Opinion
No. 2013AP2092–CR.
2014-08-26
STATE of Wisconsin, Plaintiff–Respondent, v. Travis J. HUSNIK, Defendant–Appellant.
Id. at 100, 423 N.W.2d 533. The court also endorsed the position of the Wisconsin Criminal Jury Instructions Committee's language in SM–34A V.B., that “ ‘The objective with consecutive sentences is to assure that credit is awarded against one, but only one, of the consecutive sentences.’ ” Id. at 101, 423 N.W.2d 533.
Appeal from a judgment of the circuit court for Brown County: Thomas J. Walsh, Judge. Affirmed.
Before HOOVER, P.J., STARK, J., and THOMAS CANE, Reserve Judge. ¶ 1 PER CURIAM.
Travis Husnik appeals a judgment of conviction for two counts of manufacture/delivery of cocaine, second or subsequent offense. Husnik argues the circuit court erroneously calculated his sentence credit by not crediting time served to two separate cases that were ordered to be served consecutively. We reject Husnik's argument, and affirm.
¶ 4 The parties agree that Husnik was in custody “in connection with” both cases for the time period in which he seeks dual credit. Thus, the sole question presented is whether Husnik is entitled to credit against his sentence in both cases, where the sentences were ordered to be served consecutively. This issue was resolved long ago in State v. Boettcher, 144 Wis.2d 86, 87, 423 N.W.2d 533 (1988), where the court held:
Husnik remained in custody on both cases after failing to post bond.
We conclude that dual credit is not permitted—that the time in custody is to be credited to the sentence first imposed—and that, where the sentences are consecutive, the total time to be served is thus reduced by the number of days in custody.... Credit is to be given on a day-for-day basis, which is not to be duplicatively credited to more than one of the sentences imposed to run consecutively.
Further, the court explained,
We are satisfied, from the purpose of the statute and particularly the absence of any language even suggesting the possibility of dual credits where consecutive sentences are imposed, that the public policy behind the statute impels the conclusion we reach here: That custody credits should be applied in a mathematically linear fashion.
Id. at 100, 423 N.W.2d 533. The court also endorsed the position of the Wisconsin Criminal Jury Instructions Committee's language in SM–34A V.B., that “ ‘The objective with consecutive sentences is to assure that credit is awarded against one, but only one, of the consecutive sentences.’ ” Id. at 101, 423 N.W.2d 533.
¶ 5 Despite the supreme court's holding in Boettcher, Husnik argues various statements in subsequent court of appeals decisions suggest he may nonetheless receive dual credit on his consecutive sentences. We disagree.
¶ 6 First, we observe that the court of appeals lacks authority to overrule Boettcher. See Cook v. Cook, 208 Wis.2d 166, 189–90, 560 N.W.2d 246 (1997) (court of appeals may not overrule, modify, or withdraw language from a prior published opinion). Given Boettcher's clear holding, and Husnik's failure to distinguish the case, we could end our analysis here. See State v. Flynn, 190 Wis.2d 31, 39 n. 2, 527 N.W.2d 343 (Ct.App.1994) (we need not address inadequately developed arguments).
¶ 7 Husnik recites statements from three cases that he contends support his argument. The statements, however, are untethered from the context of the respective cases. Husnik's argument boils down to this: Husnik was held in custody on two cases after failing to post bail on each, and sentence credit can apply to both sentences in such situations. Husnik relies on State v. Beiersdorf, 208 Wis.2d 492, 561 N.W.2d 749 (Ct.App.1997); State v. Harr, 211 Wis.2d 584, 568 N.W.2d 307 (Ct.App.1997); and Johnson, 307 Wis.2d 735, 746 N.W.2d 581.
¶ 8 The three cases Husnik cites are inapposite. They all merely resolved questions as to whether a defendant's presentence custody was “in connection with” two separate sentences. See Beiersdorf, 208 Wis.2d at 496–97, 561 N.W.2d 749 (“The issue ... is whether Beiersdorf's forty-four days of custody were ‘in connection with the course of conduct for which ... sentence was imposed.’ ”); Harr, 211 Wis.2d at 591, 568 N.W.2d 307 (reversing trial court decision that defendant “was not in ‘custody in connection with the course of conduct for which ... sentence was imposed’ ”); Johnson, 307 Wis.2d at 736, 746 N.W.2d 581 (“At issue is whether the ‘in connection with’ requirement in the sentence credit statute ... applies individually to each concurrent sentence imposed at the same time.”). This, however, is not an “in connection with” case. The parties agree Husnik was in custody in connection with both cases.
¶ 9 The only question presented here is whether Husnik may receive dual credit against consecutive sentences. Boettcher resolved that question contrary to Husnik's position, no subsequent case has overruled or modified Boettcher, and none of the cases Husnik cites address the issue resolved in Boettcher. We therefore reject Husnik's argument.
Judgment affirmed.
This opinion will not be published. See Wis. Stat. RuleE 809.23(1)(b)5.