A defendant was not subjected to double jeopardy when, after a presentence investigation following a no contest plea, the court took the defendant's plea for a second time and engaged the defendant in a colloquy to determine if the plea was knowing and intelligent. For double jeopardy to apply, an acquittal or dismissal followed by a second prosecution for the same offense is required. State v. Clark,
2000 WI App 245,
239 Wis. 2d 417,
620 N.W.2d 435,
00-0932.
Issue preclusion does not bar the prosecution of a defendant for perjury who was tried and acquitted on a single issue when newly discovered evidence suggests that the defendant falsely testified on the issue. The state must show that: 1) the evidence came to the state's evidence after trial; 2) the state was not negligent in failing to discover the evidence; 3) the evidence is material to the issue; and 4) the evidence is not merely cumulative. State v. Canon,
2001 WI 11,
241 Wis. 2d 164,
622 N.W.2d 270,
98-3519.
When a defendant claims the state did not present enough evidence at trial to support splitting a course of conduct into multiple violations of the same statute, a multiplicity objection is waived if it is not raised prior to the time the case is submitted to the jury. State v. Koller,
2001 WI App 253,
248 Wis. 2d 259,
635 N.W.2d 838,
99-3084.
When a defendant repudiates a negotiated plea agreement on the ground that it contains multiplicitous counts, the defendant materially and substantially breaches the agreement. When an accused successfully challenges a plea to and a conviction on multiplicity grounds and the information has been amended pursuant to a negotiated plea agreement by which the state made charging concessions, ordinarily the remedy is to reverse the convictions and sentences, vacate the plea agreement, and reinstate the original information, but a different remedy may be appropriate. State v. Robinson,
2002 WI 9,
249 Wis. 2d 553,
638 N.W.2d 564,
00-2435.
A court's correction of an invalid sentence by increasing the punishment does not constitute double jeopardy; the initial sentence being invalid, the second, more severe sentence is the only valid sentence imposed. State v. Helm,
2002 WI App 154,
256 Wis. 2d 285,
647 N.W.2d 405,
01-2398.
If a defendant makes a fraudulent representation to the court, which the court accepts and relies upon in granting a sentence, the court may later declare the sentence void. Double jeopardy does not bar a subsequently increased sentence. State v. Jones,
2002 WI App 208, 257 Wis. 2d. 163,
650 N.W.2d 855,
01-2969.
There is a spectrum of deference that appellate courts may apply to trial court findings of mistrials ranging from strictest scrutiny to the greatest deference, depending on the circumstances. However, even if the mistrial order is entitled to great deference, the reviewing court must find that the trial judge exercised sound discretion in concluding that the state satisfied its burden of showing a manifest necessity for the mistrial. State v. Seefeldt,
2003 WI 47,
261 Wis. 2d 383,
661 N.W.2d 822,
01-1969.
Trial courts may correct obvious errors in sentencing when it is clear that a good faith mistake was made in an initial sentencing pronouncement, the court promptly recognizes the error, and the court, by reducing an erroneous original sentence on one count and increasing the original sentence on another, seeks to impose a lawfully structured sentence that achieves the overall disposition that the court originally intended. State v. Gruetzmacher,
2004 WI 55,
271 Wis. 2d 585,
679 N.W.2d 533,
02-3014.
In a multi-count trial, if the defendant is convicted of one or more counts and acquitted of one or more counts, and the defendant successfully appeals the conviction or convictions, the acquittals pose no direct bar to retrying the defendant. Rather, acquittal may indirectly impact the state's ability to retry the defendant under collateral estoppel principles. State v. Henning,
2004 WI 89,
273 Wis. 2d 352,
681 N.W.2d 871,
02-1287.
The state's attempt to retry the defendant for armed robbery alleging the use of a different weapon after a trial court conclusion that an acquittal on a first armed robbery charge resulted from insufficient evidence of the use of a gun violated double jeopardy protections. It did not necessarily follow that the state was prevented from pursuing a charge of simple robbery however. Losey v. Frank,
268 F. Supp. 2d 1066 (2003).
A guilty plea waives a multiplicity claim anytime the claim cannot be resolved on the record, regardless whether a case presents on direct appeal or collateral attack. State v. Kelty,
2006 WI 101,
294 Wis. 2d 62,
716 N.W.2d 886,
03-3055.
Retrial is barred when a defendant moves for and obtains a mistrial due to prosecutorial overreaching when the prosecutor intentionally attempts to prejudice the defendant or create another chance to convict. A police officer's testimony that forms the basis of a mistrial will not be imputed to the prosecutor in the absence of evidence of collusion by the prosecutor's office intended to provoke the defendant to move for a mistrial and does not constitute prosecutorial overreaching barring a retrial. State v. Jaimes,
2006 WI App 93,
292 Wis. 2d 656,
715 N.W.2d 669,
05-1511.
