State v. Dentici

¶1¶ 14. 0dissenting). State v. Magnuson, 2000 WI 19, 233 Wis. 2d 40, 606 N.W.2d 536, held that a person placed on in-home detention with electronic monitoring was not in "custody" for sentence-credit purposes because he was not subject to an escape charge if he left the confines of his house. The Majority holds that Anthony J. Dentici, Jr., is entitled to sentence credit for the time during which he was free to roam throughout the state until the date on which he was directed to report to the Milwaukee County House of Correction. Frankly, I fail to see the logic of that, and, accordingly, I respectfully dissent.

¶2¶ 15. Magnusonestablished 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. at ¶ 31. The Majority does not tell us under what *448provision of law, or under what circumstances, Dentici could have been guilty of "escape" before the date he had to report to the House of Correction, and I am aware of none; he was free — "escape from freedom" is not yet a crime.

¶3¶ 16. In my view, State v. Riske, 152 Wis. 2d 260, 448 N.W.2d 260 (Ct. App. 1989), upon which the Majority relies, is not on point because there, as the Majority acknowledges, Riske's sentence, by statute, commenced "at noon on the day of sentence." Id.,152 Wis. 2d at 263, 448 N.W.2d at 261. Here, in contrast, Dentici was not "sentenced" to incarceration. Prue v. State, 63 Wis. 2d 109, 114, 216 N.W.2d 43, 45 (1974) ("probation is not a sentence"). Unlike the situation in Riske, Dentici's period of incarceration did not start on the day of "sentencing"; he was placed on probation and did not have to report to the House of Correction until later.1 Moreover, Riskeneither discussed nor relied on what Magnusonwould later lay down as the bright-line rule that governs sentence-credit determinations. Indeed, the State . in Riskeconfessed error on the commencement-of-sentence/sentence-credit issue. Riske, 152 Wis. 2d at 263-264, 448 N.W.2d at 261-262. We are, of course, bound by Magnuson. I respectfully dissent.