On Point blog, page 3 of 5
Aggregating 289 thefts as 1 continuous offense then dividing by 8 = no multiplicity violation
State v. Tina M. Jacobsen, 2014 WI App 13; case activity
Jacobsen was charged with 8 offenses for stealing $500,000 from her employer, and she was convicted on 3 counts. The charges were based on 289 individual thefts occurring over 3 years. On appeal she claimed her trial lawyer was ineffective for failing advise her that, and for failing to seek dismissal because, the charges were duplicitous or multiplicitous.
South Milwaukee ordinance restricting residency of sex offenders upheld against ex post facto and double jeopardy challenges
City of South Milwaukee v. Todd J. Kester, 2013 WI App 50; case activity
Sex offender residency restrictions – constitutionality; ex post facto and double jeopardy
South Milwaukee’s ordinance prohibiting persons convicted of certain child sex offenses from living within 1,000 feet of a school or other facility frequented by children does not violate the double jeopardy or ex post facto prohibitions of the state or federal constitution:
¶31 Kester fails to offer the “clearest proof”
Interfering with Child Custody, § 948.31(2) – Elements; Sexual Assault – Multiplicity; Mug Shot – Admissibility
State v. Scott E. Ziegler, 2012 WI 73, on certification; case activity
Interfering with Child Custody, § 948.31(2) – Elements
Language in State v. Bowden, 2007 WI App 234, ¶18, 306 Wis. 2d 393, 742 N.W.2d 332, that one method of violating § 948.31(2) (interference with child custody) requires the parent’s “initial permission” to take child, is now “withdrawn”:
¶52 Pursuant to the plain language of Wis.
Counsel: Request for Substitute – Effective Assistance (Disclosure of Communications, et al.); Double Jeopardy: Bail Jumping
State v. Demetrius M. Boyd, 2011 WI App 25; for Boyd: Rebecca Robin Lawnicki; case activity; Boyd BiC; State Resp.; Reply
Request for New Counsel
An indigent defendant doesn’t have the right to counsel of choice, but does have the right to counsel with whom he or she can communicate effectively. When an indigent defendant requests change of counsel,
Multiplicity: § 948.40(1) (4)(a) as Lesser of § 940.02(2)(a); Contributing to Delinquency with Death as Result; Instructions – First-Degree Reckless Homicide; Prosecutorial Misconduct – “Haseltine”
State v. Patrick R. Patterson, 2010 WI 130, affirming 2009 WI App 181; for Patterson: David R. Karpe; Patterson BiC; State Resp.; Reply
Multiplicity – § 948.40(1) (4)(a) as Lesser Offense of § 940.02(2)(a)
Contributing to the delinquency of a minor with death as a result, § 948.40(1), (4)(a) is not a lesser offense of first-degree reckless homicide,
State v. Patrick R. Patterson, 2008AP1968-CR, Wis SCt review granted 3/16/10
decision below: 2009 WI App 161; for Patterson: David R. Karpe
Issues:
Is contributing to the delinquency of a child resulting in death a lesser-included offense of first-degree reckless homicide under Wis. Stat. § 939.66(2)?
Can one contribute to the delinquency of a 17-year-old individual when such individuals are no longer subject to juvenile delinquency petitions?
Was a reckless homicide jury instruction defective because it gave as an element to be proved that the deceased used and died from a substance “alleged to have been delivered by the defendant?”
Was there prosecutorial misconduct in refreshing the recollection of witnesses with the testimony and statements of other witnesses?
State v. Patrick R. Patterson, 2009 WI App 61, PFR 10/30/09
court of appeals decision, for Patterson: David R. Karpe
Multiplicity – First-Degree Reckless Homicide by Delivery of Controlled Substance, § 940.02(2)(a) and Contributing to Delinquency Resulting in Death of Child, § 948.40(4)(a): Not Multiplicitous
Based largely on State v. Jimmie Davison, 2003 WI 89 (multiple convictions for battery permissible so long as multiple batteries have been charged), the court holds that § 939.66(2) permits conviction for both §§ 940.02(2)(a) and 948.04(4)(a),
Double Jeopardy – Multiplicity – § 940.02(2)(a) and § 948.40(4)(a): Not Multiplicitous
State v. Patrick R. Patterson, 2009 WI App 161
For Patterson: David R. Karpe
Issue/Holding: Based largely on State v. Jimmie Davison, 2003 WI 89 (multiple convictions for battery permissible so long as multiple batteries have been charged), the court holds that § 939.66(2) permits conviction for both §§ 940.02(2)(a) and 948.04(4)(a), ¶¶1-21. The offenses are not the same “in law”—each containing at least one element not in the other—and therefore Patterson bears the burden of overcoming a presumption in favor of cumulative punishment.
Double Jeopardy – Multiplicity: Bail Jumping – Single Bond, Same Condition but Different Cases
State v. Dana Eaglefeathers, 2009 WI App 2, PFR filed 1/9/09
For Eaglefeathers: Patricia A. Fitzgerald
Issue/Holding: Violation of the same condition in a single bond applicable to two different cases (failure to appear at both preliminary hearings scheduled for the same time and court) supports multiple bail jumping charges:
¶8 The parties do not dispute that the offenses charged against Eaglefeathers are identical in law;
Double Jeopardy – Multiplicity: Repeated Sexual Assault, § 948.025(1) – Different Counties
State v. Thomas A. Nommensen, 2007 WI App 224
For Nommensen: Anthony L. O’Malley
Issue/Holding: Although charges of repeated sexual assault, § 948.025(1) were the same in law, they were different in fact because they :
¶8 Charged offenses are not multiplicitous if the facts are either separate in time or of a significantly different nature. Id. at 749. “The appropriate question is whether these acts allegedly committed … are so significantly different in fact that they may properly be denominated separate crimes although each would furnish a factual underpinning or a substitute legal element for the violation of the same statute.” Id.