939.645(2)(b)(b) If the crime committed under sub. (1) is ordinarily a Class A misdemeanor, the penalty increase under this section changes the status of the crime to a felony and the revised maximum fine is $10,000 and the revised maximum term of imprisonment is 2 years. 939.645(2)(c)(c) If the crime committed under sub. (1) is a felony, the maximum fine prescribed by law for the crime may be increased by not more than $5,000 and the maximum term of imprisonment prescribed by law for the crime may be increased by not more than 5 years. 939.645(3)(3) This section provides for the enhancement of the penalties applicable for the underlying crime. The court shall direct that the trier of fact find a special verdict as to all of the issues specified in sub. (1). 939.645(4)(4) This section does not apply to any crime if proof of race, religion, color, disability, sexual orientation, national origin or ancestry or proof of any person’s perception or belief regarding another’s race, religion, color, disability, sexual orientation, national origin or ancestry is required for a conviction for that crime. 939.645 AnnotationWhen two penalty enhancers are applicable to the same crime, the length of the second penalty enhancer is based on the maximum term for the base crime as extended by the first penalty enhancer. State v. Quiroz, 2002 WI App 52, 251 Wis. 2d 245, 641 N.W.2d 715, 01-1549. 939.645 AnnotationHate Crimes—New Limits on the Scope of First Amendment Protection? Resler. 77 MLR 415 (1994).
939.645 AnnotationPut to the Proof: Evidentiary Considerations in Wisconsin Hate Crime Prosecutions. Read. 89 MLR 453 (2005).
939.645 AnnotationTalking About Hate Speech: A Rhetorical Analysis of American and Canadian Approaches to the Regulation of Hate Speech. Moran. 1994 WLR 1425.
939.645 AnnotationHate Crimes. Kassel. Wis. Law. Oct. 1992.
RIGHTS OF THE PROSECUTION
939.65939.65 Prosecution under more than one section permitted. Except as provided in s. 948.025 (3), if an act forms the basis for a crime punishable under more than one statutory provision, prosecution may proceed under any or all such provisions. 939.65 HistoryHistory: 1993 a. 227. 939.65 AnnotationDue process does not require that a person know with certainty which crime, among several, the person is committing, at least until the prosecution exercises its charging discretion. Harris v. State, 78 Wis. 2d 357, 254 N.W.2d 291 (1977). 939.65 AnnotationThe district attorney had the discretion to charge the defendant with a Class A misdemeanor offense of sexual intercourse with a child age 16 or older under s. 948.09, a Class I felony offense of exposing intimate parts under s. 948.10 (1), and a Class D felony offense of child enticement with intent to expose intimate parts under s. 948.07 (3). It was not absurd to penalize the defendant for the felony crime of exposing intimate parts, which would be practically necessary for the misdemeanor intercourse to occur. State v. Matthews, 2019 WI App 44, 388 Wis. 2d 335, 933 N.W.2d 152, 18-0845. 939.66939.66 Conviction of included crime permitted. Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following: 939.66(1)(1) A crime which does not require proof of any fact in addition to those which must be proved for the crime charged. 939.66(2)(2) A crime which is a less serious type of criminal homicide under subch. I of ch. 940 than the one charged. 939.66(2m)(2m) A crime which is a less serious or equally serious type of battery than the one charged. 939.66(2p)(2p) A crime which is a less serious or equally serious type of violation under s. 948.02 than the one charged. 939.66(2r)(2r) A crime which is a less serious type of violation under s. 943.23 than the one charged. 939.66(3)(3) A crime which is the same as the crime charged except that it requires recklessness or negligence while the crime charged requires a criminal intent. 939.66(4)(4) An attempt in violation of s. 939.32 to commit the crime charged. 939.66(4m)(4m) A crime of failure to timely pay child support under s. 948.22 (3) when the crime charged is failure to pay child support for more than 120 days under s. 948.22 (2). 939.66(5)(5) The crime of attempted battery when the crime charged is sexual assault, sexual assault of a child, robbery, mayhem or aggravated battery or an attempt to commit any of them. 939.66(6c)(6c) A crime that is a less serious type of violation under s. 940.285 than the one charged. 939.66(6e)(6e) A crime that is a less serious type of violation under s. 940.295 than the one charged. 