A law providing state-wide venue for certain sex crimes would be unconstitutional. 60 Atty. Gen. 450.
The absolute prohibition of paralegal-conducted jail interviews is an unjustifiable restriction of inmates’ due process rights of access to the courts. Restrictions on such interviews must be justified by a compelling and overwhelming state interest. 64 Atty. Gen. 152.
The trial court’s wholesale exclusion of the defendant’s proffered expert and lay testimony regarding post-traumatic stress disorder from the guilt phase of a murder trial without valid justification violated the defendant’s right to present a defense and to testify on the defendant’s own behalf. Morgan v. Krenke, 72 F. Supp. 2d 980 (1999). I,8Prosecutions; double jeopardy; self-incrimination; bail; habeas corpus. Section 8. [As amended Nov. 1870, April 1981, and April 2023] I,8(1)(1) No person may be held to answer for a criminal offense without due process of law, and no person for the same offense may be put twice in jeopardy of punishment, nor may be compelled in any criminal case to be a witness against himself or herself. I,8(2)(2) All persons, before conviction, shall be eligible for release under reasonable conditions designed to assure their appearance in court, protect members of the community from serious harm as defined by the legislature by law, or prevent the intimidation of witnesses. Monetary conditions of release may be imposed at or after the initial appearance only upon a finding that there is a reasonable basis to believe that the conditions are necessary to assure appearance in court, or if the person is accused of a violent crime as defined by the legislature by law, only upon a finding that there is a reasonable basis to believe that the conditions are necessary based on the totality of the circumstances, taking into account whether the accused has a previous conviction for a violent crime as defined by the legislature by law, the probability that the accused will fail to appear in court, the need to protect members of the community from serious harm as defined by the legislature by law, the need to prevent the intimidation of witnesses, and the potential affirmative defenses of the accused. The legislature may authorize, by law, courts to revoke a person’s release for a violation of a condition of release. I,8(3)(3) The legislature may by law authorize, but may not require, circuit courts to deny release for a period not to exceed 10 days prior to the hearing required under this subsection to a person who is accused of committing a murder punishable by life imprisonment or a sexual assault punishable by a maximum imprisonment of 20 years, or who is accused of committing or attempting to commit a felony involving serious bodily harm to another or the threat of serious bodily harm to another and who has a previous conviction for committing or attempting to commit a felony involving serious bodily harm to another or the threat of serious bodily harm to another. The legislature may authorize by law, but may not require, circuit courts to continue to deny release to those accused persons for an additional period not to exceed 60 days following the hearing required under this subsection, if there is a requirement that there be a finding by the court based on clear and convincing evidence presented at a hearing that the accused committed the felony and a requirement that there be a finding by the court that available conditions of release will not adequately protect members of the community from serious bodily harm or prevent intimidation of witnesses. Any law enacted under this subsection shall be specific, limited and reasonable. In determining the 10-day and 60-day periods, the court shall omit any period of time found by the court to result from a delay caused by the defendant or a continuance granted which was initiated by the defendant. I,8(4)(4) The privilege of the writ of habeas corpus shall not be suspended unless, in cases of rebellion or invasion, the public safety requires it. [1869 J.R. 7, 1870 J.R. 3, 1870 c. 118, vote Nov. 1870; 1979 J.R. 76, 1981 J.R. 8, vote April 1981; 2021 J.R. 6, 2023 J.R. 2, vote April 2023] double jeopardy
