The double jeopardy clause was not violated where the trial court imposed illegal sentences then, in resentencing on a valid conviction, imposed an increased sentence. State v. Martin, 121 Wis. 2d 670, 360 N.W.2d 43 (1985).
Where police confiscated a large quantity of drugs from an empty house and the next day searched the defendant upon his return home confiscating a small quantity of the same drugs, the defendant's conviction for a lesser-included offense of possession and greater offense of possession with intent to deliver did not constitute double jeopardy. State v. Stevens, 123 Wis. 2d 303, 367 N.W.2d 788 (1985).
The double jeopardy clause was not violated by a state criminal prosecution for conduct that was the basis of a prior remedial civil forfeiture proceeding by a municipality. Collateral estoppel does not bar a criminal prosecution following a guilty plea to a violation of municipal ordinances, even if both actions arise from the same transaction. State v. Kramsvogel, 124 Wis. 2d 101, 369 N.W.2d 145 (1985). See also State v. Thierfelder, 174 Wis. 2d 213, 495 N.W.2d 669 (1993).
A person may be convicted under s. 943.20 (1) (a) for concealing property and be separately convicted for transferring that property. State v. Tappa, 127 Wis. 2d 155, 378 N.W.2d 883 (1985).
Where the trial court declined to acquit the defendant but dismissed the criminal information after the jury deadlocked, double jeopardy barred the state's appeal of the dismissal. State v. Turely, 128 Wis. 2d 39, 381 N.W.2d 309 (1986).
The defendant waived a double jeopardy claim when failing to move for a dismissal of the charges at a retrial following a mistrial to which the defendant objected. State v. Mink, 146 Wis. 2d 1, 429 N.W.2d 99 (Ct. App. 1988).
A criminal prosecution for escape is not barred by the double jeopardy clause when commenced following an administrative disciplinary proceeding. State v. Quiroz, 149 Wis. 2d 691, 439 N.W.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 the double jeopardy clause. State v. Comstock, 168 Wis. 2d 915, 485 N.W.2d 354 (1992).
Whether multiple charges constitute double jeopardy is discussed. State v. Sauceda, 168 Wis. 2d 486, 485 N.W.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 Wis. 2d 620, 486 N.W.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 Wis. 2d 711, 492 N.W.2d 174 (Ct. App. 1992).
Multiple prosecutions for a continuous failure to pay child support are allowed. State v. Grayson, 172 Wis. 2d 156, 493 N.W.2d 23 (1992).
Jeopardy attaches when the jury is sworn. Granting a mistrial, dismissing the jury and convening a 2nd jury 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 Wis. 2d 173, 495 N.W.2d 341 (1993).
First offender OMVWI prosecution is civil, and jeopardy does not attach to prevent a subsequent criminal prosecution. State v. Thierfelder, 174 Wis. 2d 213, 495 N.W.2d 669 (1993).
The state 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 Wis. 2d 502, 509 N.W.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 Wis. 2d 792, 512 N.W.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 issue 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 Wis. 2d 219, 519 N.W.2d 746 (Ct. App. 219).
To determine whether charges are improperly multiplicitous the following two-prong test is applied: (1) Whether the charged offenses are identical in law and fact, and (2) the legislative intent as to the allowable unit of prosecution for the offense. State v. Richter, 189 Wis. 2d 105, 525 N.W.2d 108 (Ct. App. 1994).
An acquittal does not prove innocence. Evidence of a crime for which a defendant was acquitted may be offered to show motive, plan and other matters authorized under s. 904.04 if a jury could find by a preponderance of the evidence that the defendant committed the other act. State v. Landrum, 191 Wis. 2d 107, 528 N.W.2d 36 (Ct. App. 1995).
The extension of a previously entered juvenile dispositional order due to the juvenile's participation in an armed robbery while subject to the order was not a "disposition" of the armed robbery charge. Subsequent prosecution of the armed robbery charge in adult court did not violate s. 48.39 (now 938.39) or the protection against double jeopardy. State v. Stephens, 201 Wis. 2d 82, 548 N.W.2d 108 (Ct. App. 1996).
Whether a statute is criminal or civil for purposes of double jeopardy analysis depends on whether the legislature intended the statute to provide a remedial civil sanction and whether there are aspects of the statute which are so punitive either in effect or nature as to render the overall purpose punishment. State v. McMaster, 206 Wis. 2d 30, 556 N.W.2d 673 (1996).
