions with the circuit court in part seeking 

sentence credit for the 25 days he was not in jail between 

February 3 and February 28, 1997, because of overcrowding. Id. 

The circuit court denied the defendant's motion for the 25 days 

of sentence credit, and the defendant appealed. Id. 

¶38 The court of appeals reversed the circuit court, 

concluding that the defendant was entitled to sentence credit 

for the 25 days elapsing between February 3 and February 28, 

1997. Id., ¶13. Specifically, the court of appeals concluded 

that: (1) the definition of "custody" is not limited to the 

definition provided in Wis. Stat. § 946.42(1)(a) (1999-2000); 

(2) under Riske and Wis. Stat. § 973.15(7), a defendant is in 

custody while at liberty through no fault of his or her own due 
No. 2017AP1337-CR 

22 

to overcrowding; and (3) the defendant would have been subject 

to an escape charge for violating any of the conditions of his 

constructive custody. Dentici, 251 Wis. 2d 436, ¶13. In 

reaching its holding, the court of appeals compared the 

defendant's situation to that of the defendant in State v. 

Sevelin, 204 Wis. 2d 127, 554 N.W.2d 521 (Ct. App. 1996).9 

Dentici, 251 Wis. 2d 436, ¶11. The court of appeals concluded 

that like Sevelin, the Dentici "was granted leave for a 

temporary period of time, [25] days, and was required to return 

on a specified date." Id. Additionally, the court of appeals 

considered the defendant's "leave" from jail to be similar to 

leave granted under Wis. Stat. § 303.068 (1999-2000), concluding 

that the defendant was in constructive custody, as he was 

temporarily outside of jail for a purpose that would be covered 

by the "or otherwise" language of § 946.42(1)(a)1.f. Dentici, 

251 Wis. 2d 436, ¶12. Therefore, the court of appeals reasoned 

that the defendant would have been subject to an escape charge 

for not returning to the jail on February 28, 1997. Id. 

 

9 In Sevelin, which was decided before Magnuson, the circuit 

court granted the defendant a "furlough" to attend an inpatient 

treatment facility. State v. Sevelin, 204 Wis. 2d 127, 130, 554 

N.W.2d 521 (Ct. App. 1996). Sevelin signed "an authorization so 

that the [circuit] court could obtain information from the 

facility about his progress and whether he had left the 

[treatment facility]. The [circuit] court warned Sevelin that 

if he left the [treatment facility] for any reason, he would 

have to return to jail immediately." Id. Unlike Freidlander, 

Sevelin sought credit for this time in treatment. Id. at 133. 
No. 2017AP1337-CR 

23 

¶39 Apparently recognizing a need to square its holding 

with Magnuson, the court of appeals in Dentici attempted to 

harmonize Riske and Magnuson, claiming that "the Riske 

definition of custody coexists with the Magnuson definition." 

Id., ¶13. In the ensuing discussion, the court of appeals cited 

Magnuson for only this court's statement that Wis. Stat. 

§ 946.42(1)(a) is not the exclusive definition of "in custody" 

for sentence credit purposes, and that the statutes should be 

read in pari materia. Dentici, 251 Wis. 2d 436, ¶13. The court 

of appeals then relied on Riske, stating that under Wis. Stat. 

§ 973.15(7), "custody" included the time that defendants are at 

liberty through no fault of their own. Id. The court of 

appeals thus concluded that the defendant would have been 

subject to an escape charge for violating any of the conditions 

of his constructive custody. Id. 

¶40 Judge Ralph Adam Fine authored a persuasive dissent to 

the majority's opinion in Dentici. He emphasized that "Magnuson 

established a bright-line rule to determine when a person is in 

'custody' for sentence-credit purposes: a person is in 

'custody' if he or she is 'subject to an escape charge for 

leaving that status.'" Id., ¶15 (Fine, J. dissenting) (citing 

Magnuson, 233 Wis. 2d 40, ¶31). Judge Fine further stated, "The 

Majority does not tell us under what provision of law, or under 

what circumstances, Dentici could have been guilty of "escape" 

before the date he had to report to the [jail], and I am aware 

of none . . . ." Id. (Fine, J. dissenting). As Judge Fine 

aptly concluded, the defendant in Dentici "was free——'escape 
No. 2017AP1337-CR 

24 

from freedom' is not yet a crime." Id. (Fine, J. dissenting). 

Additionally, Judge Fine noted that the defendant was not 

"sentenced" to incarceration as he was ordered to serve jail 

time as a condition of probation, not as a sentence. Id., ¶16 

(Fine, J. dissenting) (citing Prue v. State, 63 Wis. 2d 109, 

114, 216 N.W.2d 43 (1974) (stating that "probation is not a 

sentence")). Judge Fine concluded that the court of appeals was 

"bound by Magnuson," not Riske. Id. (Fine, J. dissenting). 

