On Point: 12. Double Jeopardy, 5th Am.

State v. Clyde Baily Williams, 2004 WI App 56, federal habeas denied, Williams v. Bartow, 481 F.3d 492 (7th Cir 2007)
For Williams: Margaret A. Maroney, SPD, Madison Appellate

Issue/Holding: Issuing new charges for “a completely separate and distinct criminal episode” after the grant of appellate relief does not give rise to a presumption of vindictiveness:

¶45 … As Humphrey [v.

State v. Clyde Baily Williams, 2004 WI App 56, federal habeas denied, Williams v. Bartow, 481 F.3d 492 (7th Cir 2007)
For Williams: Margaret A. Maroney, SPD, Madison Appellate

Issue/Holding:

¶22. We begin by addressing Williams’ double jeopardy claim. He submits that the trial court failed to exercise “sound discretion” in declaring a mistrial after his counsel had asked a State witness,

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,

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.

State v. Jimmie Davison, 2003 WI 89, reversing 2002 WI App 109, 235 Wis. 2d 715, 647 N.W.2d 390
For Davison: Keith A. Findley, UW Law School, Criminal Appeals Project

Issue/Holding:

¶32. In sum, we conclude that the imposition of cumulative punishments from different statutes in a single prosecution for “the same offense” violates double jeopardy when the cumulative punishments are not intended by the legislature. 

State v. Jimmie Davison, 2003 WI 89, reversing 2002 WI App 109, 235 Wis. 2d 715, 647 N.W.2d 390
For Davison: Keith A. Findley, UW Law School, Criminal Appeals Project

Issue/Holding: The legislature did not intend to preclude cumulative punishments for both aggravated battery, § 940.10(6) and battery by prisoner, § 940.20(1), for the same conduct. ¶¶47-111.

State v. Jesse H. Swinson, 2003 WI App 45, PFR filed 3/24/03
For Swinson: Pamela Pepper

Issue/Holding: Separate theft by fraud charges, § 943.20(1)(d), involving a scheme to defraud the same victim over a period of time, were not multiplicitous. Though identical in law, they weren’t identical in fact, because each charge involved a distinct false representation, as well as separate volitional acts. 31-32. Nor does legislative intent support telescoping the distinct acts into one charge.

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. John Lee Schaefer, 2003 WI App 164, PFR filed 8/21/03
For Schaefer: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding: Individual pornographic photos, all found on the same storage disk, support individual charges, it being “reasonable to assume that the existence of multiple files on the Zip disk demonstrates that Schaefer made a new decision to download a particular image file.9 Therefore, each image file ‘represent[s] a new volitional departure,’ and the charges against Schaefer are different in fact.” ¶50. 

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.