The idea behind sentencing credit sounds simple: an offender who is ultimately convicted gets credit for time spent in custody prior to conviction (e.g., awaiting trial). In Wisconsin, Section 973.155(1)(a) of the Wisconsin Statutes provides that “[a] convicted offender shall be given credit toward the service of his or her sentence for all days spent in custody in connection with the course of conduct for which sentence was imposed.” Section (1)(a) goes on to clarify that “actual days spent in custody” includes “confinement related to an offense for which the offender is ultimately sentenced.” For example, if an offender is charged with first-degree intentional homicide but pleads to a lesser charge for the same underlying murder, the offender must receive credit for any time spent in custody related to the initial charge.

The language of Section 973.155 may not seem complicated, but the Wisconsin Supreme Court has had to resolve many cases about it lately. In fact, the court has acknowledged that sentencing credit cases are notoriously difficult.[1]

One such case was State v. Fermanich.[2] The outcome in Fermanich ultimately turned on precedent, State v. Floyd, in which the Wisconsin Supreme Court held that an offender must receive credit for pre-trial confinement on charges that are dismissed but “read-in.”[3] An offender cannot be sentenced on a “read-in” charge; however, the circuit court may consider a read-in charge in determining a sentence on a charge for which an offender is actually convicted.[4] Interestingly, Floyd received little briefing in Fermanich but ended up being dispositive.[5]

The fact pattern in Fermanich was complicated, but it is necessary to understand the case. Over about two hours, Michael Fermanich stole and drove three trucks, “one after the other,” and led police officers on a chase.[6] He stole each truck in Langlade County, but he drove the third into Oneida County, where he was arrested.[7]

The State filed two cases, first in Oneida and then in Langlade, and bond was set in both.[8] In the Oneida case, bond was set at $10,000, which Fermanich did not pay.[9] In the Langlade case, Fermanich was technically released on a “signature bond”—i.e., Fermanich was not required to post any cash.[10] Even still, he remained in the Oneida County jail for 433 days because of the bond set in the Oneida case.[11] In a sense, the bond in the Langlade case was a moot issue given that Fermanich was going to remain in custody regardless.

Eventually, both cases were consolidated, and a single amended information with eight counts was filed in Langlade.[12] Fermanich pled no contest to three counts: Count 1, which had originally been brought in the Langlade case for stealing the first truck; and Counts 4 and 5, which had originally been brought in the Oneida case for stealing the third truck and then attempting to elude an officer.[13] The other five counts, three of which had originally been brought in the Oneida case, were dismissed but read in.[14]

Fermanich was sentenced to 18 months of initial confinement followed by 24 months of extended supervision on each of the three counts, each sentence to run concurrently (i.e., at the same time).[15] Accordingly, he needed credit on each count for the credit to matter in any practical sense; if he had been awarded credit only on two counts, he would still have had to serve the full sentence on the third count, so his total time in custody would not have been reduced.

Fermanich moved the circuit court to credit the 433 days, and the State agreed—but only in part.[16] The State acknowledged that Fermanich should receive credit on Counts 4 and 5 because those charges were originally brought in Oneida and Fermanich undeniably spent time in the Oneida jail because of them.[17] The parties disagreed, however, about how to treat the 433 days with respect to Count 1.[18] The State argued that none of the 433 days Fermanich spent in custody stemmed from Count 1 because that charge was originally brought in Langlade County, and in the Langlade case, Fermanich was released on a signature bond.[19] Accordingly, Fermanich was “free” to leave the State’s custody for purposes of the Langlade charge.[20]

The circuit court agreed with Fermanich, but the court of appeals reversed.[21] The court of appeals relied heavily on State v. Tuescher, a court of appeals decision that construed the phrase “course of conduct” in Wis. Stat. § 973.155(1)(a).[22] In that decision, the court of appeals held that “one sentence does not arise from the same course of conduct as another sentence unless the two sentences are based on the same specific acts.”[23] Applying this rule in Fermanich, the court of appeals noted that “[t]hese were separate specific acts—they were committed in different locations at different times targeting different trucks owned by different individuals . . . .”[24] Fermanich, in the court’s words, “could have reflected and stopped his conduct before he drove the third vehicle from Langlade . . . into Oneida . . . and then attempted to elude an officer.”[25] The court also concluded that Floyd had no bearing because, “[u]nlike in Floyd, Fermanich received credit for custody associated with the dismissed and read-in charges” on Counts 4 and 5—effectively, the court viewed Fermanich as trying to get double credit.[26]

