¶ 53. (<dissenting). Circuit courts and the Department of Corrections deal with sentence credit every day in a variety of fact situations. Clarity and simplicity in computing sentence credit continues to escape us all. In July 2010, State v. Carter, 2010 WI 77, 327 Wis. 2d 1, 785 N.W.2d 516, a sentence credit case in which the State and the defendant agreed about the credit to be awarded, produced 5 opinions totaling more than 100 printed pages. Here we go once again!
¶ 54. In the present case, the dispute focuses on 189 days that the defendant served under his original sentence for aggravated battery. The majority opinion refuses to apply the clear text of Wis. Stat. § 973.04, renders § 973.04 surplusage, and violates Lamar's constitutional guarantee against double jeopardy. As a result of the majority opinion, Lamar, who has served 189 days in confinement for aggravated battery, will now serve those 189 days again for the same offense.1 "If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offence."2 I would apply Wis. Stat. §§ 973.04 and 973.155, and I would not punish Lamar twice for the same offense.
¶ 55. To help clarify the issue I set forth the timeline both in chart and bullet forms:
*562[[Image here]]
¶ 56. The following timeline more fully explains the chart:
*563• On March 23, 2006, Lamar was taken into custody for conduct leading to the aggravated battery and bail jumping charges.
• Lamar remained in custody for 177 days prior to his first sentencing.3
• On September 15, 2006, Lamar began serving his concurrent sentence for Count 1 (aggravated battery as a habitual offender) and Count 2 (misdemeanor bail jumping as a habitual offender). This period amounted to 189 days of incarceration.
• On March 23, 2007 Lamar completed serving his initial confinement punishment for Count 2. He remained incarcerated under the sentence for Count l.4
• On August 29, 2007, 159 days of incarceration later, Lamar successfully withdrew his guilty plea to Count 1. Count 3 was reinstated.
• Lamar remained incarcerated for an additional 127 days on Counts 1 and 3 until January 3, 2008, when he was sentenced on Counts 1 and 3.
*564I
¶ 57. The only statute explicitly referring to sentence credit when a sentence is vacated is Wis. Stat. § 973.04. This specific statute governs the disputed 189 days in the present case. The statute mandates that the Department of Corrections credit a defendant with confinement previously served for the same crime. The statute provides as follows:
973.04 Credit for imprisonment under earlier sentence for the same crime. When a sentence is vacated and a new sentence is imposed upon the defendant for the same crime, the department shall credit the defendant with confinement previously served.
¶ 58. The statute has three elements: (1) a sentence is vacated, (2) a new sentence is imposed, (3) for the same crime.
¶ 59. The instant case satisfies these three elements. Lamar's original sentence for Count 1 (aggravated battery with habitual offender penalty) was vacated. On January 3, 2008, a new sentence for Count 1 (aggravated battery without habitual offender penalty) was imposed.5 With the three statutory elements met in *565the present case, Wis. Stat. § 973.04 requires ("the department shall") that Lamar be credited with 189 days.
¶ 60. Wisconsin Stat. § 973.04 was enacted to be a post-sentencing statute. The statute is clear on its face. The present case meets the three elements. Accordingly, Lamar should be credited the 189 days he has previously served for the crime.
¶ 61. The majority does not adopt this view. Rather confusingly, the majority opinion grasps tightly to the idea that because Lamar's new sentence for Count 1 was imposed consecutively to any other sentence (that is, consecutive to Count 2 misdemeanor bail jumping), the 189 days Lamar spent incarcerated, chipping away at his original sentence for both Counts 1 and 2, never really happened. This post hoc interpretation rejects reality.
¶ 62. In effect, the majority is saying to Lamar: You know those 189 days that you (and everyone else) thought you were serving in prison for that aggravated battery as well as misdemeanor bail jumping? Well, they didn't happen. We're not going to count them for aggravated battery. We'll just start your punishment for that conduct over again from the beginning.
¶ 63. Yet during the 189 days at issue, both Lamar and the Department of Corrections viewed Lamar as serving time for aggravated battery as well as misdemeanor bail jumping. The majority opinion has retroactively changed what those 189 days represent. Under the majority's interpretation, the 189 days in custody are not "confinement previously served" for Count 1, *566falling under Wis. Stat. § 973.04; the majority has instead morphed these 189 days into custody "awaiting sentence" on Count 1.
¶ 64. As I see it, this interpretation is unreasonable, if not absurd. How can the court retroactively change the basis upon which a person was incarcerated when a new sentence for the same crime is subsequently imposed?
