Citation Numbers: 78 Op. Att'y Gen. 44
Judges: DONALD J. HANAWAY, Attorney General
Filed Date: 3/22/1989
Status: Precedential
Modified Date: 7/6/2016
RAYMOND L. PELRINE, District Attorney Eau Claire County
You have requested my opinion on two issues relating to the proper place of incarceration for a criminal defendant required to serve consecutive misdemeanor or felony sentences, each less than one year, but in the aggregate totalling more than one year. Paraphrasing your questions, you ask:
(1) Where should a criminal defendant be incarcerated when he or she is sentenced on multiple misdemeanor counts and receives consecutive sentences that in the aggregate exceed one year, but individually each sentence is for less than one year?
(2) Where should a criminal defendant be incarcerated when he or she is sentenced on multiple felony counts and receives consecutive sentences that in the aggregate exceed one year, but individually each sentence is for less than one year?
In my opinion, the proper location for incarceration in both of the above-described situations is a county jail, not the Wisconsin state prison system.
The Legislature has attempted to address the problem created when a criminal penalty statute authorizes imprisonment but does not prescribe the place of confinement. The present version of the relevant statute, section
An earlier version of this statute was discussed at length inState ex rel. Gaynon v. Krueger,
In view of [previous] cases, sec. 959.044 made the length of the sentence not the grade of the offense the controlling factor in determining the place of imprisonment for felonies and misdemeanors. As a result, a sentence of more than one year for a felony must be served in a prison but a sentence of less than one year for that same offense must be served in the county jail.
(Emphasis added.) Although Krueger does not explicitly answer your inquiry involving an aggregate of sentences which individually involve less than one year, it does confirm that the length of the sentence, not the grade, classification or nature of the offense, is the controlling factor in determining the place of imprisonment for both misdemeanors and felonies. In my opinion, to be consistent with a literal interpretation of section
The general rule for construction of words and phrases is set construed according to the common and approved usage . . . ." The common and ordinary meaning of a word may be established from definitions given by a recognized dictionary. State v. Mauthe,
Accordingly, the first of two consecutive sentences is served before the second one begins. Each sentence is separate and distinct. Each sentence must be viewed independently in order to determine the place at which the sentence must be served. In this manner, section
The treatment of consecutive sentences as separate and distinct sentences for determining a criminal defendant's proper place of imprisonment is further supported by a literal interpretation of section
Finally, I have been advised that this treatment of the sentencing and incarceration provisions of the Wisconsin statutes is consistent with the long-standing interpretation and application of these provisions by the Department of Health and Social Services. Such long-standing interpretation and application of the statute by the agency charged with its administration must be given great weight when interpreting that statute. See 2A Singer, Sutherland Statutory Construction § 49.05 (Sands 4th ed. 1984); see also West Bend Education Ass'n v.WERC,
As a result of the preceding authorities and considerations, it is my opinion that where a criminal defendant is sentenced on two either multiple misdemeanor or felony counts, or a combination thereof, and receives consecutive sentences that in the aggregate exceed one year, but individually are all less than *Page 48 one year, the defendant should be incarcerated in a county jail. The length of each sentence is the determining factor, and each sentence must be viewed separately. Aggregated consecutive sentences, each less than one year, do not create one long sentence capable of service in the Wisconsin prison system.
DJH:JSS
Grobarchik v. State , 102 Wis. 2d 461 ( 1981 )
Nottelson v. Department of Industry, Labor & Human Relations , 94 Wis. 2d 106 ( 1980 )
State v. Mauthe , 123 Wis. 2d 288 ( 1985 )
State v. Ehlenfeldt , 94 Wis. 2d 347 ( 1980 )
State v. Wittrock , 119 Wis. 2d 664 ( 1984 )
West Bend Education Ass'n v. Wisconsin Employment Relations ... , 121 Wis. 2d 1 ( 1984 )