The Wisconsin Supreme Court granted Fermanich’s petition for review and reversed in a 5-2 decision.[27] In the majority’s view, the decision in Floyd was controlling because three of the five dismissed but read-in counts originated in Oneida, and because they could be considered by the circuit court in imposing sentences. Consequently, the court held Fermanich was entitled to credit for the 433 days.[28]

Importantly, the majority did not analyze whether Floyd was correctly decided because the State had not asked the court to overrule Floyd; instead, the State had merely argued that Floyd’s holding was inapplicable.[29] The State argued that, unlike the fact pattern in Floyd, Fermanich was effectively seeking double credit: “Floyd does not control because Fermanich already received credit for the dismissed and read-in charges when the circuit court awarded him credit on the two Oneida County charges for which he was sentenced.”[30] The majority said the State “misread” Floyd; according to the majority, the reasoning of Floyd was not limited to its specific facts.[31]

The majority opinion was short, consisting of 17 paragraphs, and it did not address Tuescher. Accordingly, Tuescher remains binding precedent on the definition of “course of conduct”—although it should be considered cautiously in cases involving read-in counts.

Justice Rebecca Frank Dallet, however, wrote a solo concurrence to address Tuescher.[32] She concluded that Tuescher was wrongly decided because it “strayed a long way” from the text of Section 973.155(1)(a).[33] She indicated that all of Fermanich’s counts stemmed from the same “course of conduct” because the counts were a part of “the same criminal episode,” a theory rejected by the Tuescher court.[34] She concluded that in the “appropriate case,” the court should consider overruling Tuescher.[35]

Chief Justice Annette Kingsland Ziegler, joined by Justice Rebecca Grassl Bradley, dissented. In their view, Tuescher (and similar decisions) controlled, and Floyd, if applicable, should have been overruled.[36] They focused on the language, “offense for which the offender is ultimately sentenced,” in Wis. Stat. § 973.155(1)(a), reasoning that an offender is not sentenced (indeed, cannot be sentenced) for read-in counts.[37]

Ultimately, Fermanich is an important decision because it clarified Floyd. It also is important for what it did not hold. Tuescher was not overruled but remains binding precedent.


[1] State v. Harrison, 942 N.W.2d 310, 316 (Wis. Sup. Ct. 2020).

[2] State v. Fermanich, 991 N.W.2d 340 (Wis. Sup. Ct. 2023).

[3] State v. Floyd, 606 N.W.2d 155 (Wisc. Sup. Ct. 2000), abrogated on other grounds by State v. Straszkowski, 750 N.W.2d 835 (Wisc. Sup. Ct. 2008).

[4] Legal Terms, Dane Cnty. Dist. Att’y, (last visited Feb. 24, 2024).

[5] See Brief of Defendant-Respondent-Petitioner at 21–22, Fermanich, 991 N.W.2d 340 (No. 2021AP462-CR), available at; Reply Brief of Defendant-Respondent-Petitioner, at 10–11, Fermanich, 991 N.W.2d 340 (No. 2021AP462-CR), available at

[6] Fermanich, 991 N.W.2d at 341.

[7] Id.

[8] Id.

[9] Id.

[10] Id. at 342.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] State v. Fermanich, No. 2021AP462-CR, slip op. at 1 (Wis. Ct. App. Apr. 12, 2022) (per curiam), available at

[22] Id. at ¶¶18–19 (quoting State v. Tuescher, 595 N.W.2d 443 (Wis. Ct. App. 1999)).

[23] Id. at ¶19 (quoting Tuescher, 595 N.W.2d at 449).

[24] Id. at ¶20.

[25] Id.

[26] Id. at ¶28.

[27] Fermanich, 991 N.W.2d at 345.

[28] Id. at 344.

[29] Id.

[30] Id.

[31] Id.

[32] Id. at 346 (Dallet, J., concurring).

[33] Id.

[34] Id. (quoting Tuescher, 595 N.W.2d 443).

[35] Id. at 347.

[36] See, e.g., id. at 356.

[37] Id. at 355 (Ziegler, C.J., dissenting).

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