Student disciplinary action under University of Wisconsin system administrative rules does not constitute punishment which triggers double jeopardy protection. City of Oshkosh v. Winkler, 206 Wis. 2d 537, 557 N.W.2d 464 (Ct. App. 1996).
Absent an express waiver, the right to assert a violation of the double jeopardy clause is not waived by the entry of a guilty plea. State v. Hubbard, 206 Wis. 2d 650, 558 N.W.2d 126 (Ct. App. 1996).
Service in prison of time successfully served on parole and forfeited through revocation does not constitute punishment within the meaning of the double jeopardy clause. State ex rel. Ludtke v. DOC, 215 Wis. 2d 1, 572 N.W.2d 864 (Ct. App. 1997).
A defendant may be charged and convicted of multiple crimes arising out of one criminal act only if the legislature intends it. Where one charged offense is not a lesser included offense of the other, there is a presumption that the legislature intended to allow punishment for both offenses which is rebutted only if other factors clearly indicate a contrary intent. State v. Lechner, 217 Wis. 2d 392, 576 N.W.2d 912 (1998).
Whether a single course of conduct has been impermissibly divided into separate violations of the same statute requires consideration of whether each offense is identical in fact and law and whether the legislature intended to allow multiple convictions. For each victim there is generally a separate offense. Legislative intent is shown by whether the statute punishes an individual for each act or for the course of conduct those acts constitute. State v. Lechner, 217 Wis. 2d 392, 576 N.W.2d 912 (1998).
The protection against double jeopardy embraces the defendant's right of having his or her trial completed by a particular tribunal. When the state moves for a mistrial over the objections of the defense, the trial court may not grant the motion unless there is a manifest necessity for the act. State v. Collier, 220 Wis. 2d 825, 584 N.W.2d 689 (Ct. App. 1998).
The double jeopardy clause prevents retrial where there was no motion for mistrial but where prosecutorial misconduct, the motivation for and effect of which were not known to the defendant at trail, had been committed. State v. Lettice, 221 Wis. 2d 69, 585 N.W.2d 171 (Ct. App. 1998).
Multiple criminal punishments are appropriate for multiple acts, but not multiple thoughts. Multiple punishments for a single act of enticement where the defendant intended to commit multiple illegal acts was not allowable. State v. Church, 223 Wis. 2d 641, 589 N.W.2d 638 (Ct. App. 1998).
If the legislature unambiguously has enacted 2 distinct prohibitions, each requiring proof of an element the other does not, the Blockburger presumption of intent to allow multiple punishment applies. But when the statue is language is ambiguous, the rule of lenity applies, requiring resolving the ambiguity against allowing multiple punishment. State v. Church, 223 Wis. 2d 641, 589 N.W.2d 638 (Ct. App. 1998).
An ultimate issue of fact that has been necessarily litigated cannot be relitigated although the judgment may have been influenced by the defendant's untruthful testimony. That a perjury trial would decide whether the defendant lied about the ultimate fact, rather than deciding the ultimate fact itself, is a distinction without a difference, as proving the lie would require proving the fact itself. State v. Canon, 230 Wis. 2d 512, 602 N.W.2d 316 (Ct. App. 1999).
The prohibition against double jeopardy does not prevent convictions for both attempt and conspiracy. to commit the same offense. State v. Moffett, 2000 WI App 67, 233 Wis. 2d 628, 608 N.W.2d 733.
When the judge dismissed a charge after the jury returned a guilty verdict, the prosecution's appeal did not constitute double jeopardy. United States v. Wilson, 420 U.S. 332.
Where a juvenile court found the defendant guilty but unfit for treatment as a juvenile, the defendant would be put in double jeopardy if tried in a criminal court. Breed v. Jones, 421 U.S. 519.
A guilty plea does not waive the defense of double jeopardy. Menna v. New York, 423 U.S. 61.
Where defense counsel's improper opening statement prompted the trial judge to grant a mistrial over defense objections, and where the record provided sufficient justification for the mistrial ruling, the judge's failure to make explicit findings of "manifest necessity" did not support the defendant's claim of double jeopardy. Arizona v. Washington, 434 U.S. 497 (1978).
The protection against double jeopardy did not bar federal prosecution of an American Indian previously convicted in a tribal court of a lesser included offense arising out of the same incident. United States v. Wheeler, 435 U.S. 313 (1978).
