I,8(1) (1) No person may be held to answer for a criminal offense without due process of law, and no person for the same offense may be put twice in jeopardy of punishment, nor may be compelled in any criminal case to be a witness against himself or herself.
I,8(2) (2) All persons, before conviction, shall be eligible for release under reasonable conditions designed to assure their appearance in court, protect members of the community from serious bodily harm or prevent the intimidation of witnesses. Monetary conditions of release may be imposed at or after the initial appearance only upon a finding that there is a reasonable basis to believe that the conditions are necessary to assure appearance in court. The legislature may authorize, by law, courts to revoke a person's release for a violation of a condition of release.
I,8(3) (3) The legislature may by law authorize, but may not require, circuit courts to deny release for a period not to exceed 10 days prior to the hearing required under this subsection to a person who is accused of committing a murder punishable by life imprisonment or a sexual assault punishable by a maximum imprisonment of 20 years, or who is accused of committing or attempting to commit a felony involving serious bodily harm to another or the threat of serious bodily harm to another and who has a previous conviction for committing or attempting to commit a felony involving serious bodily harm to another or the threat of serious bodily harm to another. The legislature may authorize by law, but may not require, circuit courts to continue to deny release to those accused persons for an additional period not to exceed 60 days following the hearing required under this subsection, if there is a requirement that there be a finding by the court based on clear and convincing evidence presented at a hearing that the accused committed the felony and a requirement that there be a finding by the court that available conditions of release will not adequately protect members of the community from serious bodily harm or prevent intimidation of witnesses. Any law enacted under this subsection shall be specific, limited and reasonable. In determining the 10-day and 60-day periods, the court shall omit any period of time found by the court to result from a delay caused by the defendant or a continuance granted which was initiated by the defendant.
I,8(4) (4) The privilege of the writ of habeas corpus shall not be suspended unless, in cases of rebellion or invasion, the public safety requires it. [1869 J.R. 7; 1870 J.R. 3; 1870 c. 118; vote Nov. 1870; 1979 J.R. 76, 1981 J.R. 8, vote April 1981]
DOUBLE JEOPARDY
Where, after a plea bargain, the state filed an amended complaint to which defendant pled guilty, but the court refused to accept the plea and reinstated the complaint, but the amended complaint was later reinstated, defendant cannot claim double jeopardy. Salters v. State, 52 W (2d) 708, 191 NW (2d) 19.
The defense of double jeopardy is nonjurisdictional and is waived by a guilty plea intelligently and voluntarily entered. Nelson v. State, 53 W (2d) 769, 193 NW (2d) 704.
A person is not put in double jeopardy because convicted in separate trials of resisting an officer (946.11) and of battery to an officer (940.205) even though the acts charged arose from the same incident. State v. Elbaum, 54 W (2d) 213, 194 NW (2d) 660.
A defendant is not subjected to double jeopardy because the court finds him guilty of a lesser included offense. Moore v. State, 55 W (2d) 1, 197 NW (2d) 820.
Where defendant is tried for one offense and convicted of a lesser included offense he is not placed in double jeopardy. Dunn v. State, 55 W (2d) 192, 197 NW (2d) 749.
Defendant is not subjected to double jeopardy when brought to trial a 2nd time after a mistrial is declared. State v. Elkinton, 56 W (2d) 497, 202 NW (2d) 28.
A defendant is not subjected to double jeopardy by being charged with both theft and burglary. An acquittal on one charge does not amount to collateral estoppel on the other. Hebel v. State, 60 W (2d) 325, 210 NW (2d) 695.
Defendant, convicted of false imprisonment and rape committed in Waukesha county, was not subjected to double jeopardy by a second conviction of false imprisonment of the same victim in Milwaukee county, because the facts support 2 separate imprisonments. Baldwin v. State, 62 W (2d) 521, 215 NW (2d) 541.
Where a trial is terminated prior to a determination of guilt or innocence, the double jeopardy clause does not prevent a retrial if there was a "manifest necessity" to terminate the proceedings because the indictment or information was fatally defective and the trial court lacked jurisdiction to try the case. State v. Russo, 70 W (2d) 169, 233 NW (2d) 485.