939.66 AnnotationTo submit a lesser included offense, there must be some reasonable ground in the evidence for conviction on the lesser and acquittal on the greater. A lesser offense is permissible when the evidence requires the jury to find a disputed factual element in the charged offense that is not required for the lesser and the jury might find the disputed fact either way. State v. Melvin, 49 Wis. 2d 246, 181 N.W.2d 490 (1970). 939.66 AnnotationAttempted battery can only be an included crime as to the specific offenses listed. State v. Melvin, 49 Wis. 2d 246, 181 N.W.2d 490 (1970). 939.66 AnnotationA charge of possession of a pistol by a minor is not an included crime in a charge of attempted first-degree murder because it includes the element of minority that the greater crime does not. State v. Melvin, 49 Wis. 2d 246, 181 N.W.2d 490 (1970). 939.66 AnnotationDisorderly conduct is not a lesser included offense of criminal damage to property. State v. Chacon, 50 Wis. 2d 73, 183 N.W.2d 84 (1971). 939.66 AnnotationWhile attempted aggravated battery is not an included crime of aggravated battery under sub. (1), it is under sub. (4). The reduced charge does not put the defendant in double jeopardy. Dunn v. State, 55 Wis. 2d 192, 197 N.W.2d 749 (1972). 939.66 AnnotationUnder sub. (1), the emphasis is on the proof, not the pleading, and the “stricken word test” stated in Eastway, 189 Wis. 56 (1926), is not incorporated in the statute. Martin v. State, 57 Wis. 2d 499, 204 N.W.2d 499 (1973). 939.66 AnnotationSection 947.015, bomb scares, is not an included crime in s. 941.30, recklessly endangering safety. State v. Van Ark, 62 Wis. 2d 155, 215 N.W.2d 41 (1974). 939.66 AnnotationWhen the evidence overwhelmingly showed that a shooting was intentional, failure to include negligent homicide under ss. 940.06 and 940.08 as a lesser included offenses was not error. Hayzes v. State, 64 Wis. 2d 189, 218 N.W.2d 717 (1974). 939.66 AnnotationIn order to justify the submission of an instruction on a lesser degree of homicide than that with which the defendant is charged, there must be a reasonable basis in the evidence for acquittal on the greater charge and for conviction on the lesser charge. Harris v. State, 68 Wis. 2d 436, 228 N.W.2d 645 (1975). 939.66 AnnotationFor one crime to be included in another, it must be utterly impossible to commit the greater crime without committing the lesser. Randolph v. State, 83 Wis. 2d 630, 266 N.W.2d 334 (1978). 939.66 AnnotationThe test under sub. (1) concerns legal, statutorily defined elements of the crime, not peculiar facts of the case. State v. Verhasselt, 83 Wis. 2d 647, 266 N.W.2d 342 (1978). 939.66 AnnotationThe trial court erred in denying the defendant’s request for the submission of a verdict of endangering safety by conduct regardless of life as a lesser included offense of attempted murder. Hawthorne v. State, 99 Wis. 2d 673, 299 N.W.2d 866 (1981). 939.66 AnnotationWithout 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). 939.66 AnnotationWhen a defendant charged with second-degree murder denied firing the fatal shot, a manslaughter instruction was properly denied. State v. Sarabia, 118 Wis. 2d 655, 348 N.W.2d 527 (1984). 939.66 AnnotationUnder the “elements only” test, offenses that require proof of nonconsent are not lesser included offenses of offenses for which proof of nonconsent is not required. State v. Richards, 123 Wis. 2d 1, 365 N.W.2d 7 (1985). 939.66 AnnotationWhen police confiscated a large quantity of drugs from an empty home 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 a greater offense of possession with intent to deliver did not violate double jeopardy. State v. Stevens, 123 Wis. 2d 303, 367 N.W.2d 788 (1985). 939.66 AnnotationReckless use of weapons under former s. 941.20 (1) (a), 1983 stats., was not a lesser included offense of crime of endangering safety by conduct regardless of life while armed under former ss. 939.63 (1) (a) 3. and 941.30, 1983 stats. State v. Carrington, 134 Wis. 2d 260, 397 N.W.2d 484 (1986). 939.66 AnnotationThe court must instruct the jury on a properly requested lesser offense even though the statute of limitations bars the court from entering a conviction on the lesser offense. State v. Muentner, 138 Wis. 2d 374, 406 N.W.2d 415 (1987). 939.66 AnnotationThe court of appeals may not direct the circuit court to enter a judgment of conviction for a lesser included offense when a jury verdict of guilty on a greater offense is reversed for insufficiency of evidence and the jury was not instructed on the lesser included offense. State v. Myers, 158 Wis. 2d 356, 461 N.W.2d 777 (1990). 939.66 AnnotationConvictions for both first-degree murder and burglary/battery are permissible. State v. Kuntz, 160 Wis. 2d 722, 467 N.W.2d 531 (1991). 