The double jeopardy clause bars a second trial after reversal of a conviction for insufficiency of evidence, as distinguished from reversal for trial error. Burks v. United States, 437 U.S. 1 (1978).
There is no exception permitting a retrial once defendant has been acquitted, no matter how egregiously erroneous. Sanabria v. United States, 437 U.S. 54 (1978).
The test for determining whether 2 offenses are the same for purposes of barring successive prosecutions is discussed. Illinois v. Vitale, 447 U.S. 410 (1980).
A statute authorizing the government to appeal a sentence did not violate the double jeopardy clause. United States v. Di Franceseo, 449 U.S. 117 (1980).
Where the judge granted the defendant's motion for a new trial on the ground that the evidence was insufficient to support the jury's guilty verdict, the double jeopardy clause barred a second trial. Hudson v. Louisiana, 450 U.S. 40 (1981).
A criminal defendant who successfully moves for a mistrial may invoke the double jeopardy clause to bar a retrial only if the mistrial was based on prosecutorial or judicial conduct intended to provoke the defendant into moving for the mistrial. Oregon v. Kennedy, 456 U.S. 667 (1982).
Reversal based on the weight of the evidence, unlike reversal based on insufficient evidence, does not preclude retrial. Tibbs v. Florida, 457 U.S. 31 (1982).
The defendant's conviction and sentence by Missouri for both armed criminal action and first-degree robbery in single trial did not constitute double jeopardy. Missouri v. Hunter, 459 U.S. 359 (1983).
The double jeopardy clause did not bar prosecution on more serious charges after the defendant pled guilty to lesser included offenses. Ohio v. Johnson, 467 U.S. 493 (1984).
Where the jury acquitted on one count but was unable to agree on 2 others, the double jeopardy clause did not bar retrial on the remaining 2 counts. Richardson v. U.S. 468 U.S. 317 (1984).
Under the dual sovereignty doctrine, successive prosecutions by 2 states for the same conduct does not constitute double jeopardy. Heath v. Alabama, 474 U.S. 82 (1985).
An appellate court remedied a double jeopardy violation by reducing a jeopardy-barred conviction to that of lesser included offense that wasn't jeopardy-barred. Morris v. Mathews, 475 U.S. 237 (1986).
Where the defendant breaches a plea agreement and a 2nd degree murder conviction is vacated as a result, a subsequent prosecution for 1st degree murder does not constitute double jeopardy. Ricketts v. Adamson, 483 U.S. 1 (1987).
The double jeopardy clause does not prohibit retrial after the reversal of a conviction based upon improperly admitted evidence which, once suppressed, would result in evidence insufficient to support the conviction. Lockhart v. Nelson, 488 U.S. 33, 102 L. Ed. 2d 265 (1988).
The double jeopardy clause bars a subsequent prosecution if, to establish an essential element of the offense charged, the prosecution will prove conduct constituting the offense for which the defendant was previously prosecuted. Grady v. Corbin, 495 U.S. 508, 109 L. Ed. 2d 548 (1990).
The Grady v. Corbin "same conduct" test is overruled. United States v. Dixon, 509 U.S. 688, 125 L. Ed. 2d 556 (1993).
Custody in the county jail incidental to conviction added to the maximum term imposed on conviction subjected the petitioner to multiple penalties for one offense in excess of the maximum statutory penalty and in violation of the guarantee against double jeopardy. Taylor v. Gray, 375 F. Supp. 790.
Double jeopardy was not violated where the defendant was convicted of separate offenses under s. 161.41 [now 961.41] f\or 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 Wis. 2d 492, 175 N.W.2d 244.
The sentencing duties of a trial court following a 2nd conviction after retrial or upon resentencing bars the 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 on the record. Denny v. State, 47 Wis. 2d 541, 178 N.W.2d 38.
An arrest is not void because of a 3 month interval between the time of the offense and the arrest. Gonzales v. State, 47 Wis. 2d 548, 177 N.W.2d 843.
A lineup, wherein 2 suspects were 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 Wis. 2d 642, 178 N.W.2d 42.
An out of court identification by a witness shown only a photograph of the defendant and no other persons was not a denial of due process, but does reflect on the weight given the evidence. Defense counsel need not be present at the identification. Kain v. State, 48 Wis. 2d 212, 179 N.W.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 Wis. 2d 619, 180 N.W.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 the trial judge in the case. State v. Cleveland, 50 Wis. 2d 666, 184 N.W.2d 899.
