On Point: D. Remedy

State v. James P. Killian, 2020AP2012, review of a published court of appeals decision granted 1/20/23; case activity

Issues presented (from state’s PFR):

Has the State exposed Killian to multiple prosecutions for the same offense in violation of double-jeopardy principles?

State v. Brantner, 2020 WI 21, 2/25/20, affirming in part and reversing in part a summary order, 2018AP53; case activity (including briefs)

Brantner was arrested (for reasons unrelated to this case) in Kenosha County by Fond du Lac County detectives. They took him to jail in Fond du Lac, where a booking search revealed several different types of pills concealed in his boot. He was tried, convicted and sentenced in Fond du Lac on five counts of drug possession and five associated bail-jumping counts. The supreme court now rejects his argument that he didn’t “possess” any of the drugs in Fond du Lac County–that the arrest in Kenosha terminated his possession because he lacked control over the pills. But it agrees with him that his conviction on two of the counts (with their associated bail-jumping counts) is a double-jeopardy violation; the bare fact that he had pills with two different oxycodone dosages (5 and 20 milligram) will not support two different charges of possessing that drug.

State v. Daniel Wyatt Henning, 2004 WI 89, reversing 2003 WI App 54, 261 Wis. 2d. 664, 660 N.W.2d 698
For Henning: Steven D. Phillips, SPD, Madison Appellate

Issue: “¶41. Thus, the critical question is this: When a jury, in a multicount trial, both convicts and acquits, and an appellate court then overturns the conviction or convictions, do the acquitted charges pose any direct bar to retrial of the reversed convictions?” (In this case,

State v. Theodore J. Krawczyk, 2003 WI App 6, PFR filed 1/21/03
For Krawczyk: John T. Wasielewski

Issue: Whether vacating plea-bargain based conviction and (concurrent) sentence for multiplicitous charge was adequate remedy, as opposed to reinstating the not guilty pleas.

Holding:

¶34. We see no reason to disturb the remedy the trial court granted for the double jeopardy violation. First, when a multiplicitous count is reversed on appeal,

State v. Robert S. Robinson, 2002 WI 9, on certification
For Robertson: Leonard D. Kachinsky

Issue/Holding:

¶2. The question of law raised on appeal is what is the appropriate remedy when an accused is convicted on the basis of a negotiated plea agreement and the counts later are determined to be multiplicitous, violating the accused’s state and federal constitutional guarantees against double jeopardy?

State v. John P. Krueger, 224 Wis.2d 59, 588 N.W.2d 921 (1999), affirming unpublished decision
For Krueger: Gary S. Cirilli

Holding: The court reaffirms the holding of State v. Braunsdorf, 98 Wis.2d 569, 297 N.W.2d 808 (1980) that prior to attachment of jeopardy trial courts don’t possess the authority to dismiss a charge with prejudice except for denial of speedy trial.