When, after a plea bargain, the state filed an amended complaint to which the defendant pled guilty, but the court refused to accept the plea and reinstated the complaint then later reinstated the amended complaint, the defendant could not claim double jeopardy. Salters v. State, 52 Wis. 2d 708, 191 N.W.2d 19 (1971). The defense of double jeopardy is nonjurisdictional and is waived by a guilty plea intelligently and voluntarily entered. Nelson v. State, 53 Wis. 2d 769, 193 N.W.2d 704 (1972). A person is not put in double jeopardy because of convictions in separate trials of resisting an officer and of battery to an officer, even though the acts charged arose from the same incident. State v. Elbaum, 54 Wis. 2d 213, 194 N.W.2d 660 (1972). When a defendant is tried for one offense and convicted of a lesser included offense, the defendant is not placed in double jeopardy. Dunn v. State, 55 Wis. 2d 192, 197 N.W.2d 749 (1972). A defendant is not subjected to double jeopardy when brought to trial a second time after a mistrial is declared. State v. Elkinton, 56 Wis. 2d 497, 202 N.W.2d 28 (1972). A defendant is not subjected to double jeopardy by being charged with both theft and burglary. An acquittal on one charge does not amount to collateral estoppel on the other. Hebel v. State, 60 Wis. 2d 325, 210 N.W.2d 695 (1973). A defendant convicted of false imprisonment and rape committed in Waukesha County was not subjected to double jeopardy by a second conviction for false imprisonment of the same victim in Milwaukee County because the facts supported two separate prosecutions. Baldwin v. State, 62 Wis. 2d 521, 215 N.W.2d 541 (1974). When a trial is terminated prior to a determination of guilt or innocence, the double jeopardy clause does not prevent a retrial if there is a “manifest necessity” to terminate the proceedings because the indictment or information is fatally defective and the trial court lacks jurisdiction to try the case. State v. Russo, 70 Wis. 2d 169, 233 N.W.2d 485 (1975). A defendant convicted of fleeing an officer in Portage County was not put in double jeopardy by a second conviction for fleeing a Wood County officer when the defendant crossed the county line during a chase. State v. Van Meter, 72 Wis. 2d 754, 242 N.W.2d 206 (1976). When the perjured testimony of a key state witness was not offered by the prosecution for the purpose of provoking a mistrial and thus avoiding a probable acquittal, a retrial after the conviction was vacated did not place the defendant in double jeopardy. Day v. State, 76 Wis. 2d 588, 251 N.W.2d 811 (1977). Neither the double jeopardy clause nor the doctrine of collateral estoppel precludes parole revocation on the grounds of a parolee’s conduct related to an alleged crime for which the parolee is charged and acquitted. State ex rel. Flowers v. DHSS, 81 Wis. 2d 376, 260 N.W.2d 727 (1978). When a mistrial requested by the defendant is justified by prosecutorial or judicial overreaching intended to prompt the request, the double jeopardy clause bars reprosecution. State v. Harrell, 85 Wis. 2d 331, 270 N.W.2d 428 (Ct. App. 1978). The double jeopardy provisions of the U.S. and Wisconsin Constitutions are identical in scope and purpose. U.S. Supreme Court decisions control both provisions. Discussing multiplicitous rape charges. Harrell v. State, 88 Wis. 2d 546, 277 N.W.2d 462 (Ct. App. 1979). When the court of appeals reversed the defendant’s conviction due to insufficiency of the evidence, the double jeopardy clause did not bar the supreme court from reviewing the case. State v. Bowden, 93 Wis. 2d 574, 288 N.W.2d 139 (1980). When a crime is against persons rather than property, there are as many offenses as victims. State v. Rabe, 96 Wis. 2d 48, 291 N.W.2d 809 (1980). A prosecutor’s repeated failure to disclose prior statements of witnesses was not prosecutorial overreaching that would bar reprosecution after the defendant moved for a mistrial. State v. Copening, 100 Wis. 2d 700, 303 N.W.2d 821 (1981). The double jeopardy clause did not bar retrial when the judge declared a mistrial due to jury deadlock. State v. DuFrame, 107 Wis. 2d 300, 320 N.W.2d 210 (Ct. App. 1982). The double jeopardy clause did not bar prosecution of a charge after it was considered as evidence of character in sentencing the defendant on a prior unrelated conviction. State v. Jackson, 110 Wis. 2d 548, 329 N.W.2d 182 (1983). Without clear legislative intent to the contrary, multiple punishment may not be imposed for felony-murder and the underlying felony. State v. Gordon, 111 Wis. 2d 133, 330 N.W.2d 564 (1983). Reimposition of a sentence after a defendant has been placed on probation, absent a violation of a probation condition, violates the double jeopardy clause. State v. Dean, 111 Wis. 2d 361, 330 N.W.2d 630 (Ct. App. 1983). Governmental action is punishment under the double jeopardy clause if its principal purpose is punishment, retribution, or deterrence. When the principal purpose