¶ 65. In future cases, when a sentence is vacated, the majority allows a defendant's confinement for the vacated sentence to be recast as "presentence time" and governed by Wis. Stat. § 973.155. Thus the majority's interpretation seems to render Wis. Stat. § 973.04 surplusage.6
II
¶ 66. Casting Wis. Stat. § 973.04 aside, the majority opinion turns to § 973.155(l)(a)3., a more general statute governing sentence credit.7 This statute governs credit for presentence confinement and provides as follows in pertinent part:
973.155 Sentence credit. (1) (a) A convicted offender shall be given credit toward the service of his or her sentence for all days spent in custody in connection *567with the course of conduct for which sentence was imposed. As used in this subsection, "actual days spent in custody" includes, without limitation by enumeration, confinement related to an offense for which the offender is ultimately sentenced, or for any other sentence arising out of the same course of conduct, which occurs:
1. While the offender is awaiting trial;
2. While the offender is being tried; and
3. While the offender is awaiting imposition of sentence after trial.
¶ 67. According to the majority opinion, Lamar falls within Wis. Stat. § 973.155(l)(a)3.: credit is given "for custody '[wjhile the offender is awaiting imposition of sentence after trial.'" Majority op., ¶ 32 (quoting Wis. Stat. § 973.155).
¶ 68. The majority explains that the 189 days in question amounts to time "[Lamar] was awaiting sentencing." The majority opinion views the 189 days as "served before the imposition of his second sentencing on January 3, 2008—that is, while he was awaiting sentencing." Majority op., ¶ 32.
¶ 69. The problem with this approach is that , the 189 days in question were not days Lamar spent in custody awaiting for his new sentence for Count I. These 189 days were days spent in prison under a sentence for aggravated battery before Lamar withdrew his guilty plea. Those 189 days were spent serving time for Count 1 concurrently with serving time for Count 2. The majority's recasting of the time Lamar served under a vacated sentence as "presentence time" is a fiction that misrepresents the reason Lamar was in prison.
¶ 70. Adhering to this fiction that the 189 days were presentence time, the majority opinion acknowl*568edges that Lamar is deserving of sentence credit for the 189 days presentence time under Wis. Stat. § 973.155. Nevertheless, the majority opinion declares that State v. Boettcher, 144 Wis. 2d 86, 423 N.W.2d 533 (1988), prohibits Lamar from receiving credit.
¶ 71. The majority opinion centers most of its rationale against granting Lamar sentence credit for the 189 days in question on the fact that the new sentence imposed for Count 1, after the original sentence was vacated, was ordered to run consecutively to any other sentence, namely consecutively to Count 2, misdemeanor bail jumping. This is where the majority's reliance on State v. Boettcher comes in. I turn to Boettcher.
¶ 72. In Boettcher, 144 Wis. 2d at 87, the court concluded 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 . . . [cjredit 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."
¶ 73. The majority opinion errs in applying Boettcher to the 189 days. The majority opinion applies Boettcher while focusing on implementing the circuit court's second sentence for Count 1 as consecutive to the sentence for Count 2. In doing so, the majority opinion ignores—pays no heed to—the circuit court's original sentence for Count 1 to be concurrent with the sentence for Count 2.
¶ 74. Lamar applies Boettcher properly. Lamar does not dispute that the 177 days he remained in custody (March 23, 2006—September 15, 2006) before the first sentencing are presentence confinement days. As such, those 177 days should, because of the new consecu*569tive sentence, be credited under Wis. Stat. § 973.155 and Boettcher only to the sentence first imposed, namely the sentence for Count 2.
¶ 75. Lamar reasons, however, that the 189 days he served after the original sentencing for both Counts 1 and 2, which according to the original sentence run concurrently, are not presentence days, and do not fall within § 973.155 or Boettcher. I agree with Lamar's reasoning.
¶ 76. Lamar's interpretation comports with the texts of both statutes and Boettcher. Lamar gets credit for presentence confinement, in accordance with Wis. Stat. § 973.155. Applying Boettcher, he gets credit for the presentence confinement on only the sentence first imposed, namely Count 2. Because the new sentence was ordered consecutive to Count 2, the initial 177 days in custody are rightfully credited only to Count 2. But because Lamar's sentence on Count 1 was vacated and a new sentence was imposed for the same crime, under § 973.04 Lamar must get credit for the punishment he has already served for that crime, namely the 189 days he served under the original sentence for Count 1.
