On Point: f. Drug offenses

State v. Samuel R. Osornio, 2024AP2368-CR, decision originally issued 6/25/25, subsequently withdrawn, reissued 7/18/25, District 4, (recommended for publication); case activity (including briefs)

Osornio argues that he is entitled to a new trial because the state charged him with both reckless homicide by delivery of heroin, based on allegations that he delivered heroin to A.B. and A.B. fatally overdosed on this heroin, and, separately, with delivery of the same heroin to A.B. (¶1). COA reverses, concluding that the two counts were multiplicitous, as Osornio was exposed to the potential for punishment twice for the same offense of delivering heroin to A.B. (¶3).

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. Brantner, 2018AP53, petition for review of a summary order granted 5/14/19; affirmed in part and reversed in part 2/25/20; case activity (including briefs)

Issues:

1. Do the United States and Wisconsin Constitutional protections against double jeopardy bar the State from punishing a criminal defendant twice for violations of Wis. Stat. § 961.41(3g)(am) for possessing pills containing different doses of the same substance at the same time?

2. When an individual is arrested in one county with controlled substances on his person and transported in police custody to a different county where the substances are removed from the individual’s person during the booking process, does a trial for possession of the controlled substances in the destination county violate the individual’s rights under Article I, Section VII of the Wisconsin Constitution and Wis. Stat. § 971.19?

Stephen Dye v. Frank, 355 F.3d 1102 (7th Cir 2004)
For Dye: Christopher M. Bailey

Issue/Holding:

To determine whether a civil penalty is so punitive that it is should be characterized as criminal punishment, we must consider the factors listed by the Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963), and reaffirmed in Hudson v.