939.66 AnnotationEvidence at trial may suggest to the state that an instruction on a lesser included offense is appropriate; it is unreasonable for a defendant to assume at the outset of trial that evidence may not affect the state’s prosecuting position. State v. Fleming, 181 Wis. 2d 546, 510 N.W.2d 837 (Ct. App. 1993). 939.66 AnnotationThis section does not bar multiple convictions when homicides are “equally serious.” Two Class C felonies with the same maximum penalty were equally serious although one carried additional sanctions of driver license revocation and an additional penalty assessment that the other did not. State v. Lechner, 217 Wis. 2d 392, 576 N.W.2d 912 (1998), 96-2830. 939.66 AnnotationMisdemeanor battery is an included crime of felony battery, but they are not the same offense. Acquittal on felony battery charges does not prevent subsequent prosecution for misdemeanor battery. State v. Vassos, 218 Wis. 2d 330, 579 N.W.2d 35 (1998), 97-0938. 939.66 AnnotationThere is no rule that when a more specific crime could have been charged, the defendant loses the right to a lesser-included instruction on a more general offense. That retail theft, which was not a lesser-included offense of armed robbery, could have been charged did not prevent the giving of an instruction on theft as a lesser included offense of armed robbery. State v. Jones, 228 Wis. 2d 593, 598 N.W.2d 259 (Ct. App. 1999), 98-1681. 939.66 AnnotationA lesser included offense must be both lesser and included. An offense with a heavier penalty cannot be regarded as a lesser offense than one with a lighter penalty. State v. Smits, 2001 WI App 45, 241 Wis. 2d 374, 626 N.W.2d 42, 00-1158. 939.66 AnnotationWhen a jury returned a verdict finding the defendant guilty of both a greater and a lesser included offense, although it had been instructed that it could only find one or the other, it was not error for the court to enter judgment on the greater offense after polling the jury to confirm the result. State v. Hughes, 2001 WI App 239, 248 Wis. 2d 133, 635 N.W.2d 661, 00-3176. See also State v. Cox, 2007 WI App 38, 300 Wis. 2d 236, 730 N.W.2d 452, 06-0419. 939.66 AnnotationSeparate prosecutions for a carjacking that occurred on one day and operating the same car without the owner’s consent on the next did not violate sub. (2r) or the constitutional protection against double jeopardy. State v. McKinnie, 2002 WI App 82, 252 Wis. 2d 172, 642 N.W.2d 617, 01-2764. 939.66 AnnotationSub. (2m) only applies to battery under s. 940.19 and not to battery by a prisoner under s. 940.20. Charging both was not multiplicitous and not a double jeopardy violation. State v. Davison, 2003 WI 89, 263 Wis. 2d 145, 666 N.W.2d 1, 01-0826. 939.66 AnnotationSection 948.40 (1) and (4) (a), contributing to the delinquency of a child with death as a consequence, is not a “type of criminal homicide” included under sub. (2). It provides a more serious punishment when “death is a consequence” of its violation. In contrast, the homicide statutes in ch. 940 target those who “cause the death” of another. State v. Patterson, 2010 WI 130, 329 Wis. 2d 599, 790 N.W.2d 909, 08-1968. 939.66 AnnotationThe defendant’s guilty plea to second-degree sexual assault of a child was not knowing, intelligent, and voluntary because the defendant was incorrectly informed that the defendant faced a potential sentence of 100 years if convicted of both first-degree and second-degree sexual assault. Because second-degree sexual assault is a lesser-included offense to first-degree sexual assault, the defendant could not have lawfully been convicted of both offenses. Thus, the defendant was not truly aware of the direct consequences of his plea and was entitled to withdraw it. State v. Douglas, 2018 WI App 12, 380 Wis. 2d 159, 908 N.W.2d 466, 16-1865. 939.66 AnnotationThe only difference between first-degree and second-degree reckless homicide is that “utter disregard for human life” is a required element for first-degree, but not second-degree, reckless homicide. In this case, there was evidence that the defendant acted in fear for his own life, not necessarily with utter disregard for the victim’s life. Based on that evidence, the circuit court should have instructed the jury on the lesser-included offense of second-degree reckless homicide as well as first-degree reckless homicide. State v. Johnson, 2021 WI 61, 397 Wis. 2d 633, 961 N.W.2d 18, 18-2318. 939.66 AnnotationMultiple Punishment in Wisconsin and the Wolske Decision: Is It Desirable to Permit Two Homicide Convictions for Causing a Single Death? Albee. 1990 WLR 553.