Defendant, convicted of fleeing an officer in Portage county, was not put in double jeopardy by a second conviction of fleeing a Wood county officer when defendant crossed county line during chase. State v. Van Meter, 72 W (2d) 754, 242 NW (2d) 206.
Where perjured testimony of key state witness was not offered by the prosecution for the purpose of provoking a mistrial and thus avoiding a probable acquittal, retrial after conviction was vacated does not place defendant in double jeopardy. Day v. State, 76 W (2d) 588, 251 NW (2d) 811.
Neither double jeopardy clause nor doctrine of collateral estoppel precludes parole revocation on grounds of parolee's conduct related to alleged crime for which parolee was charged and acquitted. State ex rel. Flowers v. H&SS Dept. 81 W (2d) 376, 260 NW (2d) 727.
When mistrial requested by defendant is justified by prosecutorial or judicial overreaching intended to prompt request, double jeopardy clause will bar reprosecution. State v. Harrell, 85 W (2d) 331, 270 NW (2d) 428 (Ct. App. 1978).
Double jeopardy provisions of U.S. and Wis. Constitutions are identical in scope and purpose; thus, U.S. Supreme Court decisions control both provisions. Multiplicitous rape charges discussed. Harrell v. State, 88 W (2d) 546, 277 NW (2d) 462 (1979).
Double jeopardy clause prohibits increase of valid sentence to offset erroneously lenient sentence. State v. North, 91 W (2d) 507, 283 NW (2d) 457 (Ct. App. 1979).
Where court of appeals reversed defendant's conviction on grounds of insufficiency of evidence, double jeopardy clause did not bar supreme court from reviewing case. State v. Bowden, 93 W (2d) 574, 288 NW (2d) 139 (1980).
Where the crime is against persons rather than property, there are as many offenses as victims. State v. Rabe, 96 W (2d) 48, 291 NW (2d) 809 (1980).
Prosecutor's repeated failure to give notice under 971.24 was not prosecutorial overreaching which would bar reprosecution after defendant moved for mistrial. State v. Copening, 100 W (2d) 700, 303 NW (2d) 821 (1981).
Two sentences for one crime violated double jeopardy clause. State v. Upchurch, 101 W (2d) 329, 305 NW (2d) 57 (1981).
Trial court properly declared mistrial due to juror's injury. State v. Mendoza, 101 W (2d) 654, 305 NW (2d) 166 (Ct. App. 1981).
Double jeopardy clause did not bar retrial where judge declared mistrial due to jury deadlock. State v. DuFrame, 107 W (2d) 300, 320 NW (2d) 210 (Ct. App. 1982).
Double jeopardy clause did not bar prosecution of charge after it was considered as evidence of character in sentencing defendant on prior unrelated conviction. State v. Jackson, 110 W (2d) 548, 329 NW (2d) 182 (1983).
Without clear legislative intent to contrary, multiple punishment may not be imposed for felony-murder and underlying felony. State v. Gordon, 111 W (2d) 133, 330 NW (2d) 564 (1983).
Reimposition of sentence after defendant has been placed on probation, absent violation of probation condition, violates double jeopardy clause. State v. Dean, 111 W (2d) 361, 330 NW (2d) 630 (Ct. App. 1983).
Governmental action is punishment under double jeopardy clause if its principal purpose is punishment, retribution or deterrence. When principal purpose is nonpunitive, fact that punitive motive may also be present does not make action punishment. State v. Killebrew, 115 W (2d) 243, 340 NW (2d) 470 (1983).
Where probation was conditioned on defendant's voluntary commitment to mental hospital but hospital refused admittance, court properly modified original sentence by imposing new sentence of 3 years imprisonment. Double jeopardy was not violated. State v. Sepulveda, 120 W (2d) 231, 353 NW (2d) 790 (1984).
Double jeopardy was not violated where trial court imposed illegal sentences then, in resentencing on valid conviction, imposed increased sentence. State v. Martin, 121 W (2d) 670, 360 NW (2d) 43 (1985).
