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Wisconsin Prisoner Not Due Credit for Time Spent Free after Erroneous Release

by Scott Grammer

Zachary S. Friedlander was already serving a sentence at the Oshkosh Correctional Institution in Wisconsin for a heroin conviction when, on April 15, 2016, he pleaded no contest to one count of felony bail jumping. He was sentenced to three years of probation, to begin after serving eight months jail time which started the same day as the plea bargain hearing and was to run concurrent with the sentence he was already serving. 

The Circuit Court stated on the record that the jail time was a condition of his probation, not a sentence, and even though it would continue beyond his existing sentence, he would have to complete it before being released. While a detainer was placed for that purpose, the Circuit Court seemed unsure of where he would spend the last days of his jail time.

Friedlander’s underlying sentence ended on September 27, 2016, but instead of being transported to jail he was released by prison officials. He met with his probation officer, who did not tell him he was supposed to serve his jail term. After learning of Friedlander’s release, the Jefferson County Sheriff’s Office contacted the Circuit Court. The judge found that Friedlander still needed to serve another 75 days of jail time despite his claim that he should be entitled to credit for the 65 days he spent in the free world.

Friedlander filed a motion to stay, which was denied. He then appealed, and on April 12, 2018, in an unpublished ruling, the Wisconsin Court of Appeals reversed, granting Friedlander his 65 days of credit. See: Wisconsin v. Friedlander, 382 Wis.2d 271 (Wis. Ct. App. 2018) (per curiam).

However, on March 12, 2019, Wisconsin’s Supreme Court reversed the appellate court because Friedlander was “not subject to an escape charge,” and thus was not “in custody” – a requirement that precluded the award of street time. Justices Shirley S. Abrahamson and Ann Walsh Bradley dissented, each for their own reasons, though both held that “fundamental principles of fairness support the equitable doctrine of credit for time erroneously spent at liberty.” See: Wisconsin v. Friedlander, 2019 WI 22 (Wis. 2019). 


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Related legal case

Wisconsin v. Friedlander