¶ 77. Lamar's interpretation, which I adopt, harmonizes Wis. Stat. § 973.04 and § 973.155, applies both statutes to the facts of the present case, applies the Boettcher rule, and honors the intent of both the original and second sentencing circuit courts. Accordingly, I would grant Lamar the 189 days sentence credit.
Ill
¶ 78. My interpretation of the sentencing credit statutes does not raise a double jeopardy issue. I conclude that the majority opinion's failure to grant Lamar sentencing credit for the 189 days in question violates his constitutional guarantees against double jeopardy.
*570¶ 79. I join the majority (majority op., ¶ 45) in looking to Ex parte Lange, 85 U.S. 163 (1873), in which the United States Supreme Court wrote:
If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offence. And though there have been nice questions in the application of this rule to cases in which the act charged was such as to come within the definition of more than one statutory offence, or to bring the party within the jurisdiction of more than one court, there has never been any doubt of its entire and complete protection of the party when a second punishment is proposed in the same court, on the same facts, for the same statutory offence.8
¶ 80. Lamar was incarcerated for the 189 days in question as punishment for his conduct in committing aggravated battery. He is now to be incarcerated as punishment for the same conduct, aggravated battery, without credit for the 189 days. The punishment exacted was not "fully 'credited' in imposing sentence upon a new conviction for the same offense."9
¶ 81. Lamar's fundamental constitutional rights have been violated by the majority's failure to grant sentence credit.
¶ 82. For the foregoing reasons, I dissent.
¶ 83. I am authorized to state that Justice ANN WALSH BRADLEY joins this dissent.As a result of the majority's interpretation, Lamar will serve 15 years plus 189 days as punishment for aggravated battery. Aggravated battery (Wis. Stat. § 940.19(5)) is a Class E felony, which carries a penalty of "a fine not to exceed $50,000 or imprisonment not to exceed 15 years, or both." Wis. Stat. § 939.50(3)(e). The majority's interpretation violates both the maximum penalty prescribed by the legislature and the double jeopardy guarantee.
Ex parte Lange, 85 U.S. 163, 168 (1873).
Lamar does not argue that he should be entitled to 177 days credit on his new sentence for Count 1. The 177 days were presentence time; he remained in custody awaiting the imposition of his first sentence. These days fall within Wis. Stat. § 973.155 and State v. Boettcher, 144 Wis. 2d 86, 423 N.W.2d 533 (1988), which is discussed later.
Lamar asserts that "Wis. Stat. § 973.04 entitles him to credit for all confinement served under the original sentence for aggravated battery against the sentence later re-imposed by Judge Fiorenza for the same offense. This period is from the date of sentencing, September 15, 2006, to the date the sentence was vacated on August 29, 2007. However, applying Wis. Stat. § 973.155, the trial court granted credit for a portion of this time, from March 23, 2007 to August 29, 2007. Therefore the remaining time at issue is 189 days, from September 15, 2006 to March 23, 2007." Reply Brief of Defendant-Appellant-Petitioner at 1, n.2.
No one argues that the two charges labeled Count 1 are for different crimes. Although the original sentence for Count 1 was for the aggravated battery conviction with the habitual offender penalty, and the new sentence later imposed was for aggravated battery without the habitual offender penalty, both sentences arose out of the same crime—aggravated battery. For the purposes of determining the correct sentencing credit and the defendant's fundamental constitutional rights, it is immaterial that the increased penalty for habitual criminality under Wis. Stat. § 939.62 was used in the original sentence but not the other. The addition of the increased penalty does not change the *565nature of the underlying crime as to permit an understanding that each sentence represented time served for a separate and independent crime. Both sentences were imposed for the same criminal conduct.
Perhaps the majority is limiting the application of Wis. Stat. § 973.04 to cases in which the second sentence (imposed after the first sentence is vacated) is concurrent with all charges in the first sentence. That interpretation reads many words into the simple, easy-to-apply-as-written text of § 973.04.
Wisconsin Stat. § 973.155 was patterned after 18 U.S.C. § 3568 (1977), which is entitled "Effective date of sentence; credit for time in custody prior to the imposition of the sentence." Wisconsin Stat. § 973.155, like 18 U.S.C. § 3568, addresses presentence custody.
Ex parte Lange, 85 U.S. 163, 168 (1873).
North Carolina v. Pearce, 395 U.S. 711, 718-19 (1969), overruled in part on other grounds by Alabama v. Smith, 490 U.S. 794 (1989).