is nonpunitive, that a punitive motive may also be present does not make the action punishment. State v. Killebrew, 115 Wis. 2d 243, 340 N.W.2d 470 (1983). When probation was conditioned on the defendant’s voluntary commitment to a mental hospital but the hospital refused admittance, the court properly modified the original sentence by imposing a new sentence of three years’ imprisonment. Double jeopardy was not violated. State v. Sepulveda, 120 Wis. 2d 231, 353 N.W.2d 790 (1984). The double jeopardy clause was not violated when the trial court imposed illegal sentences then, in resentencing on a valid conviction, imposed an increased sentence. State v. Martin, 121 Wis. 2d 670, 360 N.W.2d 43 (1985). When police confiscated a large quantity of drugs from an empty house and the next day searched the defendant upon the defendant’s return home confiscating a small quantity of the same drugs, the defendant’s conviction for a lesser-included offense of possession and greater offense of possession with intent to deliver did not constitute double jeopardy. State v. Stevens, 123 Wis. 2d 303, 367 N.W.2d 788 (1985). The double jeopardy clause was not violated by a state criminal prosecution for conduct that was the basis of a prior remedial civil forfeiture proceeding by a municipality. Collateral estoppel does not bar a criminal prosecution following a guilty plea to a violation of municipal ordinances, even if both actions arise from the same transaction. State v. Kramsvogel, 124 Wis. 2d 101, 369 N.W.2d 145 (1985). See also State v. Thierfelder, 174 Wis. 2d 213, 495 N.W.2d 669 (1993). A person may be convicted under s. 943.20 (1) (a) for concealing property and be separately convicted for transferring that property. State v. Tappa, 127 Wis. 2d 155, 378 N.W.2d 883 (1985). When the trial court declined to acquit the defendant but dismissed the criminal information after the jury deadlocked, double jeopardy barred the state’s appeal of the dismissal. State v. Turley, 128 Wis. 2d 39, 381 N.W.2d 309 (1986). The defendant waived a double jeopardy claim when failing to move for a dismissal of the charges at a retrial following a mistrial to which the defendant objected. State v. Mink, 146 Wis. 2d 1, 429 N.W.2d 99 (Ct. App. 1988). A criminal prosecution for escape is not barred by the double jeopardy clause when commenced following an administrative disciplinary proceeding. State v. Quiroz, 149 Wis. 2d 691, 439 N.W.2d 621 (Ct. App. 1989). A court may not, after accepting a guilty plea and ordering a presentence investigation, absent fraud or a party’s intentionally withholding material information, vacate the plea and order reinstatement of the original information without violating the double jeopardy clause. State v. Comstock, 168 Wis. 2d 915, 485 N.W.2d 354 (1992). For a defendant to invoke double jeopardy protection after successfully moving for a mistrial, the prosecutor must have acted with intent to subvert the double jeopardy protection to gain another chance to convict or to harass the defendant with multiple prosecutions. State v. Quinn, 169 Wis. 2d 620, 486 N.W.2d 542 (Ct. App. 1992). Charges are multiplicitous if they are identical both in law and fact or if the legislature intended the allowable unit of prosecution for the offense to be a single count. State v. Davis, 171 Wis. 2d 711, 492 N.W.2d 174 (Ct. App. 1992). Jeopardy attaches when the jury is sworn. Granting a mistrial, dismissing the jury, and convening a second jury is prohibited absent “manifest necessity.” Granting a mistrial due to the unavailability of a prosecution witness is to be given the most stringent scrutiny. Alternatives to mistrials are to be considered. State v. Barthels, 174 Wis. 2d 173, 495 N.W.2d 341 (1993). First offender driving while intoxicated prosecution is civil, and jeopardy does not attach to prevent a subsequent criminal prosecution. State v. Thierfelder, 174 Wis. 2d 213, 495 N.W.2d 669 (1993). The state supreme court will not interpret Wisconsin’s double jeopardy clause to be broader than the U.S. Supreme Court’s interpretation of the federal clause. State v. Kurzawa, 180 Wis. 2d 502, 509 N.W.2d 712 (1994). A criminal conviction for violating terms of bail resulting from the conviction for another crime committed while released on bail does not constitute double jeopardy. State v. West, 181 Wis. 2d 792, 512 N.W.2d 207 (Ct. App. 1993). Collateral estoppel is incorporated into the protection against double jeopardy and provides that when an ultimate issue of fact has once been determined, that issue cannot be relitigated between the