939.66 Note
NOTE: See also notes to Art. I, sec. 8, Double Jeopardy.
RIGHTS OF THE ACCUSED
939.70
939.70
Presumption of innocence and burden of proof. No provision of
chs. 939 to
951 shall be construed as changing the existing law with respect to presumption of innocence or burden of proof.
939.70 History
History: 1979 c. 89;
1987 a. 332 s.
64.
939.71
939.71
Limitation on the number of convictions. If an act forms the basis for a crime punishable under more than one statutory provision of this state or under a statutory provision of this state and the laws of another jurisdiction, a conviction or acquittal on the merits under one provision bars a subsequent prosecution under the other provision unless each provision requires proof of a fact for conviction which the other does not require.
939.71 Annotation
Misdemeanor battery is an included crime of felony battery, but they are not the same offense. Acquittal on felony battery charges does not prevent subsequent prosecution for misdemeanor battery. State v. Vassos,
218 Wis. 2d 330,
579 N.W.2d 35 (1998).
939.71 Annotation
This section does not bar a subsequent prosecution for an offense arising from the same acts that could not have been charged at the time of the first prosecution and thus did not bar prosecuting a defendant for 1st-degree intentional homicide for the same act which led to battery convictions when the victim died after having been in a coma for 4 years. State v. McKee, 2002 WI App 148, ___ Wis. 2d ___,
648 N.W.2d 34.
939.72
939.72
No conviction of both inchoate and completed crime. A person shall not be convicted under both:
939.72(1)
(1) Section 939.30 for solicitation and
s. 939.05 as a party to a crime which is the objective of the solicitation; or
Effective date note
NOTE: Sub. (1) is shown as amended eff. 2-1-03 by
2001 Wis. Act 109. Prior to 2-1-03 it reads:
Effective date text
(1) Section 939.30, 948.35 or 948.36 for solicitation and s. 939.05 as a party to a crime which is the objective of the solicitation; or
939.72(2)
(2) Section 939.31 for conspiracy and
s. 939.05 as a party to a crime which is the objective of the conspiracy; or
939.72(3)
(3) Section 939.32 for attempt and the section defining the completed crime.
939.72 History
History: 1991 a. 153;
2001 a. 109.
939.72 Annotation
Sub. (3) does not bar convicting the defendant who shot at one person but killed another of both murder and attempted murder. Austin v. State,
86 Wis. 2d 213,
271 N.W.2d 668 (1978).
939.72 Annotation
Sub. (3) does not bar convictions for possession of burglarious tools and burglary arising out of a single transaction. Dumas v. State,
90 Wis. 2d 518,
280 N.W.2d 310 (Ct. App. 1979).
939.72 Annotation
This section refers to convictions, not charges. The state may properly charge a defendant with both being a party to an attempt to commit a crime and conspiracy to commit the crime. State v. Moffett, 2000 WI 130,
239 Wis. 2d 629,
619 N.W.2d 918.
939.73
939.73
Criminal penalty permitted only on conviction. A penalty for the commission of a crime may be imposed only after the actor has been duly convicted in a court of competent jurisdiction.
939.74
939.74
Time limitations on prosecutions. 939.74(1)
(1) Except as provided in
subs. (2) and
(2d) and
s. 946.88 (1), prosecution for a felony must be commenced within 6 years and prosecution for a misdemeanor or for adultery within 3 years after the commission thereof. Within the meaning of this section, a prosecution has commenced when a warrant or summons is issued, an indictment is found, or an information is filed.
939.74(2)
(2) Notwithstanding that the time limitation under
sub. (1) has expired:
939.74(2)(b)
(b) A prosecution for theft against one who obtained possession of the property lawfully and subsequently misappropriated it may be commenced within one year after discovery of the loss by the aggrieved party, but in no case shall this provision extend the time limitation in
sub. (1) by more than 5 years.
939.74(2)(c)
(c) A prosecution for violation of
s. 948.02,
948.025,
948.03 (2) (a),
948.05,
948.06,
948.07 (1),
(2),
(3), or
(4),
948.075,
948.08, or
948.095 shall be commenced before the victim reaches the age of 31 years or be barred, except as provided in
sub. (2d) (c).
