Prue v. State
In Prue v. State, 63 Wis. 2d 109, 114, 216 N.W.2d 43 (1974), the court interpreted the predecessor to 302.43, Wis. Stat. 53.43 (1973), as not applying to persons confined in jail as a condition of probation.
The court first considered Wis. Stat. 973.09(1) (1973) authorizing the court to place a convicted defendant on probation for a stated period after either withholding or imposing sentence and staying its execution, and 973.09(4) (1973) authorizing the court to require "as a condition of probation that the probationer be confined ... during such ... term of probation as the court specifies, but not to exceed one year." Prue, 63 Wis. 2d at 112-13.
The court observed that 973.09(4) (1973) did not use the term "sentenced" but rather "confined"; that 973.09(1) (1973) made clear distinctions between a sentence and probation; and that 973.09(4) (1973) did not mention good time or refer to 53.43 (1973). See Prue, 63 Wis. 2d at 112-14.
The court also considered the legislative history of 53.43 (1973) and policy arguments. See Prue, 63 Wis. 2d at 113-14.
In Prue v. State, the defendant was sentenced to two years in prison, execution of that sentence was stayed and he was placed on probation for one year with the condition he would spend the first six months in the county reforestation camp.
Under Wis. Stat. 56.07(9) (1973), persons "sentenced to such camp for less than one year or in lieu of a county jail sentence shall be subject to the same diminution of time as is provided in s. 53.43."
The court observed that a court has the authority to order good time when it imposes confinement in jail as a condition of probation, and that it may change the terms of probation under Wis. Stat. 973.09(3) (1973). See Prue, 63 Wis. 2d at 114.
This flexibility, the court stated, was important in order that probation be an effective tool for rehabilitation. See id.