same parties. The test is whether a rational jury could have grounded its verdict upon a separate issue. State v. Jacobs, 186 Wis. 2d 219, 519 N.W.2d 746 (Ct. App. 1994). To determine whether charges are improperly multiplicitous, the following two-prong test is applied: 1) whether the charged offenses are identical in law and fact; and 2) the legislative intent as to the allowable unit of prosecution for the offense. State v. Richter, 189 Wis. 2d 105, 525 N.W.2d 168 (Ct. App. 1994). An acquittal does not prove innocence. Evidence of a crime for which a defendant was acquitted may be offered to show motive, plan, and other matters authorized under s. 904.04 if a jury could find by a preponderance of the evidence that the defendant committed the other act. State v. Landrum, 191 Wis. 2d 107, 528 N.W.2d 36 (Ct. App. 1995). The extension of a previously entered juvenile dispositional order due to the juvenile’s participation in an armed robbery while subject to the order was not a “disposition” of the armed robbery charge. Subsequent prosecution of the armed robbery charge in adult court did not violate s. 48.39 [now s. 938.39] or the protection against double jeopardy. State v. Stephens, 201 Wis. 2d 82, 548 N.W.2d 108 (Ct. App. 1996), 95-2103. Whether a statute is criminal or civil for purposes of double jeopardy analysis depends on whether the legislature intended the statute to provide a remedial civil sanction and whether there are aspects of the statute that are so punitive either in effect or nature as to render the overall purpose punishment. State v. McMaster, 206 Wis. 2d 30, 556 N.W.2d 673 (1996), 95-1159. Student disciplinary action under University of Wisconsin system administrative rules does not constitute punishment triggering double jeopardy protection. City of Oshkosh v. Winkler, 206 Wis. 2d 538, 557 N.W.2d 464 (Ct. App. 1996), 96-0967. Service in prison of time successfully served on parole and forfeited through revocation does not constitute punishment within the meaning of the double jeopardy clause. State ex rel. Ludtke v. DOC, 215 Wis. 2d 1, 572 N.W.2d 864 (Ct. App. 1997), 96-1745. A defendant may be charged and convicted of multiple crimes arising out of one criminal act only if the legislature intends it. When one charged offense is not a lesser included offense of the other, there is a presumption that the legislature intended to allow punishment for both offenses, which is rebutted only if other factors clearly indicate a contrary intent. State v. Lechner, 217 Wis. 2d 392, 576 N.W.2d 912 (1998), 96-2830. Whether a single course of conduct has been impermissibly divided into separate violations of the same statute requires consideration of whether each offense is identical in fact and law and whether the legislature intended to allow multiple convictions. For each victim there is generally a separate offense. Legislative intent is shown by whether the statute punishes an individual for each act or for the course of conduct those acts constitute. State v. Lechner, 217 Wis. 2d 392, 576 N.W.2d 912 (1998), 96-2830. The protection against double jeopardy embraces a defendant’s right of having the defendant’s trial completed by a particular tribunal. When the state moves for a mistrial over the objections of the defense, the trial court may not grant the motion unless there is a manifest necessity for the act. State v. Collier, 220 Wis. 2d 825, 584 N.W.2d 689 (Ct. App. 1998), 97-2589. The double jeopardy clause prevented retrial when there was no motion for a mistrial but prosecutorial misconduct, the motivation for and effect of which were not known to the defendant at trial, had been committed. State v. Lettice, 221 Wis. 2d 69, 585 N.W.2d 171 (Ct. App. 1998), 97-3708. Multiple criminal punishments are appropriate for multiple acts, but not multiple thoughts. Multiple punishments for a single act of enticement when the defendant intended to commit multiple illegal acts was not allowable. State v. Church, 223 Wis. 2d 641, 589 N.W.2d 638 (Ct. App. 1998), 97-3140. If the legislature unambiguously has enacted two distinct prohibitions, each requiring proof of an element the other does not, the Blockburger, 284 U.S. 299 (1932), presumption of intent to allow multiple punishment applies. But, when the language of the statute is ambiguous, the rule of lenity applies, requiring resolving the ambiguity against allowing multiple punishment. State v. Church, 223 Wis. 2d 641, 589 N.W.2d 638 (Ct. App. 1998), 97-3140. Double jeopardy was not violated when the trial court realized it made an error in speech in