Where police confiscated large quantity of drugs from empty home and next day searched defendant upon return home, confiscating small quantity of same drugs, defendant's conviction for lesser-included offense of possession and greater offense of possession with intent to deliver did not violate double jeopardy. State v. Stevens, 123 W (2d) 303, 367 NW (2d) 788 (1985).
Double jeopardy clause was not violated by state criminal prosecution for conduct which was basis of prior remedial civil forfeiture proceeding by municipality. Collateral estoppel does not bar criminal prosecution following guilty plea to violation of municipal ordinances, even if both actions arise from same transaction. State v. Kramsvogel, 124 W (2d) 101, 369 NW (2d) 145 (1985). Grady v. Corbin (495 US 508) does not alter this holding. State v. Thierfelder, 174 W (2d) 213, 495 NW (2d) 669 (1993).
Person may be convicted under 943.20 (1) (a) for concealing property and be separately convicted for transferring that property. State v. Tappa, 127 W (2d) 155, 378 NW (2d) 883 (1985).
Where trial court declined to acquit defendant but dismissed criminal information after jury deadlocked, double jeopardy barred state's appeal of dismissal. State v. Turely, 128 W (2d) 39, 381 NW (2d) 309 (1986).
Defendant waived double jeopardy claim when failing to move for dismissal of charges on retrial following mistrial to which defendant objected. State v. Mink, 146 W (2d) 1, 429 NW (2d) 99 (Ct. App. 1988).
Criminal prosecution for escape is not barred by double jeopardy provision when commenced following administrative disciplinary proceeding. State v. Quiroz, 149 W (2d) 691, 439 NW (2d) 621 (Ct. App. 1989).
A court may not, after accepting a guilty plea and ordering a presentence investigation, absent fraud or a party's intentionally withholding material information, vacate the plea and order reinstatement of the original information without violating right to freedom from double jeopardy. State v. Comstock, 168 W (2d) 915, 485 NW (2d) 354 (1992).
Analysis to determine whether multiple charges violate double jeopardy discussed. State v. Sauceda, 168 W (2d) 486, 485 NW (2d) 1 (1992).
For a defendant to invoke double jeopardy protection after successfully moving for a mistrial, the prosecutor must have acted with intent to subvert the double jeopardy protection to gain another chance to convict or to harass the defendant with multiple prosecutions. State v. Quinn, 169 W (2d) 620, 486 NW (2d) 542 (Ct. App. 1992).
Charges are multiplicitous if they are identical both in law and fact or if the legislature intended the allowable unit of prosecution for the offense to be a single count. State v. Davis, 171 W (2d) 711, 492 NW (2d) 174 (Ct. App. 1992).
Multiple prosecutions for a continuous failure to pay child support are allowed. State v. Grayson, 172 W (2d) 156, 493 NW (2d) 23 (1992).
Jeopardy attaches when jury is sworn; granting a mistrial, dismissing first jury and convening a second is prohibited absent "manifest necessity". Granting a mistrial due to the unavailability of a prosecution witness is to be given the most stringent scrutiny. Alternatives to mistrials are to be considered. State v. Barthels, 174 W (2d) 173, 495 NW (2d) 341 (1993).
First offender OMVWI prosecution is civil, and jeopardy does not attach to prevent subsequent criminal prosecution. Grady v. Corbin (495 US 508) does not alter this holding. State v. Thierfelder, 174 W (2d) 213, 495 NW (2d) 669 (1993).
Wisconsin Supreme Court will not interpret Wisconsin's double jeopardy clause to be broader than the U.S. Supreme Court's interpretation of the federal clause. State v. Kurzawa, 180 W (2d) 502, 509 NW (2d) 712 (1993).
A criminal conviction for violating terms of bail resulting from the conviction for another crime committed while released on bail does not constitute double jeopardy. State v. West, 181 W (2d) 792, 512 NW (2d) 207 (Ct. App. 1993).