¶41 As Judge Fine correctly discussed in his dissent, the 

court of appeals' holding in Dentici is fundamentally 

problematic. The court of appeals modified the bright-line rule 

established in Magnuson, effectively bootstrapping the Riske 

standard to the rule we set forth in Magnuson. This court did 

not state in Magnuson that a defendant who is at liberty through 

no fault of his or her own is "in custody" and thus entitled to 

sentence credit. Indeed, that was not part of the analysis. 

Rather, we held that a defendant who is subject to an escape 

charge for leaving his or her status is "in custody" for 

sentence credit purposes. Certainly, our rule in Magnuson would 

not be as "bright-line" as we indicated if we silently 

incorporated the court of appeals' test in Riske as a latent 

part of the analysis, leaving courts to engage in a guessing 

game regarding the proper standard. 

¶42 Therefore, today we clarify and overrule Riske and 

Dentici in favor of our bright-line rule set forth in Magnuson. 

We disavow the Riske and Dentici adoption of a common-law rule 

to award sentence credit especially given the legislature's 
No. 2017AP1337-CR 

25 

enactment of a comprehensive statutory method to address 

sentence credit. When determining whether a defendant is "in 

custody" for the purposes of sentence credit under Wis. Stat. 

§ 973.155, we look to whether the defendant is subject to an 

escape charge for leaving the defendant's status. In 

determining whether an escape charge could lie, we generally 

turn to the escape statute, Wis. Stat. § 946.42. However, 

whether a defendant is subject to an escape charge for leaving 

his status may also be informed by other statutes which 

expressly provide for escape charges for violation of the 

statute, such as Wis. Stat. §§ 301.046 ("Community residential 

confinement."), 301.048 ("Intensive sanctions program."), and 

302.425 ("Home detention programs."). However, such statutes 

are relevant only for consideration for sentence credit purposes 

where a defendant is actually a participant in the programs 

governed by those statutes.10 Whether a defendant is at liberty 

 

10 For example, Wis. Stat. § 301.046 creates a "[c]ommunity 

residential confinement" program, which provides that under the 

program, the DOC "shall confine prisoners in their places of 

residence or other places designated by the department." 

§ 301.046(1). Subsection (6), which is titled "Escape," states, 

"Any intentional failure of a prisoner to remain within the 

extended limits of his or her confinement or to return within 

the time prescribed by the superintendent is considered an 

escape under s. 946.42(3)(a)." § 301.046(6). As Friedlander 

was not under any such statutorily-created program, much less 

one that provides for an escape charge if the terms of the 

program are violated, we need not consider any statute outside 

of Wis. Stat. § 946.42 in determining whether Friedlander would 

be subject to an escape charge during his time at liberty. 
No. 2017AP1337-CR 

26 

through no fault of that defendant is irrelevant to a sentence 

credit determination. 

C. Under Magnuson, Friedlander Is Not Entitled 

To Sentence Credit. 

¶43 Having determined the proper standard for evaluating 

whether a defendant is entitled to sentence credit under Wis. 

Stat. § 973.155, we now turn to whether Friedlander is entitled 

to sentence credit for the time he spent at liberty from 

September 27, 2016, through December 1, 2016. The State argues 

that under Magnuson and Wis. Stat. § 946.42(1)(a)2., Friedlander 

is not entitled to sentence credit for his time spent at liberty 

because he was merely on probation and could not have been 

charged with escape for leaving that status.11 Friedlander 

claims that even upon an overruling of Riske and Dentici, he is 

entitled to sentence credit on equitable principles since he was 

at liberty through no fault of his own. We disagree. 

¶44 Friedlander argues that despite the statute, we should 

award sentence credit for equitable reasons. Courts, however, 

should be most hesitant to adopt judicially created remedies 

when the legislature, the primary policymaker, has statutorily 

 

11 Wisconsin Stat. § 946.42(1)(a)2. states as follows: 

 "Custody" does not include the constructive 

custody of a probationer, parolee, or person on 

extended supervision by the department of corrections 

or a probation, extended supervision, or parole agent 

or, subject to s. 938.533(3)(a), the constructive 

custody of a person who has been released to community 

supervision or aftercare supervision under ch. 938 

(emphasis added). 
No. 2017AP1337-CR 

27 

addressed the topic. Here, we defer to those policy choices. 