The defendant's argument that his conviction on two bail-jumping counts was multiplicitous because the preliminary hearings at which he failed to appear were scheduled for the same time and he had signed only one bond for the two underlying cases failed because the counts were different in fact. Proof of notification and failure to appear in one case would not prove notification and failure to appear in the other, making the two charges different in nature and therefore different in fact. State v. Eaglefeathers,
2009 WI App 2,
316 Wis. 2d 152,
762 N.W.2d 690,
07-0845.
Multiple punishments may not be imposed for charges that are identical in law and fact unless the legislature intended to impose such punishments. An "elements-only" test, to determine whether charges are identical in law and fact, is the first prong of a multiplicity analysis. Offenses with elements identical in law and fact establish a presumption that the legislature did not intend to permit multiple punishments. Offenses with elements that differ in law or fact establish a presumption that the legislature did intend to permit multiple punishments. State v. Patterson,
2010 WI 130,
329 Wis. 2d 599,
790 N.W.2d 909,
08-1968.
Regardless of the outcome of the "elements-only" test, the court proceeds to discern legislative intent. Operating under the presumption established under the first prong, the court then proceeds in a 4-factor analysis to determine whether the legislature intended to permit multiple punishments for the offenses in question, examining: 1) all relevant statutory language; 2) the legislative history and context of the statutes; 3) the nature of the proscribed conduct; and 4) the appropriateness of multiple punishments for the defendant's conduct. State v. Patterson,
2010 WI 130,
329 Wis. 2d 599,
790 N.W.2d 909,
08-1968.
In any challenge to a law on double jeopardy and ex post facto grounds, the threshold question is whether the ordinance is punitive, as both clauses apply only to punitive laws. Courts employ a two-part "intent-effects" test to answer whether a law applied retroactively is punitive and, therefore, an unconstitutional violation of the Double Jeopardy and Ex Post Facto Clauses. If the intent was to impose punishment, the law is considered punitive and the inquiry ends there. If the intent was to impose a civil and nonpunitive regulatory scheme, the court must determine whether the effects of the sanctions imposed by the law are so punitive as to render them criminal. City of South Milwaukee v. Kester,
2013 WI App 50,
347 Wis. 2d 334,
830 N.W.2d 710,
12-0724.
Under
Holesome v. State,
40 Wis. 2d 95, to satisfy due process and double jeopardy concerns, a charge must be pled so the defendant is able to plead and prepare a defense and so conviction or acquittal will bar another prosecution for the same offense. As stated in
Fawcett,
145 Wis. 2d 244, there are 7 factors that assist in determining whether the
Holesome test is satisfied. These 7 factors are tools to assist, not limitations upon, courts. A court may consider all of these factors, and others, if it deems them helpful in determining whether the requirements of
Holesome are satisfied. State v. Kempainen,
2014 WI App 53, ___ Wis. 2d ___,
849 N.W.2d 317,
13-1531.
A per se rule no longer exists prohibiting a court from increasing a defendant's sentence after the defendant has begun to serve the sentence. If a defendant has a legitimate expectation of finality in the sentence, then an increase in that sentence is prohibited by the double jeopardy clause. A significant factor in determining that the circuit court acted appropriately in resentencing the defendant is whether the justice system as a whole has not yet begun to act upon the circuit court's sentence. State v. Robinson,
2014 WI 35,
354 Wis. 2d 351,
847 N.W.2d 352,
11-2833.
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.
When 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.
When defense counsel's improper opening statement prompted the trial judge to grant a mistrial over defense objections, and when 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 the defendant has been acquitted, no matter how erroneously. 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).
When 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).
When 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 was not jeopardy barred. Morris v. Mathews,
475 U.S. 237 (1986).
When the defendant breached a plea agreement and a 2nd degree murder conviction was vacated as a result, a subsequent prosecution for 1st degree murder did 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 that, 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).