Collateral estoppel is incorporated into the protection against double jeopardy and provides that when an ultimate issue of fact has once been determined, that parties cannot be relitigated between the same parties; the test is whether a rational jury could have grounded its verdict upon a separate issue. State v. Jacobs, 186 W (2d) 219, 519 NW (2d) 746 (Ct. App. 219).
In a case where charges from another county are consolidated with those from the county of the trial court, amendment of the charges from the other county is not permissible and the original trial court retains jurisdiction. Where the original charge does not have the identical elements of the amended charge double jeopardy does not prevent prosecution of the original charge in the original county although a guilty plea was entered to the amended charge in the other court. State v. Dillon, 187 W (2d) 39, ___NW (2d) ___ (Ct. App. 1994).
When judge dismisses charge after jury returns guilty verdict, prosecution's appeal does not violate double jeopardy. United States v. Wilson, 420 US 332.
Where juvenile court finds defendant guilty but unfit for treatment as juvenile, defendant is put in double jeopardy if tried in criminal court. Breed v. Jones, 421 US 519.
Guilty plea does not waive defense of double jeopardy. Menna v. New York, 423 US 61.
Where defense counsel's improper opening statement prompted trial judge to grant mistrial over defense objections, and where record provided sufficient justification for mistrial ruling, judge's failure to make explicit finding of "manifest necessity" did not support defendant's claim of double jeopardy. Arizona v. Washington, 434 US 497 (1978).
Double jeopardy clause did not bar federal prosecution of Indian previously convicted in tribal court of lesser included offense arising out of same incident. United States v. Wheeler, 435 US 313 (1978).
Double jeopardy clause bars second trial after reversal of conviction for insufficiency of evidence, as distinguished from reversal for trial error. Burks v. United States, 437 US 1 (1978).
There is no exception permitting retrial once defendant has been acquitted, no matter how egregiously erroneously. Sanabria v. United States, 437 US 54 (1978).
Test for determining whether 2 offenses are the same for purposes of barring successive prosecutions discussed. Illinois v. Vitale, 447 US 410 (1980).
Statute authorizing government to appeal sentence did not violate double jeopardy clause. United States v. Di Franceseo, 449 US 117 (1980).
Where judge granted defendant's motion for new trial on ground that evidence was insufficient to support jury's guilty verdict, double jeopardy barred second trial. Hudson v. Louisiana, 450 US 40 (1981).
Upon defendant's request, judge must instruct jury not to infer guilt from defendant's failure to testify. Carter v. Kentucky, 450 US 288 (1981).
Criminal defendant who successfully moves for mistrial may invoke double jeopardy clause to bar retrial only if mistrial was based on prosecutorial or judicial conduct intended to provoke defendant into moving for mistrial. Oregon v. Kennedy, 456 US 667 (1982).
Reversal based on weight of evidence, unlike reversal based on insufficient evidence, does not preclude retrial. Tibbs v. Florida, 457 US 31 (1982).
Defendant's conviction and sentence by Missouri for both armed criminal action and first-degree robbery in single trial did not violate double jeopardy. Missouri v. Hunter, 459 US 359 (1983).
Double jeopardy clause did not bar prosecution on more serious charges after defendant pled guilty to lesser included offenses. Ohio v. Johnson, 467 US 493 (1984).
Where jury acquitted on one count but was unable to agree on two others, double jeopardy did not bar retrial on remaining two counts. Richardson v. U.S. 468 US 317 (1984).
Under dual sovereignty doctrine, successive prosecutions by 2 states for same conduct are not barred by double jeopardy clause. Heath v. Alabama, 474 US 82 (1985).
Prosecutor's use of defendant's postarrest, post-Miranda warnings silence as evidence of defendant's sanity violated due process clause. Wainwright v. Greenfield, 474 US 284 (1986).
Appellate court remedied double jeopardy violation by reducing jeopardy-barred conviction to that of lesser included offense that wasn't jeopardy-barred. Morris v. Mathews, 475 US 237 (1986).
Exclusion of testimony about circumstances of confession deprived defendant of due process and other fundamental constitutional rights. Crane v. Kentucky, 476 US 683 (1986).