Cf. Black v. City of Milwaukee, 2016 WI 47, ¶30, 369 

Wis. 2d 272, 882 N.W.2d 333. Moreover, Friedlander offers 

little to explain how the sentence credit he seeks is anything 

but a windfall. He seeks credit for time he spent at liberty 

even though the circuit court here found that he knew he was 

sentenced to serve additional time. 

¶45 Under the rule we established in Magnuson and reaffirm 

today, Friedlander was not in custody between September 27, 

2016, and December 1, 2016, and is not entitled to sentence 

credit. Our analysis is straightforward and consistent with 

Magnuson. In order to receive sentence credit under Wis. Stat. 

§ 973.155, Friedlander must have been "in custody." Under Wis. 

Stat. § 946.42(1)(a), custody can either be actual or 

constructive. Crucially however, the escape statute is clear 

that "custody" does not include constructive custody of a 

defendant on probation or extended supervision. See 

§ 946.42(1)(a)2. 

¶46 Here, Friedlander does not contend that he was in 

actual custody between September 27 and December 1, 2016. 

Therefore, Friedlander could be entitled to sentence credit for 

the 65 days at issue only if he was under constructive custody 

within the meaning of Wis. Stat. § 946.42(1)(a). He was not. 

Unlike the defendant in Magnuson, who was under a bail 

monitoring program and awaiting sentencing, Friedlander was on 

probation between September 27 and December 1, 2016. Since 

Friedlander was merely on probation during those 65 days, under 
No. 2017AP1337-CR 

28 

§ 946.42(1)(a)2., Friedlander could not have been in "custody." 

As a result, like the defendant in Magnuson, Friedlander is not 

entitled to 65 days sentence credit. 

¶47 Friedlander's reliance on equitable principles is 

unpersuasive.12 In arguing equitable principles, Friedlander in 

large part simply restates the rationale the court of appeals 

 

12 Unfortunately, mistaken early release is somewhat common. 

See e.g., Monique Garcia, Gov. Pat Quinn admits mistake on 

early-release of prisoners, blames corrections chief, Chicago 

Tribune, Dec. 31, 2009, https://www.chicagotribune.com/news/ctxpm-2009-12-31-chi-quinn-parole-program-31dec31-story.html; 

Kevin Johnson, Federal prison errors cause mistaken releases, 

USA Today, May 24, 2016, https://www.usatoday.com/ 

story/news/nation/2016/05/24/federal-prison-errors-mistakenreleases/84851378/; Kendra Alleyne, Computer Glitch Causes 

Mistaken Early Release of More Than 3,000 Inmates, Campbell Law 

Observer, Jan. 11, 2016, http://campbelllawobserver.com/ 

computer-glitch-causes-mistaken-early-release-of-more-than-3000-

inmates/; John Guidry II, Florida Prison's Mistaken/Accidental 

Early Release Programs, Orlando Criminal Defense Blog, Jan. 1, 

2011, https://www.orlandocriminaldefenseattorneyblog.com/ 

florida-prisons-mistakenaccide/; Associated Press, Jail inmate 

mistakenly released instead of shipped to prison, The Post and 

Courier, Jun. 5, 2017, https://www.postandcourier.com/news/asouth-carolina-jail-inmate-was-mistakenly-released-insteadof/article_1ab5db32-494f-11e7-b226-b3c803f08d6e.html. 

We recognize that after being mistakenly released, some 

federal and state courts have granted defendants sentence 

credit, but other federal and state courts have not. Some 

courts have awarded sentence credit based upon considerations of 

equity, substantive due process, estoppel, common law, or other 

policy. While it might be tempting to pick and choose a case 

from another jurisdiction to lend support for granting or not 

granting sentence credit, that exercise is of little value 

without also considering the facts and law underlying that 

decision. Instead of turning to other jurisdictions for 

guidance, we rely upon Wisconsin's comprehensive sentence credit 

statutes, Magnuson, and our escape statute, Wis. Stat. § 946.42. 
No. 2017AP1337-CR 

29 

relied upon in Riske, which we overrule. As Friedlander 

correctly notes, the sentence credit statute is "designed to 

prevent a defendant from serving more time than his sentence or 

his sentences call for." State v. Johnson, 2009 WI 57, ¶31, 318 

Wis. 2d 21, 767 N.W.2d 207 (citing State v. Beets, 124 

Wis. 2d 372, 379, 369 N.W.2d 382 (1985)). Here, however, 

Friedlander does not argue that disallowing sentence credit for 

the 65 days he was at liberty would somehow require him to serve 

more time than given by the circuit court. Indeed, Friedlander 

at this point has served the entirety of the eight months of 

conditional jail time called for as part of his probation, which 

was notably the result of a joint recommendation to the circuit 

court by both the State and Friedlander's counsel. Friedlander 

thus seeks a sentence credit presumably that would apply to a 

sentence if probation were revoked and result in frustrating the 

circuit court's sentence because he would then be subject to 

less than the prescribed amount of time.13 Our holding today 

 

13 As discussed previously, Friedlander's eight months of 

conditional jail time was a condition of probation. We 

acknowledge that individuals who are deemed to be in custody 

would nonetheless receive credit for the time in custody even if 

that time is served as a condition of probation. Wis. Stat. 

