On Point blog, page 24 of 216
Court of Appeals decides novel double jeopardy issue
State v. Alexander M. Schultz, 2019 WI App 3, petition for review granted 4/9/19; case activity (including briefs)
Addressing an issue of first impression in Wisconsin, the court of appeals holds that to ascertain the scope of the double jeopardy bar against a successive prosecution when the charging language of the prior case is ambiguous, a court must consider, in light of the entire record of the prior case, how a reasonable person familiar with the facts and circumstances of a particular case would understand that charging language. Applying the test here, the court rules Schultz’s prosecution wasn’t barred.
Retail theft charges can be aggregated under § 971.36
State v. Autumn Marie Love Lopez & Amy J. Rodriguez, 2019 WI App 2, petition for review granted 4/9/19, affirmed by a divided court, 2019 WI 101; Lopez case activity; Rodriquez case activity).
Lopez and Rodriguez were each charged with a single count being party to the crime of felony retail theft of more than $500 but less than $5,000 based on seven separate incidents occurring over two weeks at the same store. Each separate incident involved the theft of less than $500. (¶2). Can the state aggregate the incidents into a single felony count under § 971.36, or does that create a duplicity problem (charging two or more offenses in a single count) that must be avoided by charging seven separate misdemeanors? Aggregate away! sayeth the court of appeals.
November 2018 publication list
On November 28, 2018, the court of appeals ordered the publication of the following criminal law related decision:
State v. Matthew C. Hinkle, 2018 WI App 67 (juvenile court’s waiver into adult court binds all future courts)
October 2018 publication list
On October 31, 2018, the court of appeals ordered the publication of the following criminal law related decision:
State v. Ronald Lee Baric, 2018 WI App 63 (defendant consented to search of his computer and had no expectation of privacy in files put on P2P file sharing network)
COA holds, over dissent, that OWI fine enhancers enhance each other
State v. Charles L. Neill, IV, 2019 WI App 4; petition for review granted 6/11/19, reversed, 2020 WI 15; case activity (including briefs)
Neill pleaded to an OWI-3rd, which has a minimum fine of $600. Wis. Stat. § 346.65(2)(am)3. His plea came with two statutory enhancers: the one for having a BAC over .25 (Wis. Stat. § 346.65(2)(g)3.), and the one for having a child in a car (§ 346.65(2)(f)2.). The former quadruples the minimum fine, and the latter doubles it. So, what’s the minimum fine?
COA holds, over dissent, that juvenile court’s waiver into adult court binds all future courts
State v. Matthew C. Hinkle, 2018 WI App 67, petition for review granted 4/9/19; affirmed 11/12/19; case activity (including briefs)
Hinkle, a 16-year-old boy, was charged as a juvenile in two different counties for a car theft and police chase. In Milwaukee County, the juvenile court waived him into adult court. So, did the Fond du Lac court have to treat him as an adult too?
August 2018 publication list
On August 29, 2018, the court of appeals ordered the publication of the following criminal law related decisions:
State v. Arthur Allen Freiboth, 2018 WI App 46 (judge doesn’t have to inform defendant during plea colloquy about mandatory DNA surcharge)
State v. Terrance Lavone Egerson, 2018 WI App 49 (“let me represent myself” wasn’t an unequivocal request by defendant to represent himself)
September 2018 publication list
On September 26, 2018, the court of appeals ordered the publication of the following criminal law related decisions:
State v. Norris W. Culver, Sr., 2018 WI App 55 (rejecting constitutional challenges to §§ 942.09 and 941.29)
State v. Christopher A. Mason, 2018 WI App 57 (identify theft doesn’t require some extra act of “representing” in addition to “use” of identifying documents)
Court of Appeals rejects constitutional challenges to ban on posting or publishing private pictures, felon in possession statute
State v. Norris W. Culver, 2018 WI App 55; case activity (including briefs)
Wisconsin Stat. § 942.09(3m)(a)2. prohibits a person from posting or publishing “private representations” without the consent of the person depicted in the representation. The court of appeals rejects Culver’s claim that the statute is void because it’s overbroad and vague. The court also rejects his claim that the felon-in-possession statute is unconstitutional as applied to him because of the non-violent nature of his prior felony conviction.
Defendant consented to search and had no expectation of privacy in files put on P2P file sharing network
State v. Ronald Lee Baric, 2018 WI App 63; case activity (including briefs)
Police failed to read Baric his Miranda rights, but the court of appeals still found that he consented to a search of his computer. It also resolved a 4th Amendment issue of first impression for Wisconsin: a person has no reasonable expectation of privacy in files he offers for download on a P2P file sharing network.