On Point blog, page 13 of 14
Double Jeopardy – Prosecutorial Misconduct: Vindictiveness – More Onerous Plea Offer After Defendant Obtains Relief
State v. Peter G. Tkacz, 2002 WI App 281, PFR filed 11/14/02
For Tkacz: Mark S. Rosen
Issue/Holding: Even assuming that the law of vindictive prosecution (presumption of vindictiveness attaches to less favorable prosecutorial action following successful appeal) applies to failure to re-offer same plea bargain following reversal of conviction, the facts would not support vindictiveness. The prosecutor offered a less favorable resolution because he had additional evidence and a stronger case,
Double Jeopardy – Multiplicity: Harassment Injunction (§ 813.125(4)) Not Lesser Offense of Harassment (§ 947.013(1r))
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.)
Double Jeopardy – Multiplicity: theft and concealment, §§ 943.20(1)(a) & (3)(d)5
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;
Sexual Assault, § 948.02 — Multiplicity — Separate Charges, Attempted & Completed Sexual Assaults
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.
Double Jeopardy – Multiplicity: Sexual Assault — Distinct Intrusions
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),
Double Jeopardy – Multiplicity: Child Enticement – Single Act
State v. William J. Church, 2000 WI 90, 223 Wis. 2d 641, 589 N.W.2d 638, dismissing review as improvidently granted, thereby affirming State v. Church , 223 Wis. 2d 641, 589 N.W.2d 638 (Ct. App. 1998)
For Church: James L. Fullin, SPD, Madison Appellate
Issue: Whether the child enticement statute, § 948.07, supports multiple charges and punishments based on a single act.
Double Jeopardy – Multiplicity: Sexual Assaults, Single Incident
State v. David J. Cleveland, 2000 WI App 142, 237 Wis. 2d 558, 614 N.W.2d 543
For Cleveland: Suzanne L. Hagopian, SPD, Madison Appellate
Issue: Whether multiple sexual assault counts arising during a single incident violated double jeopardy.
Holding: Though the offenses weren’t separated in time, each required separate volitional acts and were therefore significantly different in nature for double jeopardy purposes. ¶¶24-26.
Double Jeopardy – Multiplicity: Attempted Child Sexual Exploitation and Child Enticement
State v. Gabriel Derango, 2000 WI 89, 236 Wis. 2d 721, 613 N.W.2d 833, affirming State v. DeRango 229 Wis. 2d 1, 599 N.W.2d 27
For Derango: Robert G. LeBell
Issue: Whether conviction for both attempted child sexual exploitation and child enticement as a result of a single act is multiplicitous.
Holding: The two offenses are elementally distinct and therefore aren’t the “same”
Double Jeopardy – Prosecutorial Misconduct: Vindictiveness – increased charge following hung jury
State v. Hayes Johnson, 2000 WI 12, 232 Wis. 2d 679, 605 N.W.2d 846, reversing State v. Johnson, 223 Wis. 2d 85, 588 N.W.2d 330
For Johnson: Russell D. Bohach
Issue1: Whether a presumption of prosecutorial vindictiveness arises from an increase in the charge following grant of mistrial due to hung jury.
Holding: No presumption of prosecutorial vindictiveness applies to an increase in charges following mistrial due to hung jury.
Double Jeopardy – Sentence: Modification – Four Months After Sentencing, As Violating Expectation of Finality
State v. Guy R. Willett, 2000 WI App 212, 238 Wis.2d 621, 618 N.W.2d 881
For Willett: Susan E. Alesia, SPD, Madison Appellate
Issue: Whether the trial court had authority to change its sentences from concurrent to consecutive to a separately imposed sentence, four months later, after concluding that its sentencing was based on an erroneous understanding of the law.
Holding: Although the trial court clearly wanted its sentences to run consecutive to a separately imposed sentence,