Wisconsin Justices Hear Dispute Over Time Served

MADISON, Wis. (CN) – The Wisconsin Supreme Court heard oral arguments Tuesday in a case hinging on whether a prisoner is entitled to a sentence credit for time he spent outside of jail after he was accidentally released early during a transfer between facilities.  

In April 2016, Zachary Friedlander was arrested and pleaded no contest to felony bail jumping. At the time he was sentenced, he was already serving a prison sentence for an unrelated drug conviction.

As part of a plea agreement, Friedlander was ordered to spend eight months in the Jefferson County jail for the bail-jumping charge after serving his time for the drug case at Oshkosh Correctional Institute.

However, officials at Oshkosh Correctional released Friedlander from prison without notifying personnel at the Jefferson County jail of his release or arranging to transfer him.

Friedlander met regularly with his probation officer after his accidental release, and the probation officer never told him to report to jail.

After learning of the mistake 65 days later, the Jefferson County Sheriff’s Office contacted Friedlander’s probation officer, who told him to contact a sheriff’s captain. He promptly did so.

The sheriff’s office asked the circuit court for direction as to whether Friedlander should report to jail until his original release date, and what should be done about the days he should have been in jail but was not.

The court concluded that he needed to serve another 75 days. Friedlander argued that he had earned a sentence credit for the 65 days he spent at liberty through no fault of his own.

The Wisconsin Court of Appeals then reversed the lower court, agreeing with Friedlander that he was entitled to sentence credit as he was absent from jail not because he escaped,but because he was released during his transfer and was not told to report to jail.

On Tuesday, the Wisconsin Supreme Court wrestled with whether Friedlander has satisfied the extent of his jail sentence.

Oral arguments were centered on if a prisoner is legally “in custody” if they are mistakenly released early.

It was noted at the beginning of the hearing that the definition of being “in custody” under Wisconsin law hinges on whether “the offender would be subject to an escape charge for leaving his or her status” of incarceration.

Assistant Attorney General Jacob Wittwer represented the state and said early on that the issue of sentence credits “is confusing enough” and common law “yields unpredictable results.”

Wittwer noted there were no conditions for Friedlander’s release since he was not actually supposed to be released.

Justice Shirley Abrahamson suggested that Friedlander didn’t really do anything wrong, as he only did what he was told to do.

“He didn’t ask to be let out,” Abrahamson said. “Can we expect someone to say ‘take the keys back, I’d like to stay?’”

Wittwer countered that factual findings show Friedlander was at least partially responsible for his being free, as he would have been aware of the status of his sentence when he was accidentally released.

The attorney argued that for the state’s high court to affirm the appeals court, it would have to redefine “in custody” and make abroad concept even broader.

“A defendant should not receive a windfall when the state makes a mistake,” Wittwer said.

Mark Thompson, an assistant public defender representing Friedlander, argued that his client was wholly compliant with what he was told, and he should not have to go back to jail when he has technically served his sentence.

“Despite the fact that he was not in jail,” Thompson said, “the clock is still running on his sentence.”

Resisting that argument, Justice Annette Ziegler compared Friedlander’s “custody” outside of jail with the kind of conditional release that involves home detention.

“With home detention,” Ziegler said, “there are limitations. Friedlander had no such constraint.”

Justice Daniel Kelly argued similarly about the only condition for breach of custody being escape.

“How can you escape from freedom?” Kelly asked.

Thompson concluded that if Friedlander was ordered to return to jail, “we’re essentially letting the state extend people’s sentences in a piecemeal fashion.”

Wittwer finished by once again arguing that affirming the appeals court’s reversal would set bad precedent.

Oral arguments lasted a little over an hour. It is unclear when the Wisconsin Supreme Court will issue a ruling.

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