Where defendant breaches plea agreement and second degree murder conviction is vacated as a result, subsequent prosecution for first degree murder does not violate double jeopardy clause. Ricketts v. Adamson, 483 US 1 (1987).
Double jeopardy clause does not prohibit retrial after reversal of conviction based upon improperly admitted evidence which, once suppressed, would result in evidence insufficient to support conviction. Lockhart v. Nelson, 488 US 33, 102 LEd 2d 265 (1988).
Double jeopardy clause bars subsequent prosecution if, to establish essential element of offense charged, prosecution will prove conduct constituting offense for which defendant was previously prosecuted. Grady v. Corbin, 495 US 508, 109 LEd 2d 548 (1990).
Grady v. Corbin "same conduct" test is overruled. United States v. Dixon, 509 US ___, 125 LEd 2d 556 (1993).
Custody in the county jail incidental to conviction added to the maximum term imposed on conviction subjected petitioner to multiple penalties for one offense in excess of the maximum statutory penalty, in violation of the guarantee against double jeopardy of the 5th amendment. Taylor v. Gray, 375 F Supp. 790.
Double jeopardy was not violated where defendant was convicted of separate offenses under 161.41 for simultaneous delivery of different controlled substances. Leonard v. Warden, Dodge Correctional Inst. 631 F Supp. 1403 (1986).
Multiple Punishment in Wisconsin and the Wolske Decision: Is It Desirable to Permit Two Homicide Convictions for Causing a Single Death? 1990 WLR 553.
State v. Grayson: Clouding the Already Murky Waters of Unit Prosecution Analysis in Wisconsin. Leslie. 1993 WLR 811.
DUE PROCESS
It is not necessary to hold a 2nd Goodchild type hearing before admitting testimony of a 2nd witness to the same confession. State v. Watson, 46 W (2d) 492, 175 NW (2d) 244.
The sentencing duties of a trial court following a 2nd conviction after retrial or upon resentencing bars a trial court from imposing an increased sentence unless events occur or come to the sentencing court's attention subsequent to the first imposition of sentence which warrant an increased penalty and the court affirmatively states the ground for increasing the sentence in the record. Denny v. State, 47 W (2d) 541, 178 NW (2d) 38.
An arrest is not void because of a 3 months' interval between the time of the offense (narcotics sale) and the arrest. Gonzales v. State, 47 W (2d) 548, 177 NW (2d) 843.
A lineup, wherein 2 suspects are required to wear special clothing and where a number of victims were allowed to identify them out loud, thus influencing others, was unfair and later influenced in-court identification. Jones v. State, 47 W (2d) 642, 178 NW (2d) 42.
The fact that a witness is shown one photograph and that defendant's counsel was not present does not prove a denial of due process. Kain v. State, 48 W (2d) 212, 179 NW (2d) 777.
The rule that a defendant during a trial should not be handcuffed does not extend to periods outside the courtroom and the fact that some jurors saw the defendant shackled is not prejudicial. State v. Cassel, 48 W (2d) 619, 180 NW (2d) 607.
It is not a violation of due process for the judge who conducts a hearing as to the admissibility of a confession to continue as trial judge in the case. State v. Cleveland, 50 W (2d) 666, 184 NW (2d) 899.
A statute denying probation to 2nd offenders and which does not require proof of criminal intent is constitutional. State v. Morales, 51 W (2d) 650, 187 NW (2d) 841.
Where a defendant is no longer entitled to a substitution of judge, prejudice in fact of the judge must be shown. State v. Garner, 54 W (2d) 100, 194 NW (2d) 649.
A child committed to the department and who is released under supervision, who then violates the terms of the release is entitled to the same protections as an adult as to a hearing on probation revocation. State ex rel. Bernal v. Hershman, 54 W (2d) 626, 196 NW (2d) 721.
Where defendant, believing he was seriously wounded, began to tell what happened and was then given the Miranda warnings, his further continuation amounted to a waiver of his rights. He need not expressly state that he was waiving them, where the record shows he was conscious and alert and said he understood his rights. State v. Parker, 55 W (2d) 131, 197 NW (2d) 742.