§ 946.42. We also acknowledge that probation is not a sentence. 

See Prue v. State, 63 Wis. 2d 109, 114, 216 N.W.2d 43 (1974) 

(stating that "probation is not a sentence"). Even considering 

the language Friedlander quotes from State v. Johnson, 2009 WI 

57, 318 Wis. 2d 21, 767 N.W.2d 207, his situation is inapposite, 

as Friedlander was on probation between September 27 and 

December 1, 2016, but he was released to freedom instead of 

serving his court-ordered time in custody. 
No. 2017AP1337-CR 

30 

does not require Friedlander to serve more time in confinement 

than he was ordered and thus does not violate any sort of 

equitable principle associated with the sentence credit 

statute.14 We cannot condone such a subversion of a judicial 

officer's determination. 

IV. CONCLUSION 

¶48 This court is presented with two issues. First, we 

must determine the meaning of "in custody" under Wis. Stat. 

§ 973.155. In doing so, we consider whether the court of 

appeals' decisions in Riske, 152 Wis. 2d 260, and Dentici, 251 

Wis. 2d 436, are in harmony with this court's decision in 

Magnuson, 233 Wis. 2d 40. We conclude that for the purpose of 

receiving sentence credit under § 973.155, a defendant is "in 

custody" whenever the defendant is subject to an escape charge 

under Wis. Stat. § 946.42, or another statute which expressly 

provides for an escape charge, as this court held in Magnuson. 

In doing so, we overrule the court of appeals' decisions in 

Riske and Dentici. 

¶49 Second, we must determine whether Friedlander is 

entitled to sentence credit for time he spent at liberty after 

being mistakenly released from prison without being transferred 

to serve his remaining conditional jail time. We conclude that 

Friedlander is not entitled to sentence credit because 

 

14 Friedlander did not raise any arguments regarding his 

constitutional right to due process. Therefore, we need not 

consider whether Friedlander's due process rights were violated, 

and decline to do so. 
No. 2017AP1337-CR 

31 

Friedlander, who was at liberty, could not have been subject to 

conviction for escape under Wis. Stat. § 946.42. Thus, we 

reverse the court of appeals. 

By the Court.—The decision of the court of appeals is 

reversed.
No. 2017AP1337-CR.ssa 

1 

¶50 SHIRLEY S. ABRAHAMSON, J. (dissenting). I agree 

with Justice Ann Walsh Bradley that fundamental principles of 

fairness support the equitable doctrine of credit for time 

erroneously spent at liberty. 

¶51 I do not join Justice Bradley's dissent because, in my 

view, the defendant is entitled to sentence credit under the 

rule announced in State v. Magnuson, 2000 WI 19, 233 Wis. 2d 40, 

606 N.W.2d 536. 

¶52 In Magnuson, this court held that "an offender's 

status constitutes custody for sentence credit purposes when the 

offender is subject to an escape charge for leaving that 

status."1 The Magnuson court looked to Wisconsin's escape 

statute, Wis. Stat. § 946.42(1)(a)1., to determine whether the 

defendant was in "custody" as defined therein. 

¶53 The escape statute provides that "'[c]ustody' includes 

without limitation all of the following: . . . h. Custody of a 

person subject to a confinement order under s. 973.09(4)."2

 

1 State v. Magnuson, 2000 WI 19, ¶1, 233 Wis. 2d 40, 606 

N.W.2d 536. 

2 Wis. Stat. § 946.42(1)(a)1.h. 

The majority appears to conflate the definition of 

"custody" as provided in subsection h. (i.e., subject to a 

confinement order under Wis. Stat. § 973.09(4)) with the 

definition of "custody" in subsection a. (i.e., actual custody 

in an institution). See majority op., ¶46 n.12. 

(continued) 
No. 2017AP1337-CR.ssa 

2 

¶54 Wisconsin Stat. § 973.09(4) allows a court to require 

as a condition of probation that the probationer be confined for 

a period not to exceed one year. 

