On Point: A. Multiplicity

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

Issue/Holding:

¶29. We conclude that Krawczyk’s plea to both felony murder and the underlying armed robbery, the latter conviction having been set aside, does not provide a basis for withdrawal of his plea to felony murder. First and foremost, the record is devoid of any evidence establishing that Krawczyk would not have pled guilty to felony murder (and to the other two offenses of which he remains convicted) had he known of the multiplicity of the felony murder and armed robbery charges.

State v. Robert S. Robinson, 2002 WI 9, on certification
For Robinson: 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? ….

¶3.

State v. Prentiss M. McKinnie, 2002 WI App 82, PFR filed 3/14/02
For McKinnie: Bryan J. Borman, SPD, Waukesha Trial

Issue: Whether separate charges, of carjacking and operating the same motor vehicle without owner’s consent are permissible where, after allegedly taking the car, the defendant continued to drive it the next day.

Holding: Though these offenses are the same in law, under § 939.66(2r), the facts as alleged are distinct and therefore support separate charges in this particular instance:

¶11.

State v. Jimmie Davison, 2002 WI App 109, reversed on other grounds, 2003 WI 89
For Davison: Keith A. Findley, UW Law School

Issue/Holding: A guilty plea doesn’t waive a facially valid multiplicity claim. ¶13.

The supreme court took review on this threshold issue: “First, does a criminal defendant who pleads guilty to several crimes in a negotiated plea agreement waive the right to raise a multiplicity claim against one of the resulting convictions?” ¶2.

State v. James E. Multaler, 2002 WI 35, affirming 2001 WI App 14, 246 Wis. 2d 752, 632 N.W.2d 89
For Multaler: Jeffrey W. Jensen

Issue/Holding:

¶58. Applying these standards, we agree with the court of appeals that the 28 counts to which Multaler pled were not identical in fact. Although some of the downloaded image files contained multiple images,

State v. Glover B. Jones, 2002 WI App 196, PFR filed 8/22/02
For Jones: Mark D. Richards

Issue/Holding: The drug tax stamp law, §§ 139.87-139.96,  amended to address State v. Hall, 207 Wis. 2d 54, 557 N.W.2d 778 (1997), doesn’t violate the privilege against compelled self-incrimination, ¶33-36.

State v. Michael A. Sveum, 2002 WI App 105, PFR filed 5/10/02
For Sveum: Ian A.J. Pit

Issue/Holding: Violation of harassment injunction isn’t lesser offense of harassment, each requiring proof of distinct element. ¶¶23-28. (Court stressing, in particular, that for harassment defendant need only be “subject” to injunction but not actually violate it. ¶25.)

State v. Jason J. Trawitzki, 2001 WI 77, 244 Wis. 2d 523, 628 N.W.2d 801, affirming State v. Trawitzki, 2000 WI App 205, 238 Wis. 2d 795, 618 N.W.2d 884
For Trawitzki: Donald T. Lang, SPD, Madison Appellate

Issue: Whether multiple charges of theft of firearms taken at the same time, and multiple charges of concealing those firearms, violated double jeopardy.

Holding: Multiplicity is a two-part test: determine whether the offenses are identical in both law and fact;

State v. Kevin S. Meehan, 2001 WI App 119
For Meehan: Pamela Moorshead, Buting & Williams

Issue: Whether charges of completed and attempted sexual assault of the same victim were multiplicitous.

Holding:

¶34. The nature of the two acts was different because the attempted sexual assault was foiled by the victim’s resistance. There was some time separation between the two acts, sufficient for a question and answer.

State v. William Koller, 2001 WI App 253, PFR filed
For Koller: Peter M. Koneazny, SPD, Milwaukee Appellate

Issue: Whether distinct types of sexual assault (mouth-vagina and penis-vagina) necessarily support distinct counts.

Holding:

¶59     There is another reason Koller’s second multiplicity challenge fails.  This second claim is directed primarily at the relationship between Count 4 (mouth-to-vagina contact), on the one hand, and Counts 3 and 5 (penis-to-vagina intercourse),