Generally, the double jeopardy clause prohibits reexamination of a court-decreed acquittal to the same extent it prohibits reexamination of an acquittal by jury verdict whether in a bench or jury trial. If, after a facially unqualified midtrial dismissal of one count, the trial proceeded to the defendant's introduction of evidence, the acquittal must be treated as final, unless the availability of reconsideration has been plainly established by pre-existing rule or case authority expressly applicable to midtrial rulings on the sufficiency of the evidence. Smith v. Massachusetts,
543 U.S. 462,
160 L. Ed. 2d 914,
125 S. Ct. 1129 (2004).
The double jeopardy clause precludes the government from relitigating any issue that was necessarily decided by a jury's acquittal in a prior trial. Consideration of hung counts has no place in the issue-preclusion analysis. To identify what a jury necessarily determined at trial, courts should scrutinize a jury's decisions, not its failures to decide. A jury's verdict of acquittal represents the community's collective judgment regarding all the evidence and arguments presented to it. Thus, if there was a critical issue of ultimate fact in all charges, a jury verdict that necessarily decided that issue in the defendant's favor protects him or her from prosecution for any charge for which that fact is an essential element. Yeager v. U.S.
557 U.S. 110,
129 S. Ct. 2360,
174 L. Ed. 2d 78 (2009).
When the jury in this case did not convict or acquit the defendant of any offense and was unable to return a verdict, the trial court properly declared a mistrial and discharged the jury. As a consequence, the Double Jeopardy Clause did not stand in the way of a second trial on the same offenses even though before the jury concluded deliberations it reported that it was unanimous against guilt on charges of capital murder and first-degree murder, was deadlocked on manslaughter, and had not voted on negligent homicide. Blueford v. Arkansas, 566 U.S. ___,
182 L. Ed. 2d 937,
132 S. Ct. 2044 (2012).
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 when the defendant was convicted of separate offenses under s. 161.41 [now s. 961.41] for simultaneous delivery of different controlled substances. Leonard v. Warden, Dodge Correctional Inst.
631 F. Supp. 1403 (1986).
The Double Jeopardy Clause bars retrial following a court-decreed acquittal, even if the acquittal is based upon an egregiously erroneous foundation. An acquittal encompasses any ruling that the prosecution's proof is insufficient to establish criminal liability for an offense. There is no meaningful constitutional distinction between a trial court's "misconstruction" of a statute and its erroneous addition of a statutory element. A midtrial acquittal in either of these circumstances is an acquittal for double jeopardy purposes. Evans v. Michigan, 568 U.S. ___,
133 S. Ct. 499,
184 L. Ed. 2d 335 (2013).
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 that 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 a number of victims were allowed to identify them out loud, 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 was 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 regarding 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 that does not require proof of criminal intent is constitutional. State v. Morales,
51 Wis. 2d 650,
187 N.W.2d 841.
When 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 state 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.
A defendant who, believing he was seriously wounded, began to tell what happened and was given
Miranda warnings waived his rights when he continued to talk. Waiver need not be express when the record shows the defendant 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 when 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 aftercare 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 when 2 of the 5, including 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.
Improper remarks by a prosecutor are not necessarily prejudicial when objections are promptly made and sustained and curative instructions and admonitions are given by the court. Hoppe v. State,
74 Wis. 2d 107,
246 N.W.2d 122 (1976).
Persons committed under ch. 975 are entitled to periodic review hearings that afford the same minimal requirements of due process as 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 imposing 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 that would raise a reasonable doubt when 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 when 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 when 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 an administrative body must provide when it 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. 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).
The accused has the right to answer some questions after a
Miranda warning and then to reassert the privilege and break off all questioning. Odell v. State,
90 Wis. 2d 149,
279 N.W.2d 706 (1979).
Trial courts do not have subject matter jurisdiction to convict defendants under unconstitutionally vague statutes. The right to raise the issue on appeal cannot be waived, regardless of a guilty plea. State ex rel. Skinkis v. Treffert,
90 Wis. 2d 528,
280 N.W.2d 316 (Ct. App. 1979).
A probationer's due process right to prompt revocation proceedings was not triggered when the probationer was detained as the result of unrelated criminal proceedings. State ex rel. Alvarez v. Lotter,
91 Wis. 2d 329,
283 N.W.2d 408 (Ct. App. 1979).
Before the "totality of circumstances" analysis is applied to confrontation identification, it must first be determined whether police deliberately contrived the confrontation between the witness and defendant. State v. Marshall,
92 Wis. 2d 101,
284 N.W.2d 592 (1979).
Due process requires that evidence reasonably support a finding of guilt beyond a reasonable doubt. State v. Stawicki,
93 Wis. 2d 63,
286 N.W.2d 612 (Ct. App. 1979).
An 8-month delay between the date of the alleged offense and the filing of a complaint did not violate the defendant's due process rights. State v. Davis,
95 Wis. 2d 55,
288 N.W.2d 870 (Ct. App. 1980).
The use of an unsworn prior inconsistent statement of a witness as substantive evidence did not deprive the defendant of due process. Vogel v. State,
96 Wis. 2d 372,
291 N.W.2d 838 (1980).