¶55 In the instant case, the defendant was incarcerated in 

the Oshkosh Correctional Institution as a result of a conviction 

that is not relevant to resolving the sentence credit issue 

presented here. In a separate criminal case, the defendant 

pleaded guilty to bail jumping, and the circuit court ordered 

that the defendant be confined in the Jefferson County jail for 

eight months as a condition of his probation. This order 

constitutes a confinement order under Wis. Stat. § 973.09(4). 

¶56 After completing his prison sentence in Oshkosh, the 

defendant was supposed to be transferred to the county jail to 

 

Individuals serving jail time as a condition of their 

probation per Wis. Stat. § 973.09(4) would be entitled to 

sentence credit for that time even if subsection h. did not 

exist because that time would qualify as "custody" under 

subsection a. That is, the jail time would constitute time 

spent in the "[a]ctual custody of an institution." Wis. Stat. 

§ 946.42(1)(a)1.a. The majority's contrary reasoning renders 

subsection h. superfluous. 

To the extent the majority relies on Wis. Stat. 

§ 946.42(1)(a)2., that reliance is misplaced. Section 

946.42(1)(a)2. specifies that "'[c]ustody' does not include the 

constructive custody of a probationer . . ." (emphasis added). 

Probationers serving jail time as a condition of their probation 

are not in constructive custody. They are in the "[a]ctual 

custody of an institution" per § 946.42(1)(a)1.a. while serving 

that conditional jail time. See State v. Zimmerman, 2001 WI App 

238, ¶¶13-14, 248 Wis. 2d 370, 635 N.W.2d 864 (providing helpful 

statutory and legislative history regarding the escape statute's 

application to probationers). 
No. 2017AP1337-CR.ssa 

3 

serve his confinement as a condition of his probation, but 

instead, he was mistakenly released through no fault of his own. 

¶57 In my view, the defendant was still "subject to a 

confinement order under s. 973.09(4)" upon his mistaken release.3

¶58 In the instant case, the defendant was not aware that 

he was mistakenly released. While mistakenly released, the 

defendant met with his probation agent as he was required to do. 

The probation agent did not tell the defendant that he needed to 

report to jail. However, approximately six weeks after the 

defendant's mistaken release, the Jefferson County Sheriff's 

Office discovered that the defendant was mistakenly released 

from prison. A sergeant from the sheriff's office contacted the 

defendant's probation agent. The probation agent contacted the 

defendant, and the defendant promptly cooperated with law 

enforcement officials in sorting out how to proceed. 

¶59 The defendant posits that if he had "left the state or 

failed to respond to inquiries from his probation agent or law 

enforcement concerning his court-ordered confinement, he [] 

could have been charged with escape." 

 

3 See State v. Edwards, 2003 WI App 221, ¶¶20-21, 267 

Wis. 2d 491, 671 N.W.2d 371 (explaining that a probationer 

serving jail time as a condition of his probation who was 

periodically transferred to a hospital for a medical condition 

was still in "custody" while at the hospital because he "was 

subject to a confinement order pursuant to Wis. Stat. 

§ 973.09(4)," but when the circuit court stayed its order for 

conditional jail time, the probationer was no longer in 

"custody" because "he was no longer subject to the confinement 

order during the periods of his hospitalizations"). 
No. 2017AP1337-CR.ssa 

4 

¶60 I agree. Under the defendant's hypothetical scenario, 

fleeing the state or failing to respond to inquiries from law 

enforcement concerning his Wis. Stat. § 973.09(4) confinement 

order would be persuasive evidence that the defendant intended 

to avoid complying with the confinement order, and he could be 

charged with escape. 

¶61 Because I conclude that the defendant's status during 

the time period at issue constituted "custody" for sentence 

credit purposes, I further conclude that the defendant is 

entitled to sentence credit under the Magnuson rule. 

¶62 Accordingly, I dissent. 
No. 2017AP1337-CR.awb 

1 

¶63 ANN WALSH BRADLEY, J. (dissenting). The majority 

bucks an apparent trend in the law of our sister states and 

federal circuits that have adopted the equitable doctrine of 

credit for time erroneously spent at liberty. Paying little 

mind to the plethora of courts that have adopted the doctrine, 

it summarily dispatches with Friedlander's invocation of equity. 

¶64 In my view, persuasive authority from other 

jurisdictions and fundamental fairness require a deeper 

examination of this topic. 

¶65 When Friedlander was released from prison, he was told 

by words and actions that he was free to go. Relying on the 

information he received from Oshkosh Correctional Institution, 

where he had been previously incarcerated, he took the 

Department of Corrections at its word. 

