The controlling case concerning the right to a speedy trial is Barker v. Wingo, 407 US 514 (1972). Fifteen month delay held not prejudicial under facts of case. Scarbrough v. State, 76 W (2d) 87, 250 NW (2d) 354.
Delay of 84 days between defendant's first court appearance and trial on misdemeanor traffic charges was not so inordinate as to raise presumption of prejudice. State v. Mullis, 81 W (2d) 454, 260 NW (2d) 696.
Speedy trial right attaches when complaint and warrant are issued; pretrial determination that right has been violated may be made only when evidence shows extraordinary circumstances justifying dismissal with prejudice. State v. Lemay, 155 W (2d) 202, 455 NW (2d) 233 (1990).
Right to speedy trial extends from the time of arrest or criminal charging up through the sentencing phase of prosecution. A defendant must show substantial and demonstrable prejudice for a postconviction violation of this right to be found. State v. Allen, 179 W (2d) 67, 505 NW (2d) 801 (Ct. App. 1993).
Delay between arrest and indictment may deny speedy trial without showing of actual prejudice. Dillingham v. United States, 423 US 64.
Defendant may not, before trial, appeal denial of motion to dismiss based on right to speedy trial. United States v. MacDonald, 435 US 850 (1978).
No right to speedy trial arises until charges are pending. United States v. MacDonald, 456 US 1 (1982).
Time during which defendants were neither under indictment nor subjected to any official restraint does not weigh towards defendant's speedy trial claims. United States v. Loud Hawk, 474 US 302 (1986).
Following guilty plea, defendant could not raise speedy trial issue. United States v. Gaertner, 583 F (2d) 308 (1978).
MISCELLANEOUS
A defendant can waive his right to be present at a proceeding where the court ordered his case consolidated with another. It is not error at the start of a trial to revoke bail and remand defendant to the custody of the sheriff. Beverly v. State, 47 W (2d) 725, 177 NW (2d) 870.
A prisoner at Fox Lake, Dodge county, who escapes from university hospitals while being treated there, may be tried for the escape in Dodge county. Dolan v. State, 48 W (2d) 696, 180 NW (2d) 623.
Defendant is not prejudiced when the court amends the charge against him to charge a lesser included offense without informing him of the nature of the amended charge or allowing him to plead to it. Moore v. State, 55 W (2d) 1, 197 NW (2d) 820.
It is not a violation of defendant's rights if he is prosecuted by information and not by indictment. State v. Lehtola, 55 W (2d) 494, 198 NW (2d) 354.
A defendant is not entitled to be present at a conference in chambers if only questions of law or preliminary matters of procedure are discussed. Leroux v. State, 58 W (2d) 671, 207 NW (2d) 589.
Although a complaint need not allege with precision the time of commission of a crime where such is not a material element of the offense charged, the state's latitude in the charging process is restricted by a defendant's constitutional right to be informed of the nature and cause of the accusation; and the sufficiency of a complaint is determined by: (1) Whether the accusation states an offense to which defendant is able to plead and prepare a defense and (2) whether conviction or acquittal is a bar to another prosecution for the same offense. State v. George, 69 W (2d) 92, 230 NW (2d) 253.
Participation of state in promulgating adverse publicity is relevant in determining whether trial court abused its discretion in not granting venue change. Briggs v. State, 76 W (2d) 313, 251 NW (2d) 12.
Only defendant may waive right to venue where the crime was committed. State v. Mendoza, 80 W (2d) 122, 258 NW (2d) 260.
Where defendant was not relying on alibi defense and did not file notice of alibi, judge did not abuse discretion in barring alibi testimony. State v. Burroughs, 117 W (2d) 293, 344 NW (2d) 149 (1984).
If defendant acquiesces in counsel's decision that defendant not testify, defendant's right to testify is waived. State v. Albright, 96 W (2d) 122, 291 NW (2d) 487 (1980).
Constitutional error is harmless if court can declare belief that it was harmless beyond a reasonable doubt because there is no reasonable possibility error contributed to conviction. State v. Brecht, 143 W (2d) 297, 421 NW (2d) 96 (1988).
Two factors determine sufficiency of criminal charge: whether it states offense to which defendant can plead and whether disposition will bar future prosecution for same offense; additional factors discussed. State v. Fawcett, 145 W (2d) 244, 426 NW (2d) 91 (Ct. App. 1988).
Judge's bias against counsel must be severe to translate into unconstitutional partiality against litigant. State v. Hollingsworth, 160 W (2d) 883, 467 NW (2d) 555 (Ct. App. 1991).
Rule for pleadings in criminal obscenity cases shall be same as for all other criminal cases; where pleading fails to set forth all elements of crime but includes correct citation, all elements are sufficiently alleged. State v. Petrone, 161 W (2d) 530, 468 NW (2d) 676 (1991).
Notice of the nature and cause of the accusations is a key factor in determining whether an amended charging document has prejudiced a defendant. State v. Neudorff, 170 W (2d) 608, 489 NW (2d) 689 (Ct. App. 1992).
A law providing state-wide venue for certain sex crimes would be unconstitutional. 60 Atty. Gen. 450.
Absolute prohibition of paralegal-conducted jail interviews is unjustifiable restriction of inmates' due process right of access to the courts. Restrictions on such interviews must be justified by a compelling and overwhelming state interest. 64 Atty. Gen. 152.
Any closure of suppression hearing must advance overriding interest likely to be prejudiced; closure must be no broader than necessary to protect that interest; court must consider alternatives; and court must make finding adequate to support closure. Waller v. Georgia, 467 US 39 (1984).
The press and public have a first amendment right to access to attend criminal trials, which cannot be closed absent an overriding interest. 64 MLR 717 (1981).
I,8 Prosecutions; double jeopardy; self-incrimination; bail; habeas corpus. Section 8. [As amended Nov. 1870 and April 1981]
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).
