Background
Steven Zastrow was on extended supervision for prior forgery-related convictions when he was arrested in December 2018 and charged with burglary and other offenses. Those charges prompted an extended-supervision hold and revocation proceedings. After revocation, Zastrow was returned to prison on October 23, 2019, to serve the revocation sentences in the earlier cases.
A jury convicted Zastrow in the new case, but the circuit court later vacated those convictions and granted a new trial. The Division of Hearings and Appeals subsequently vacated the extended-supervision revocation, and Zastrow was released from prison in April 2023. After a second jury convicted him of burglary and two counts of concealing stolen property, the circuit court sentenced him and awarded credit for custody before his return to prison and for custody following the second verdict.
Zastrow sought another 1,275 days of credit for the period from October 23, 2019, through April 20, 2023. He argued that vacating the revocation rendered it a nullity, leaving that custody connected solely to the conduct underlying his new convictions. The circuit court denied the motion.
The Court’s Holding
The Wisconsin Court of Appeals affirmed. Applying State v. Beets, the court held that revocation of Zastrow’s extended supervision and his return to prison severed the factual connection between his custody and the charges in the new case. From that point forward, his confinement was attributable to the sentences imposed for his earlier forgery-related convictions.
The Division of Hearings and Appeals’ later decision to vacate the revocation did not retroactively restore the severed factual connection. The nature of Zastrow’s custody during the disputed period remained tied to the earlier sentences, which themselves had never been vacated. The court rejected his reliance on decisions concerning vacated sentences and unapplied presentence credit because those cases did not override Beets or involve the same circumstances.
The court noted that if Zastrow’s extended supervision in the forgery cases were revoked again, the disputed 1,275 days could be credited in those cases. They could not, however, be applied to the sentences imposed in this case.
Key Takeaways
- Once revocation occurs and a defendant begins serving a revocation sentence, that custody’s factual connection to an unrelated pending case is severed under State v. Beets.
- Later vacatur of the revocation does not retroactively convert time served on the revocation sentences into custody connected with the new offenses.
- Credit for the disputed custody may remain available if the defendant is later revoked again in the original cases, but it cannot be transferred to sentences in a different case lacking the required factual connection.
Why It Matters
The decision addresses a previously unresolved Wisconsin fact pattern: whether vacating an extended-supervision revocation retroactively changes the sentence-credit consequences of time already served following that revocation. The court concluded that it does not.
For practitioners, the decision underscores that sentence credit turns on the factual basis for custody during the relevant period. A later change to the revocation decision does not necessarily rewrite that historical connection or permit credit against an unrelated sentence.