¶66 By rejecting the equitable doctrine of credit for time 

erroneously spent at liberty, the majority inequitably holds 

Friedlander's reliance on the State against him and allows 

several state players to escape accountability for their 

mistakes. Yet, fundamental fairness appears to rest squarely 

with Friedlander. 

¶67 Adopting the doctrine ensures a fair and equitable way 

to resolve an uncommon factual scenario. Additionally, 

consistent with case law, it holds the State to its obligation 

to provide a certain end date for incarceration and prevents the 

service of a sentence in installments. 

¶68 I conclude that Friedlander should receive the benefit 

of the equitable doctrine of credit for time erroneously spent 
No. 2017AP1337-CR.awb 

2 

at liberty. This conclusion is consistent with the sense of 

fairness and equity embraced by a majority of the federal 

circuits and an abundance of state courts that have adopted the 

doctrine and at odds with the sense of fairness and equity 

tersely espoused by the majority here. 

¶69 Accordingly, I respectfully dissent. 

I 

¶70 The record throughout this case reflects mistakes by 

the State and some uncertainty on the part of the court. At the 

outset, the circuit court was unsure as to where the Department 

of Corrections would have Friedlander serve the conditional jail 

sentence that remained after his prison sentence was complete. 

Majority op., ¶5. At sentencing, the circuit court indicated: 

Clearly you'll be serving your sentence when you have 

a prison sentence and conditional jail in the prison, 

and that's the Court's expectation, and I doubt that 

the Department of Corrections will in any way 

interpret that portion any differently, but it's just 

a question of once your underlying case is done and if 

there's still some of this conditional jail time, 

where they'll have you serve it (emphasis added). 

Thus, the circuit court left it to the Department of Corrections 

to resolve the unanswered question of where it would have 

Friedlander serve the extra conditional time. 

¶71 The uncertainty was resolved when, according to 

Friedlander, a social worker at Oshkosh Correctional Institution 

informed him that his conditional jail sentence was satisfied 

prior to his release. Majority op., ¶8. 

¶72 This resolution by the Department of Corrections was 

underscored when, after completing his prison sentence, 
No. 2017AP1337-CR.awb 

3 

Friedlander was released from Oshkosh Correctional Institution 

instead of being transported to the Jefferson County jail to 

finish any conditional jail sentence. Id., ¶6. It was further 

underscored by Oshkosh officials never bothering to notify 

Jefferson County of Friedlander's release. Id. 

¶73 But why would they? 

¶74 The sentencing court apparently left to the Department 

of Corrections the decision as to where the conditional time 

would be served and they apparently determined it would be 

served prior to his release from Oshkosh. We now learn, 

however, that Oshkosh's apparent determination of where 

Friedlander would serve the extra conditional jail time and 

their actions supporting that determination were all mistakes. 

¶75 To compound the apparently mistaken determination and 

actions, once Friedlander was released, more mistakes and 

uncertainty appear. 

¶76 Upon his release, Friedlander immediately met with his 

probation agent. Id., ¶7. At the initial meeting, the agent 

either did not know or knew but failed to tell him that he 

needed to report to jail to serve additional time. Id. 

Friedlander met with his probation agent a second time. Id. 

Again, the agent failed to tell him to report to jail or in any 

way indicate that he had additional time to serve. Id. Neither 

the probation agent nor Friedlander apparently saw a need to 

contact the circuit court to clarify whether Friedlander had to 

serve additional time. Id. 
No. 2017AP1337-CR.awb 

4 

¶77 The Jefferson County Sheriff's Office eventually was 

concerned about Friedlander's status and contacted his probation 

agent, who in turn spoke with Friedlander. Id., ¶8. 

Friedlander immediately contacted the Jefferson County Sheriff's 

Office after his probation agent informed him of the issue. Id. 

¶78 Friedlander relayed to the sheriff's office what his 

social worker had told him about his conditional jail sentence 

being satisfied prior to his release. Id. Unsure how to 

proceed, the sheriff's office wrote a letter to the circuit 

court asking how to resolve the situation. Id. 

¶79 Similarly unsure how to proceed, the circuit court 

held a hearing. Id., ¶9. After hearing testimony and argument, 

it ultimately concluded that under existing law Friedlander is 

not entitled to sentence credit for his time erroneously spent 

at liberty. Id., ¶11. 