A statute denying probation to 2nd offenders and which does not require proof of criminal intent is constitutional. State v. Morales, 51 Wis. 2d 650, 187 N.W.2d 841.
Where a defendant is no longer entitled to a substitution of judge, prejudice in fact by the judge must be shown. State v. Garner, 54 Wis. 2d 100, 194 N.W.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 Wis. 2d 626, 196 N.W.2d 721.
Where a 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 Wis. 2d 131, 197 N.W.2d 742.
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 prejudicial error where the evidence would not have affected the conviction. Nelson v. State, 59 Wis. 2d 474, 208 N.W.2d 410.
Due process requires that a juvenile be afforded a copy of a hearing examiner's report recommending revocation of after care supervision and the opportunity to object thereto in writing prior to the decision of the H & S S department secretary. State ex rel. R. R. v. Schmidt, 63 Wis. 2d 82, 216 N.W.2d 18.
Circumstances to be considered in determining whether the delay between the alleged commission of a crime and an 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. 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 Wis. 2d 160, 233 N.W.2d 480.
A photo identification using one color and 4 black and white photos where 2of the 5, including the the color photo, were of the defendant was not impermissibly suggestive. Mentek v. State, 71 Wis. 2d 799, 238 N.W.2d 752.
The fact that the accused who demanded a jury trial received a substantially greater sentence than an accomplice who pleaded guilty does not constitute punishment for exercising the right to a jury trial or a denial of either due process or equal protection. Drinkwater v. State, 73 Wis. 2d 674, 245 N.W.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 an appropriate remedy. State ex rel. Terry v. Schubert, 74 Wis. 2d 487, 247 N.W.2d 109.
A sentencing judge does not deny due process by considering pending criminal charges in determining a sentence. Handel v. State, 74 Wis. 2d 699, 247 N.W.2d 711.
Due process requires that a prosecutor voluntarily disclose highly exculpatory evidence which would raise a reasonable doubt where none existed before. Ruiz v. State, 75 Wis. 2d 230, 249 N.W.2d 277.
The trial court did not err in refusing to grant a mistrial where police reports concerning an unrelated pending charge against the defendant and the defendant's mental history were accidentally sent to the jury room. Johnson v. State, 75 Wis. 2d 344, 249 N.W.2d 593.
The defendant received a fair, though not perfect, trial where a prosecution witness attempted to ingratiate himself with the jury prior to trial and another prosecution witness violated a sequestration order. Nyberg v. State, 75 Wis. 2d 400, 249 N.W.2d 524.
The defendant's refusal to name accomplices was properly considered by the sentencing judge. Because the defendant had pleaded guilty to a crime, self-incrimination would not have resulted from the requested cooperation. Holmes v. State, 76 Wis. 2d 259, 251 N.W.2d 56.
A 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. DHSS, 77 Wis. 2d 216, 252 N.W.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 charging discretion. Harris v. State, 78 Wis. 2d 357, 254 N.W.2d 291.
The due process rationale of Doyle v. Ohio, 426 U.S. 610 is limited to prosecutorial use of a defendants' custodial interrogation silence to impeach exculpatory statements made during trial. Rudolph v. State, 78 Wis. 2d 435, 254 N.W.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 Wis. 2d 83, 255 N.W.2d 910.
The due process requirements where an administrative body imposes regulatory or remedial sanctions upon conduct that is also subject to criminal punishment are discussed. Layton School of Art & Design v. WERC, 82 Wis. 2d 324, 262 N.W.2d 218.
The right to a fair trial does not entitle the defendant to inspect the entire file of the prosecutor. Matter of State ex rel. Lynch v. County Ct. 82 Wis. 2d 454, 262 N.W.2d 773.
Under the "totality of circumstances" test, lineup and in-court identifications were properly admitted, although an earlier photographic identification was unnecessarily suggestive. Simos v. State, 83 Wis. 2d 251, 265 N.W.2d 278 (1978).
A deliberate failure to object to prejudicial evidence at trial constitutes a binding waiver. Murray v. State, 83 Wis. 2d 621, 266 N.W.2d 288 (1978).
The test to determine if the denial of a continuance acted to deny the defendant of either due process or the effective right of counsel is discussed. State v. Wollman, 86 Wis. 2d 459, 273 N.W.2d 225 (1979).