pronouncing sentence and took immediate steps to correct the sentence before the judgment was entered into the record. State v. Burt, 2000 WI App 126, 237 Wis. 2d 610, 614 N.W.2d 42, 99-1209. Double jeopardy prevents a court that, under a mistaken view of the law, entered a valid concurrent sentence from revising the sentence three months later to be a consecutive sentence. State v. Willett, 2000 WI App 212, 238 Wis. 2d 621, 618 N.W.2d 881, 99-2671. A defendant was not subjected to double jeopardy when, after a presentence investigation following a no contest plea, the court took the defendant’s plea for a second time and engaged the defendant in a colloquy to determine if the plea was knowing and intelligent. For double jeopardy to apply, an acquittal or dismissal followed by a second prosecution for the same offense is required. State v. Clark, 2000 WI App 245, 239 Wis. 2d 417, 620 N.W.2d 435, 00-0932. Issue preclusion does not bar the prosecution of a defendant for perjury who was tried and acquitted on a single issue when newly discovered evidence suggests that the defendant falsely testified on the issue. The state must show that: 1) the evidence came to the state’s attention after trial; 2) the state was not negligent in failing to discover the evidence; 3) the evidence is material to the issue; and 4) the evidence is not merely cumulative. State v. Canon, 2001 WI 11, 241 Wis. 2d 164, 622 N.W.2d 270, 98-3519. When a defendant claims the state did not present enough evidence at trial to support splitting a course of conduct into multiple violations of the same statute, a multiplicity objection is waived if it is not raised prior to the time the case is submitted to the jury. State v. Koller, 2001 WI App 253, 248 Wis. 2d 259, 635 N.W.2d 838, 99-3084. When a defendant repudiates a negotiated plea agreement on the ground that it contains multiplicitous counts, the defendant materially and substantially breaches the agreement. When an accused successfully challenges a plea to and a conviction on multiplicity grounds and the information has been amended pursuant to a negotiated plea agreement by which the state made charging concessions, ordinarily the remedy is to reverse the convictions and sentences, vacate the plea agreement, and reinstate the original information, but a different remedy may be appropriate. State v. Robinson, 2002 WI 9, 249 Wis. 2d 553, 638 N.W.2d 564, 00-2435. A court’s correction of an invalid sentence by increasing the punishment does not constitute double jeopardy; the initial sentence being invalid, the second, more severe sentence is the only valid sentence imposed. State v. Helm, 2002 WI App 154, 256 Wis. 2d 285, 647 N.W.2d 405, 01-2398. If a defendant makes a fraudulent representation to the court, which the court accepts and relies upon in granting a sentence, the court may later declare the sentence void. Double jeopardy does not bar a subsequently increased sentence. State v. Jones, 2002 WI App 208, 257 Wis. 2d 163, 650 N.W.2d 844, 01-2969. There is a spectrum of deference that appellate courts may apply to trial court findings of mistrials ranging from strictest scrutiny to the greatest deference, depending on the circumstances. However, even if the mistrial order is entitled to great deference, the reviewing court must find that the trial judge exercised sound discretion in concluding that the state satisfied its burden of showing a manifest necessity for the mistrial. State v. Seefeldt, 2003 WI 47, 261 Wis. 2d 383, 661 N.W.2d 822, 01-1969. Trial courts may correct obvious errors in sentencing when it is clear that a good faith mistake was made in an initial sentencing pronouncement, the court promptly recognizes the error, and the court, by reducing an erroneous original sentence on one count and increasing the original sentence on another, seeks to impose a lawfully structured sentence that achieves the overall disposition that the court originally intended. State v. Gruetzmacher, 2004 WI 55, 271 Wis. 2d 585, 679 N.W.2d 533, 02-3014. In a multi-count trial, if the defendant is convicted of one or more counts and acquitted of one or more counts, and the defendant successfully appeals the conviction or convictions, the acquittals pose no direct bar to retrying the defendant. Rather, acquittal may indirectly impact the state’s ability to retry the defendant under collateral estoppel principles. State v. Henning, 2004 WI 89, 273 Wis. 2d 352, 681 N.W.2d 871, 02-1287. Retrial is barred when a defendant moves for and obtains a mistrial due to prosecutorial overreaching when the prosecutor