II 

¶80 Although I agree with the majority's reliance on State 

v. Magnuson, 2000 WI 19, ¶47, 233 Wis. 2d 40, 606 N.W.2d 536, I 

part ways with the majority when it brushes off Friedlander's 

argument that he should be granted sentence credit pursuant to 

equitable principles. It spurns the litany of our sister states 

and federal circuits that have adopted the equitable doctrine of 

credit for time erroneously spent at liberty. See majority op., 

¶47 n.12. In summary fashion, the majority dispenses with 

Friedlander's invocation of the doctrine. See majority op., 

¶¶44, 47. In my view, the majority is incorrect in its summary 

dismissal of Friedlander's legitimate equitable concerns. 
No. 2017AP1337-CR.awb 

5 

¶81 This court has stated that "confinement credit is 

designed to afford fairness——that a person not serve more time 

than that for which he is sentenced." State v. Beets, 124 

Wis. 2d 372, 379, 369 N.W.2d 382 (1985). Putting this principle 

into practice, the Tenth Circuit has determined that "[a] 

prisoner has some rights. A sentence of five years means a 

continuous sentence, unless interrupted by escape, violation of 

parole, or some fault of the prisoner, and he cannot be required 

to serve it in installments." White v. Pearlman, 42 F.2d 788, 

789 (10th Cir. 1930) (emphasis added).1

 

1 The Ninth Circuit has further explained: 

The least to which a prisoner is entitled is the 

execution of the sentence of the court to whose 

judgment he is duly subject. If a ministerial 

officer, such as a marshal, charged with the duty to 

execute the court's orders, fails to carry out such 

orders, that failure cannot be charged up against the 

prisoner. The prisoner is entitled to serve his time 

promptly if such is the judgment imposed, and he must 

be deemed to be serving it from the date he is ordered 

to serve it and is in the custody of the marshal under 

the commitment, if, without his fault, the marshal 

neglects to place him in the proper custody. Any 

other holding would give the marshal, a ministerial 

officer, power more arbitrary and capricious than any 

known in the law. A prisoner sentenced for one year 

might thus be required to wait forty under the shadow 

of his unserved sentence before it pleases the marshal 

to incarcerate him. Such authority is not even 

granted to courts of justice, let alone their 

ministerial officers. Citation of authority is hardly 

needed to establish so elementary a proposition. 

Smith v. Swope, 91 F.2d 260, 262 (9th Cir. 1937) (citations 

omitted). 
No. 2017AP1337-CR.awb 

6 

¶82 In the federal courts, this principle has manifested 

as "a common law rule, which has been held applicable to federal 

sentencing, that unless interrupted by fault of the prisoner (an 

escape, for example) a prison sentence runs continuously from 

the date on which the defendant surrenders to begin serving it." 

Dunne v. Keohane, 14 F.3d 335, 336 (7th Cir. 1994). In 

practice, this means that "[t]he government is not permitted to 

delay the expiration of the sentence either by postponing the 

commencement of the sentence or by releasing the prisoner for a 

time and then reimprisoning him." Id. 

¶83 Such a proposition is embodied by the "doctrine of 

credit for time erroneously spent at liberty." Pursuant to this 

doctrine, a convicted person is granted "credit against his 

sentence for time spent at liberty due to 'simple or mere 

negligence on behalf of the government' and 'provided the delay 

in execution of sentence was through no fault [of the convicted 

person].'" In re Roach, 74 P.3d 134, 137 (Wash. 2003) (citing 

United States v. Martinez, 837 F.2d 861, 865 (9th Cir. 1988)). 
No. 2017AP1337-CR.awb 

7 

¶84 The vitality of this doctrine has been recognized by a 

majority of federal circuit courts and an abundance of state 

courts.2 Wisconsin should do the same. 

¶85 Adopting the equitable doctrine would be consistent 

with the trend in federal and state courts throughout the 

country that implicitly reject an assertion that it necessarily 

results in a windfall for defendants. Indeed, many federal and 

state courts have "moved away from a strict application of the 

traditional rule requiring a released prisoner to serve his full 

sentence no matter the circumstances of his release, and have 

granted an erroneously released prisoner relief based on 

 

2 See Espinoza v. Sabol, 558 F.3d 83, 90 (1st Cir. 2009); 

Kiendra v. Hadden, 763 F.2d 69, 72-73 (2d Cir. 1985); Vega v. 

United States, 493 F.3d 310, 318 (3d Cir. 2007); Free v. Miles, 

333 F.3d 550, 554 (5th Cir. 2003); United States v. Croft, 450 

F.2d 1094, 1097 (6th Cir. 1971); Dunne v. Keohane, 14 F.3d 335, 

336-37 (7th Cir. 1994); Green v. Christiansen, 732 F.2d 1397, 

1400 (9th Cir. 1984); White v. Pearlman, 42 F.2d 788, 789 (10th 

Cir. 1930); McCall v. State, 594 So.2d 733, 734 (Ala. Crim. App. 

