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.
The uniform detainer act (976.05) is unconstitutional in (1) failing to require that the prisoner be notified of his rights, (2) denying him equal protection similar to that afforded prisoners under the criminal extradition act, and (3) not requiring a judicial hearing. The use of a hearing similar to that required under the extradition act would cure the defects. State ex rel. Garner v. Gray, 55 W (2d) 574, 201 NW (2d) 163.
Section 973.05 (1) (permission for delay of 60 days for payment of a fine) and 973.07 (commitment to jail for nonpayment) are not unconstitutional, since the court may stay the sentence and put defendant on probation. The burden of proving inability to pay is on the defendant. State ex rel. Pedersen v. Blessinger, 56 W (2d) 286, 201 NW (2d) 778.
The duty of the state to disclose exculpatory evidence is not excused by the district attorney's belief that the evidence is incredible, but failure to disclose is not error where the evidence would not have affected the conviction. Nelson v. State, 59 W (2d) 474, 208 NW (2d) 410.
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.
Due process requires that the juvenile be afforded a copy of hearing examiner's report recommending revocation and the opportunity to object thereto by written submission prior to the decision of the H & S S department secretary. State ex rel. R. R. v. Schmidt, 63 W (2d) 82, 216 NW (2d) 18.
Circumstances to be considered in determining whether the delay between alleged commission of a crime and arrest denies a defendant due process of law include: (1) The period of the applicable statute of limitations; (2) prejudice to the conduct of the defense; (3) intentional prosecution delay to gain some tactical advantage; and (4) the loss of evidence or witnesses, and the dimming of memories; but the mere possibility of prejudice from these factors is not alone sufficient to demonstrate that a fair trial is impossible __ actual prejudice must be shown. State v. Rogers, 70 W (2d) 160, 233 NW (2d) 480.
Photo identification of accused discussed. Mentek v. State, 71 W (2d) 799, 238 NW (2d) 752.
Mere fact that accused who demanded jury trial received a substantially greater sentence than an accomplice who pleaded guilty does not constitute punishment for exercising right to jury trial or denial of either due process or equal protection. Drinkwater v. State, 73 W (2d) 674, 245 NW (2d) 664.
Persons committed under ch. 975 are entitled to periodic review hearings which afford the same minimal requirements of due process as in parole determinations. Habeas corpus is appropriate remedy. State ex rel. Terry v. Schubert, 74 W (2d) 487, 247 NW (2d) 109.
Sentencing judge does not deny due process by considering pending criminal charges in determining sentence. Handel v. State, 74 W (2d) 699, 247 NW (2d) 711.
Due process requires that prosecutor sua sponte disclose highly exculpatory evidence which would raise a reasonable doubt where none existed before. Ruiz v. State, 75 W (2d) 230, 249 NW (2d) 277.
Trial court did not err in refusing mistrial where police reports concerning unrelated pending charge against defendant and defendant's mental history were accidentally sent to jury room. Johnson v. State, 75 W (2d) 344, 249 NW (2d) 593.
Defendant received fair, although not perfect, trial where prosecution witness attempted to ingratiate self with jury prior to trial and another prosecution witness violated sequestration order. Nyberg v. State, 75 W (2d) 400, 249 NW (2d) 524.
Defendant's refusal to name accomplices was properly considered by sentencing judge. Because defendant had pleaded guilty to crime, self-incrimination would not have resulted from requested cooperation. Holmes v. State, 76 W (2d) 259, 251 NW (2d) 56.
Parole revocation hearing is not part of a criminal prosecution and thus the full panoply of rights, including Miranda warnings and the exclusionary rule, are not applicable. State ex rel. Struzik v. H&SS Dept. 77 W (2d) 216, 252 NW (2d) 660.
Due process does not require that a person know with certainty which crime, among several, the person is committing, at least until the prosecution exercises its discretion under 939.65. Harris v. State, 78 W (2d) 357, 254 NW (2d) 291.
Due process rationale of Doyle v. Ohio, 426 US 610 (1976) is limited to prosecutorial use of defendants' custodial interrogation silence to impeach exculpatory statements made during trial. Rudolph v. State, 78 W (2d) 435, 254 NW (2d) 471.
Due process does not require that a John Doe witness be advised of the nature of the proceeding or that the witness is a "target" of the investigation. Ryan v. State, 79 W (2d) 83, 255 NW (2d) 910.
Discussion of due process requirements where administrative body imposes regulatory or remedial sanctions upon conduct also, and incidentally, subject to criminal punishment. Layton School of Art & Design v. WERC, 82 W (2d) 324, 262 NW (2d) 218.
Right to fair trial does not entitle defendant to inspect entire file of prosecutor. Matter of State ex rel. Lynch v. County Ct. 82 W (2d) 454, 262 NW (2d) 773.
Under "totality of circumstances" test, lineup and in-court identifications were properly admitted, although earlier photographic identification was unnecessarily suggestive. Simos v. State, 83 W (2d) 251, 265 NW (2d) 278 (1978).
See note to Art. I, sec. 7, citing State v. Wollman, 86 W (2d) 459, 273 NW (2d) 225 (1979).
Accused has right to answer some questions after Miranda warning and then to reassert privilege and break off all questioning. Odell v. State, 90 W (2d) 149, 279 NW (2d) 706 (1979).
Trial courts do not have subject matter jurisdiction to convict defendants under unconstitutionally vague statutes. Right to raise issue on appeal cannot be waived, regardless of guilty plea. State ex rel. Skinkis v. Treffert, 90 W (2d) 528, 280 NW (2d) 316 (Ct. App. 1979).
Probationer's due process right to prompt revocation proceedings was not triggered where probationer was detained as result of unrelated criminal proceedings. State ex rel. Alvarez v. Lotter, 91 W (2d) 329, 283 NW (2d) 408 (Ct. App. 1979).
Before "totality of circumstances" analysis is applied to confrontation identification, it must first be determined whether police deliberately contrived confrontation between witness and defendant. State v. Marshall, 92 W (2d) 101, 284 NW (2d) 592 (1979).
Due process requires that evidence reasonably supports finding of guilt beyond reasonable doubt. State v. Stawicki, 93 W (2d) 63, 286 NW (2d) 612 (Ct. App. 1979).
Eight-month delay between date of alleged offense and filing of complaint did not violate defendant's due process rights. State v. Davis, 95 W (2d) 55, 288 NW (2d) 870 (Ct. App. 1980).
Exculpatory hearsay lacked assurances of trustworthiness and was properly excluded. State v. Brown, 96 W (2d) 238, 291 NW (2d) 528 (1980).