939.74(2d)(a)(a) In this subsection, "deoxyribonucleic acid profile" means an individual's patterned chemical structure of genetic information identified by analyzing biological material that contains the individual's deoxyribonucleic acid.
939.74(2d)(b)
(b) If before the time limitation under
sub. (1) expired, the state collected biological material that is evidence of the identity of the person who committed a violation of
s. 940.225 (1) or
(2), the state identified a deoxyribonucleic acid profile from the biological material, and comparisons of that deoxyribonucleic acid profile to deoxyribonucleic acid profiles of known persons did not result in a probable identification of the person who is the source of the biological material, the state may commence prosecution of the person who is the source of the biological material for violation of
s. 940.225 (1) or
(2) within 12 months after comparison of the deoxyribonucleic acid profile relating to the violation results in a probable identification of the person.
939.74(2d)(c)
(c) If before the time limitation under
sub. (2) (c) expired, the state collected biological material that is evidence of the identity of the person who committed a violation of
s. 948.02 (1) or
(2) or
948.025, the state identified a deoxyribonucleic acid profile from the biological material, and comparisons of that deoxyribonucleic acid profile to deoxyribonucleic acid profiles of known persons did not result in a probable identification of the person who is the source of the biological material, the state may commence prosecution of the person who is the source of the biological material for violation of
s. 948.02 (1) or
(2) or
948.025 within 12 months after comparison of the deoxyribonucleic acid profile relating to the violation results in a probable identification of the person.
939.74(3)
(3) In computing the time limited by this section, the time during which the actor was not publicly a resident within this state or during which a prosecution against the actor for the same act was pending shall not be included. A prosecution is pending when a warrant or a summons has been issued, an indictment has been found, or an information has been filed.
939.74(4)
(4) In computing the time limited by this section, the time during which an alleged victim under
s. 940.22 (2) is unable to seek the issuance of a complaint under
s. 968.02 due to the effects of the sexual contact or due to any threats, instructions or statements from the therapist shall not be included.
939.74 Annotation
While courts have no duty to secure informed waivers of possible statutory defenses when accepting a guilty plea, under the unique facts of the case, the defendant was entitled to withdraw a guilty plea to a charge barred by the statute of limitations. State v. Pohlhammer,
82 Wis. 2d 1,
260 N.W.2d 678 (1978).
939.74 Annotation
Sub. (3) tolls the running of statutes of limitation during the period in which a defendant is not a state resident and violates neither the privileges and immunities clause nor the equal protection clause of the U.S. constitution. State v. Sher,
149 Wis. 2d 1,
437 N.W.2d 878 (1989).
939.74 Annotation
A person is not "publicly a resident within this state" under sub. (3) when living outside the state but retaining state residence for voting and tax purposes. State v. Whitman,
160 Wis. 2d 260,
466 N.W.2d 193 (Ct. App. 1990).
939.74 Annotation
An arrest warrant is issued for purposes of sub. (1) when it is signed by a judge with the intent that it be executed and leaves the possession of the judge. That the warrant is never executed is irrelevant. State v. Mueller,
201 Wis. 2d 121,
549 N.W.2d 455 (Ct. App. 1996).
939.74 Annotation
The filing of a complaint, along with an order directed to a prison warden to produce the defendant, but no summons or warrant before the expiration of the statute of limitations was not sufficient to prevent the statute from running. The complaint and order to produce were not the equivalent of a summons or warrant. State v. Jennings, 2002 WI App 16,
250 Wis. 2d 138,
640 N.W.2d 165.
939.74 Annotation
The statute of limitations for a continuing offense does not run until the last act is done, which, viewed alone, is a crime. Otherwise, a prosecution for a felony offense must be commenced within 6 years. State v. Miller, 2002 WI App 197, ___Wis. 2d. ___,