1992); McKellar v. Arizona State Dep't of Corr., 566 P.2d 1337, 

1339-40 (Ariz. 1977); People v. Stark, 902 P.2d 928, 930 (Colo. 

App. 1995); Drumwright v. State, 572 So.2d 1029, 1031 (Fla. 

Dist. Ct. App. 1991); Derrer v. Anthony, 463 S.E.2d 690, 693 

(Ga. 1995); State v. Kline, 475 So.2d 1093, 1093 (La. 1985) (per 

curiam); State v. Williams, 410 A.2d 251, 252 (N.J. 1980); 

People ex rel. Bilotti v. Warden, New York City Corr. Inst. For 

Men, 345 N.Y.S.2d 584, 585 (N.Y. App. Div. 1973) (per curiam); 

Jacobs v. Robinson, 410 A.2d 959, 960 (Pa. Commonw. Ct. 1980); 

Curry v. State, 720 S.W.2d 261, 263-64 (Tex. Ct. App. 1986); In 

re Roach, 74 P.3d 134, 137 (Wash. 2003); see also Gabriel J. 

Chin, Getting Out of Jail Free: Sentence Credit for Periods of 

Mistaken Liberty, 45 Cath. U. L. Rev. 403, 406-10 (1996); Andrew 

T. Winkler, Implicit in the Concept of Erroneous Liberty: The 

Need to Ensure Proper Sentence Credit in the Fourth Circuit, 35 

N.C. Cent. L. Rev. 1, 11-20 (2012). 
No. 2017AP1337-CR.awb 

8 

principles of equity and fairness." Roach, 74 P.3d at 136 

(internal citations omitted). 

¶86 The doctrine of credit for time erroneously spent at 

liberty is a fair and equitable way to resolve an infrequent 

factual situation. It holds the State to its obligation to 

provide a certain end date for incarceration and prevents the 

service of a sentence in installments. "The government is not 

permitted to play cat and mouse with the prisoner, delaying 

indefinitely the expiation of his debt to society and his 

reintegration into the free community." Dunne, 14 F.3d at 336. 

Yet the majority is unbothered by the possibility that 

Friedlander and others similarly situated may face just the type 

of piecemeal sentence that federal case law instructs us to 

avoid. 

¶87 This case presents the very "cat and mouse" scenario 

the equitable doctrine is designed to prevent. Mistakes and 

uncertainty on the part of multiple state actors——the Oshkosh 

social worker who told Friedlander his sentence was satisfied, 

the Oshkosh staff who failed to notify Jefferson County of his 

release, the probation agent who neglected to tell Friedlander 

to report to jail, the Jefferson County Sheriff's Office that 

was unsure how to handle the situation, and the circuit court 

that was similarly unsure how to address the scenario——resulted 

in the possibility of Friedlander serving a non-continuous 

sentence. 

¶88 Such a sentence served in installments is, as the 

Seventh Circuit observed in Dunne, detrimental to the 
No. 2017AP1337-CR.awb 

9 

reintegration of prisoners back into society. See id. "When 

courts fail to recognize the doctrine [of credit for time 

erroneously spent at liberty], erroneously released prisoners 

who have successfully rehabilitated themselves into society must 

continually suffer under the auspice that the government may one 

day require re-incarceration for the service of an unfulfilled 

sentence." Andrew T. Winkler, Implicit in the Concept of 

Erroneous Liberty: The Need to Ensure Proper Sentence Credit in 

the Fourth Circuit, 35 N.C. Cent. L. Rev. 1, 30 (2012). 

¶89 Additionally, despite the Department of Corrections, 

law enforcement, and the circuit court being either mistaken or 

unsure how to proceed, the majority opines that it is the 

defendant's responsibility to track his release date. In the 

majority's view, it is up to Friedlander to tell the State that 

he may have more time to serve if he is released early through 

no fault of his own. 

¶90 That's easier said than done. Some defendants may 

have very complex sentences, with overlapping consecutive and 

concurrent periods of confinement. To expect a defendant to 

monitor and repeatedly correct the State's math places an 

untenable and unreasonable responsibility on a defendant——

especially when the State indicates by words and actions that he 

is free. 

¶91 In sum, the government, by its words and actions, told 

Friedlander that he was free and then took it back. 

Friedlander's rehabilitation and reintegration into society 

should not be delayed because of the government's errors. He 
No. 2017AP1337-CR.awb 

10 

should receive the sentence credit he seeks pursuant to 

equitable doctrine of credit for time erroneously spent at 

liberty. 

¶92 For the reasons stated above, I respectfully dissent. 
No. 2017AP1337-CR.awb 

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