intentionally attempts to prejudice the defendant or create another chance to convict. A police officer’s testimony that forms the basis of a mistrial will not be imputed to the prosecutor in the absence of evidence of collusion by the prosecutor’s office intended to provoke the defendant to move for a mistrial and does not constitute prosecutorial overreaching barring a retrial. State v. Jaimes, 2006 WI App 93, 292 Wis. 2d 656, 715 N.W.2d 669, 05-1511. A guilty plea waives a multiplicity claim anytime the claim cannot be resolved on the record, regardless whether a case presents on direct appeal or collateral attack. State v. Kelty, 2006 WI 101, 294 Wis. 2d 62, 716 N.W.2d 886, 03-3055. The defendant’s argument that the defendant’s conviction on two bail-jumping counts was multiplicitous because the preliminary hearings at which the defendant failed to appear were scheduled for the same time and the defendant had signed only one bond for the two underlying cases failed because the counts were different in fact. Proof of notification and failure to appear in one case would not prove notification and failure to appear in the other, making the two charges different in nature and therefore different in fact. State v. Eaglefeathers, 2009 WI App 2, 316 Wis. 2d 152, 762 N.W.2d 690, 07-0845. Multiple punishments may not be imposed for charges that are identical in law and fact unless the legislature intended to impose such punishments. An “elements-only” test, to determine whether charges are identical in law and fact, is the first prong of a multiplicity analysis. Offenses with elements identical in law and fact establish a presumption that the legislature did not intend to permit multiple punishments. Offenses with elements that differ in law or fact establish a presumption that the legislature did intend to permit multiple punishments. State v. Patterson, 2010 WI 130, 329 Wis. 2d 599, 790 N.W.2d 909, 08-1968. Regardless of the outcome of the “elements-only” test, the court proceeds to discern legislative intent. Operating under the presumption established under the first prong, the court then proceeds in a four-factor analysis to determine whether the legislature intended to permit multiple punishments for the offenses in question, examining: 1) all relevant statutory language; 2) the legislative history and context of the statutes; 3) the nature of the proscribed conduct; and 4) the appropriateness of multiple punishments for the defendant’s conduct. State v. Patterson, 2010 WI 130, 329 Wis. 2d 599, 790 N.W.2d 909, 08-1968. In any challenge to a law on double jeopardy and ex post facto grounds, the threshold question is whether the ordinance is punitive, as both clauses apply only to punitive laws. Courts employ a two-part “intent-effects” test to answer whether a law applied retroactively is punitive and, therefore, an unconstitutional violation of the double jeopardy and ex post facto clauses. If the intent was to impose punishment, the law is considered punitive and the inquiry ends there. If the intent was to impose a civil and nonpunitive regulatory scheme, the court must determine whether the effects of the sanctions imposed by the law are so punitive as to render them criminal. City of South Milwaukee v. Kester, 2013 WI App 50, 347 Wis. 2d 334, 830 N.W.2d 710, 12-0724. A per se rule no longer exists prohibiting a court from increasing a defendant’s sentence after the defendant has begun to serve the sentence. If a defendant has a legitimate expectation of finality in the sentence, then an increase in that sentence is prohibited by the double jeopardy clause. A significant factor in determining that the circuit court acted appropriately in resentencing the defendant is whether the justice system as a whole has not yet begun to act upon the circuit court’s sentence. State v. Robinson, 2014 WI 35, 354 Wis. 2d 351, 847 N.W.2d 352, 11-2833. The circuit court must exercise sound discretion in declaring a mistrial. Sound discretion requires that the circuit court ensure that the record reflects that there is an adequate basis for a finding of manifest necessity. State v. Troka, 2016 WI App 35, 369 Wis. 2d 193, 880 N.W.2d 161, 14-2470. When a jury, instructed on both second-degree and third-degree sexual assault and after deliberation, sent a note stating that all jurors “agree on not guilty for the second degree,” but “are hung on the third degree” and the court concluded the jury was deadlocked and ordered a mistrial, the state was not prevented from retrying the second-degree charge. Blueford, 566 U.S. 599 (2012), stands for the proposition that a jury’s expression of agreement at a certain point in time is not an acquittal if the jury was free to reconsider its decision. The jury’s note was not a resolution of some or all of the factual elements of second-degree sexual assault. Because the jury was free to reconsider its currently expressed view on the second-degree charge, the jury’s note was not a verdict of acquittal. State v. Alvarado, 2017 WI App 53, 377 Wis. 2d 710, 903 N.W.2d 122, 16-0142. For the purposes of determining whether a crime is a lesser included offense because it is different in fact from another crime based on a subset of a defendant’s many acts, the state must give the circuit court a basis for differentiating the defendant’s acts with respect to the two crimes at issue. State v. Kloss, 2019 WI App 13, 386 Wis. 2d 314, 925 N.W.2d 563, 18-0651. When the state charges a defendant in a subsequent prosecution for conduct the defendant contends overlaps the first prosecution’s timeframe, courts may examine the entire record of the first proceeding to determine the actual scope of jeopardy in the first proceeding. The test to determine whether the earlier timeframe included the second is not what a reasonable person would think the earlier timeframe includes. Instead, the court ascertains the parameters of the offense for which the defendant was actually in jeopardy during the first proceeding by reviewing all of the evidence, testimony, and arguments of the parties. State v. Schultz, 2020 WI 24, 390 Wis. 2d 570, 939 N.W.2d 519, 17-1977. But see State v. Killian, 2023 WI 52, 408 Wis. 2d 92, 991 N.W.2d 387, 20-2012. Section 939.71 substantially enacts the Blockburger, 284 U.S. 299 (1932), test for determining whether two offenses are the same offense for double jeopardy purposes. The test for determining whether there are two offenses or only one is whether each provision requires proof of a fact that the other does not. State v. Triebold, 2021 WI App 13, 396 Wis. 2d 176, 955 N.W.2d 415, 19-1209. Multiplicity arises when a defendant is charged in more than one count for a single offense. The established methodology for reviewing a multiplicity claim is a two-step test. First, the court determines whether the charged offenses are identical in law and fact using the Blockburger, 284 U.S. 299 (1932), test. The Blockburger test inquires whether each provision requires proof of an additional fact which the other does not. As a general proposition, different elements of law distinguish one offense from another when different statutes are charged. Different facts distinguish one count from another when the counts are charged under the same statute. Section 346.17 (3) (b) to (d) provides additional elements to the offense stated in s. 346.04 (3) when death, great bodily harm, or property damage is involved, as it was in this case. Thus, under the Blockburger test, the defendant’s charges were not the same in law and fact because the charges involved proof of additional elements or facts that the others did not. State v. Wise, 2021 WI App 87, 400 Wis. 2d 174, 968 N.W.2d 705, 20-1756. A conclusion that the legislature did not intend multiple punishments results in either a double jeopardy or a due process violation. If the offenses are determined to be the same in law and fact, the defendant’s double jeopardy rights have been violated. However, if the offenses are determined to not be the same in law or fact, then there has been a due process violation, as opposed to a double jeopardy violation. State v. Wise, 2021 WI App 87, 400 Wis. 2d 174, 968 N.W.2d 705, 20-1756. When a trial ends in a mistrial, the inquiry regarding the defendant’s scope of jeopardy should focus on the charging documents, but the entire record may be examined if necessary to confirm the scope of jeopardy as established by those charging documents. Mere overlap in proof between two prosecutions does not establish a double jeopardy violation, nor does the prosecutor’s intent. In this case, the prosecutor’s stated intention to amend the information and add more charges at the close of evidence did not expand the scope of the defendant’s jeopardy. The prosecutor’s intent alone was insufficient to put the defendant at risk of a determination of guilt. Until the information was actually amended, there existed no such risk, and therefore no jeopardy. State v. Killian, 2023 WI 52, 408 Wis. 2d 92, 991 N.W.2d 387, 20-2012.
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wisconsinconstitution
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