939.66 NoteNOTE: See also notes to Art. I, sec. 8, Double Jeopardy.
RIGHTS OF THE ACCUSED
939.70939.70 Presumption of innocence and burden of proof. No provision of chs. 939 to 951 shall be construed as changing the existing law with respect to presumption of innocence or burden of proof. 939.70 HistoryHistory: 1979 c. 89; 1987 a. 332 s. 64. 939.71939.71 Limitation on the number of convictions. If an act forms the basis for a crime punishable under more than one statutory provision of this state or under a statutory provision of this state and the laws of another jurisdiction, a conviction or acquittal on the merits under one provision bars a subsequent prosecution under the other provision unless each provision requires proof of a fact for conviction which the other does not require. 939.71 AnnotationMisdemeanor battery is an included crime of felony battery, but they are not the same offense. Acquittal on felony battery charges does not prevent subsequent prosecution for misdemeanor battery. State v. Vassos, 218 Wis. 2d 330, 579 N.W.2d 35 (1998), 97-0938. 939.71 AnnotationThis section does not bar a subsequent prosecution for an offense arising from the same acts that could not have been charged at the time of the first prosecution and thus did not bar prosecuting a defendant for first-degree intentional homicide for the same act which led to battery convictions when the victim died after having been in a coma for four years. State v. McKee, 2002 WI App 148, 256 Wis. 2d 547, 648 N.W.2d 34, 01-1966. 939.71 AnnotationUnder this section, a subsequent prosecution is not prohibited if each provision requires proof of a fact for conviction that the other does not require, even if the same conduct was involved in the two prosecutions. In contrast, s. 961.45 provides that if a violation of ch. 961 is a violation of a federal law or the law of another state, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this state. The difference in the two statutes does not violate equal protection. State v. Swinson, 2003 WI App 45, 261 Wis. 2d 633, 660 N.W.2d 12, 02-0395. 939.71 AnnotationThis section 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. 939.71 AnnotationThis section did not prohibit the defendant’s convictions for failure to update his address information in both Minnesota and Wisconsin because the states’ respective sex offender registration statutes required proof of different facts. Criminal liability under either statute was predicated upon a failure to comply with the applicable registration requirements of the particular state—here, the failure to update address information to the relevant state agency. The defendant was not prosecuted in Wisconsin with failing to provide his new address to Minnesota authorities. Rather, the defendant was separately required under this state’s law to provide his updated address information to the Wisconsin Department of Corrections under s. 301.45 (4). State v. Triebold, 2021 WI App 13, 396 Wis. 2d 176, 955 N.W.2d 415, 19-1209. 939.72939.72 No conviction of both inchoate and completed crime. A person shall not be convicted under both: 939.72(1)(1) Section 939.30 for solicitation and s. 939.05 as a party to a crime which is the objective of the solicitation; or 939.72(2)(2) Section 939.31 for conspiracy and s. 939.05 as a party to a crime which is the objective of the conspiracy; or 939.72(3)(3) Section 939.32 for attempt and the section defining the completed crime. 939.72 HistoryHistory: 1991 a. 153; 2001 a. 109. 939.72 AnnotationSub. (3) does not bar convicting the defendant who shot at one person but killed another of both murder and attempted murder. Austin v. State, 86 Wis. 2d 213, 271 N.W.2d 668 (1978). 939.72 AnnotationSub. (3) does not bar convictions for possession of burglarious tools and burglary arising out of a single transaction. Dumas v. State, 90 Wis. 2d 518, 280 N.W.2d 310 (Ct. App. 1979). 939.72 AnnotationThis section refers to convictions, not charges. The state may properly charge a defendant with both being a party to an attempt to commit a crime and conspiracy to commit the crime. State v. Moffett, 2000 WI 130, 239 Wis. 2d 629, 619 N.W.2d 918, 99-1768. 939.73939.73 Criminal penalty permitted only on conviction. A penalty for the commission of a crime may be imposed only after the actor has been duly convicted in a court of competent jurisdiction. 939.74939.74 Time limitations on prosecutions. 939.74(1)(1) Except as provided in subs. (2) and (2d) and s. 946.88 (1), prosecution for a felony must be commenced within 6 years and prosecution for a misdemeanor or for adultery within 3 years after the commission thereof. Within the meaning of this section, a prosecution has commenced when a warrant or summons is issued, an indictment is found, or an information is filed. 939.74(2)(2) Notwithstanding that the time limitation under sub. (1) has expired:
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