On Point blog, page 3 of 7
Double Jeopardy – Multiplicity: Multiple Punishments, Single Prosecution, In General
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.
Due Process – Right to Present Defense – “Denny” Evidence
State v. Matthew J. Knapp, 2003 WI 121, on certification; vacated and remanded on other grounds for further consideration in light of United States v. Patane, 542 U. S. ____ (2004), Wisconsin v. Knapp, No. 03-590); subsequent decision on remand, Miranda issue: State v. Knapp (II),
Enhancers — Multiple Enhancers — §§ 346.65(2), 939.62
State v. Richard W. Delaney, 2003 WI 9, affirming unpublished decision
For Delaney: Joseph R. Cincotta
Issue/Holding:
¶1 … Specifically, Delaney asks this court to determine whether Wis. Stat. § 939.62 (1999-2000) was properly applied to his already enhanced OWI offense under Wis. Stat. § 346.65(2)(c), based on the existence of a past non-OWI offense, so as to enhance Delaney’s penalty twice for count one of his judgment of conviction.
Double Jeopardy – Multiplicity: Battery, by Prisoner and Simple
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.
Common Law Defenses – Causation, Homicide – “Year and a Day” Rule
State v. Waylon Picotte, 2003 WI 42, on certification
For Picotte: John T. Wasielewski
Issue: Whether conviction for homicide is barred because the victim did not die within a year and a day of infliction of the fatal injuries.
Holding:
¶5. We disagree with the circuit court and hold that the defendant’s conviction in this case is barred by the common-law year-and-a-day rule.
§ 941.23, Carrying concealed weapon – Facial Constitutionality, in Light of Wis. Const. Art. I, § 25
State v. Phillip Cole, 2003 WI 112, on certification
For Cole: Michael Gould, SPD, Milwaukee Appellate
Issue: Whether § 941.23 is facially unconstitutional as impermissibly infringing on the right to bear arms.
Holding: The constitutional right of an individual to bear arms, Wis. Const. Art. I, § 25, being “fundamental” in nature, ¶20, the question is whether § 941.23 “reasonably” restricts that right, which in turn requires balancing the interests involved.
§ 941.23, Carrying concealed weapon – As-AppliedConstitutionality, in Light of Wis. Const. Art. I, § 25
State v. Phillip Cole, 2003 WI 112, on certification
For Cole: Michael Gould, SPD, Milwaukee Appellate
Issue: Whether § 941.23 is unconstitutional as applied to Cole.
Holding:
¶48. Cole claims that he was carrying the weapons because he had been “the victim of a brutal beating when he was younger and he did not feel safe in the neighborhood.” (Pet’r Br. at 3.) He did not assert that he had the weapons in the car in response to any specific or imminent threat.
Hearsay – Against-Interest Statement, § 908.045(4) — Exculpating Defendant
State v. Sherrie S. Tucker, 2003 WI 12, on certification
For Tucker: Paul LaZotte, SPD, Madison Appellate
Issue/Holding:
¶32. At the postconviction hearing, the circuit court upheld its prior ruling that McCray’s statements were not admissible as either statements against penal interest or under the residual exception to the hearsay rule. The circuit court noted that McCray’s statements attempted to exculpate Tucker without inculpating himself.
Constitutional Defenses – Ex Post Facto – Change in Statute of Limitations
State v. Jeffrey B. Haines, 2003 WI 39, 2002 WI App 139
For Haines: Mark A. Huesmann, Sonja Davig Huesmann
Issue/Holding: An extension of the limitation period for prosecuting a crime, before the prior limitation period has expired, doesn’t violate the ex post facto clause of the Wisconsin Constitution.
¶15. In sum, the court of appeals succinctly and correctly reasoned that:
[T]he 1994 amendment to Wis.
Sentencing – Factors: (PAC-Related, District-by-District) Sentencing Guidelines, Validity
State v. Patty E. Jorgensen, 2003 WI 105, affirming unpublished opinion of court of appeals
For Jorgensen: Charles B. Vetzner, SPD, Madison Appellate
Issue/Holding1: Sentencing guidelines for specified offenses (namely: §§ 346.63 (1) (b) or 346.63(5) [PAC offenses]) are within the authority granted by § 346.65(2m)(a). ¶¶16-18. However, the guidelines do not apply to an offense under § 346.63(1)(a) (OWI), therefore “it is inappropriate for a circuit court to simply apply the guidelines as the sole basis for its sentence in a § 346.63(1)(a) case.” ¶27.