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. A trial court exercises sound discretion in deciding manifest necessity justifies a mistrial provided the court: 1) gives both parties a full opportunity to explain their positions and considers alternatives such as a curative instruction or sanctioning counsel; 2) accords careful consideration to the defendant’s interest in having the trial concluded in a single proceeding; and 3) ensures that the record reflects that there is an adequate basis for a finding of manifest necessity. A court does not exercise sound discretion if the court fails to consider the facts of record under relevant law, bases its conclusion on an error of law, or does not reason its way to a rational conclusion. State v. Green, 2023 WI 57, 408 Wis. 2d 248, 992 N.W.2d 56, 21-0267. In this case, the record demonstrated that the trial court exercised sound discretion in declaring a mistrial based on manifest necessity. The court ordered a mistrial because the state had the right to know about and respond to testimony implicating a third-party perpetrator—so called Denny, 120 Wis. 2d 614 (1984), evidence—and the court was required to make a ruling on it before it came out of the witness’s mouth during the middle of the trial. The court’s later determination on Denny was irrelevant. Although the circuit court may have later determined the testimony was in fact admissible, the court nonetheless grounded its mistrial order in the law, as applied to the particular facts of the case. State v. Green, 2023 WI 57, 408 Wis. 2d 248, 992 N.W.2d 56, 21-0267. When the judge dismissed a charge after the jury returned a guilty verdict, the prosecution’s appeal did not constitute double jeopardy. United States v. Wilson, 420 U.S. 332, 95 S. Ct. 1013, 43 L. Ed. 2d 232 (1975). When a juvenile court found the defendant guilty but unfit for treatment as a juvenile, the defendant would be put in double jeopardy if tried in a criminal court. Breed v. Jones, 421 U.S. 519, 95 S. Ct. 1779, 44 L. Ed. 2d 346 (1975). When defense counsel’s improper opening statement prompted the trial judge to grant a mistrial over defense objections, and when the record provided sufficient justification for the mistrial ruling, the judge’s failure to make explicit findings of “manifest necessity” did not support the defendant’s claim of double jeopardy. Arizona v. Washington, 434 U.S. 497, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978). The protection against double jeopardy did not bar federal prosecution of an American Indian previously convicted in a tribal court of a lesser included offense arising out of the same incident. United States v. Wheeler, 435 U.S. 313, 98 S. Ct. 1079, 55 L. Ed. 2d 303 (1978).