650 N.W.2d 850.
939.74 Annotation
When the jury found the defendant guilty of having sexual contact with the minor victim during the period outside the statute of limitations, but also found that the victim was unable to seek the issuance of a complaint due to the effects of the sexual contact or due to statements or instructions by the defendant, the statute of limitations was tolled under sub. (4). The jury was required to agree upon a specific act committed within a specific time period but was not required to determine exactly when the agreed-upon offense was committed. When the date of the crime is not a material element of the offense charged, it need not be precisely alleged or determined. State v. Miller, 2002 WI App 197, ___Wis. 2d. ___,
650 N.W.2d 850.
939.74 Annotation
A plaintiff's allegations of the defendant district attorney's bad faith presented no impediment to application of the general principle prohibiting federal court interference with pending state prosecutions where the only factual assertion in support of the claim was the district attorney's delay in completing the prosecution, and there were no facts alleged which could support any conclusion other than that the district attorney had acted consistently with state statutes and constitution. Smith v. McCann,
381 F. Supp. 1027 (1974).
939.75
939.75
Death or harm to an unborn child. 939.75(1)
(1) In this section and
ss. 939.24 (1),
939.25 (1),
940.01 (1) (b),
940.02 (1m),
940.05 (2g) and
(2h),
940.06 (2),
940.08 (2),
940.09 (1) (c) to
(e) and
(1g) (c) and
(d),
940.10 (2),
940.195,
940.23 (1) (b) and
(2) (b),
940.24 (2) and
940.25 (1) (c) to
(e), "unborn child" means any individual of the human species from fertilization until birth that is gestating inside a woman.
Effective date note
NOTE: Sub. (1) is shown as amended eff. 2-1-03 by
2001 Wis. Act 109. Prior to 2-1-03 it reads:
Effective date text
(1) In this section and ss. 939.24 (1), 939.25 (1), 940.01 (1) (b), 940.02 (1m), 940.05 (2g) and (2h), 940.06 (2), 940.08 (2), 940.09 (1) (c) to (e), (1b) and (1g) (c) and (d), 940.10 (2), 940.195, 940.23 (1) (b) and (2) (b), 940.24 (2) and 940.25 (1) (c) to (e) and (1b), "unborn child" means any individual of the human species from fertilization until birth that is gestating inside a woman.
939.75(2)(a)(a) In this subsection, "induced abortion" means the use of any instrument, medicine, drug or other substance or device in a medical procedure with the intent to terminate the pregnancy of a woman and with an intent other than to increase the probability of a live birth, to preserve the life or health of the infant after live birth or to remove a dead fetus.
939.75(2)(b)2.
2. An act that is committed in accordance with the usual and customary standards of medical practice during diagnostic testing or therapeutic treatment performed by, or under the supervision of, a physician licensed under
ch. 448.
939.75(2)(b)2h.
2h. An act by any health care provider, as defined in
s. 155.01 (7), that is in accordance with a pregnant woman's power of attorney for health care instrument under
ch. 155 or in accordance with a decision of a health care agent who is acting under a pregnant woman's power of attorney for health care instrument under
ch. 155.
939.75(2)(b)3.
3. An act by a woman who is pregnant with an unborn child that results in the death of or great bodily harm, substantial bodily harm or bodily harm to that unborn child.
939.75(2)(b)4.
4. The prescription, dispensation or administration by any person lawfully authorized to do so and the use by a woman of any medicine, drug or device that is used as a method of birth control or is intended to prevent pregnancy.
939.75(3)
(3) When the existence of an exception under
sub. (2) has been placed in issue by the trial evidence, the state must prove beyond a reasonable doubt that the facts constituting the exception do not exist in order to sustain a finding of guilt under
s. 940.01 (1) (b),
940.02 (1m),
940.05 (2g),
940.06 (2),
940.08 (2),
940.09 (1) (c) to
(e) or
(1g) (c) or
(d),
940.10 (2),
940.195,
940.23 (1) (b) or
(2) (b),
940.24 (2) or
940.25 (1) (c) to
(e).
939.75 History
History: 1997 a. 295;
2001 a. 109.
