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Wisconsin DOC Pays Former Prisoner for Miscalculating Sentence

On April 4, 2014, the Wisconsin Department of Corrections (DOC) was ordered to pay $7,600 to former prisoner Robin N. Gavinski for holding him too long in prison. Gavinski was serving three sentences that were supposed to run concurrently; due to an administrative error, however, DOC employees calculated one of the sentences as consecutive. As a result, instead of being released on June 18, 2011, Gavinski was held until August 7, 2012 – amounting to an extra 417 days in prison.

Gavinski filed his first suit against the DOC in March 2013. In his original claim he requested $67,465.04 for lost wages and attorney fees, but at the time was unable to determine the names of the prison employees responsible for erroneously calculating his time. Following the advice of his attorney, he voluntarily dropped the claim.

Drawing a parallel between his own illegal incarceration and prisoners who are later proven innocent and released, Gavinski reinitiated his suit against the DOC, requesting a review by the State of Wisconsin Claims Board. He recalculated damages under § 775.05 Stats and proposed an alternative settlement of $7,600.

Even though they admitted to making the error, DOC officials fought Gavinski’s claim. They argued that his action was a tort claim and they were thus entitled to sovereign immunity; the DOC also argued that it was the responsibility of Gavinski and his attorneys to ensure that his time was calculated correctly.

Gavinski pointed out that he had three separate trial attorneys in the case that involved the sentence calculation error, and that the calculation of his time was the DOC’s responsibility. He showed that § 775.01 Stats., used by the DOC to defend its position, does not apply to tort claims. He also demonstrated that the Claims Board had a history of paying tort claims without affecting the sovereign immunity of the state.

The Board ruled in Gavinski’s favor, citing § 16.007(5) Stats. – which authorizes compensation for negligence without affecting the state’s sovereign immunity. The Board also encouraged the DOC to “correct sentencing miscalculations” such as those that occurred in Gavinski’s case.


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