939.646 History
History: 1995 a. 440;
2001 a. 109.
939.647
939.647
Increased penalty; violent felony committed against elder person. 939.647(1)(a)
(a) "Elder person" means any individual who is 62 years of age or older.
939.647(2)
(2) If a person commits a violent felony and the victim of the violent felony is an elder person, the maximum period of imprisonment is increased by 5 years.
939.647(3)
(3) Subsection (2) applies even if the person mistakenly believed that the victim had not attained the age of 62 years.
939.647(4)
(4) This section provides for the enhancement of the penalties applicable for the underlying crime. The court shall direct that the trier of fact find a special verdict as to all of the issues specified in
sub. (2).
939.647 History
History: 1997 a. 266;
2001 a. 109.
939.647 Annotation
When two penalty enhancers are applicable to the same crime, the length of the second penalty enhancer is based on the maximum term for the base crime as extended by the first penalty enhancer. State v. Quiroz, 2002 WI App 52,
251 Wis. 2d 245,
641 N.W.2d 715.
939.648
939.648
Penalty; terrorism. 939.648(1)(1) In this section, "governmental unit" means the United States; the state; any county, city, village or town; or any political subdivision, department, division, board or agency of the United States, the state or any county, city, village or town.
939.648(2)
(2) If a person does all of the following, the penalties for the underlying felony are increased as provided in
sub. (3):
939.648(2)(b)
(b) Commits the felony under any of the following circumstances:
939.648(2)(b)1.
1. The person causes bodily harm, great bodily harm or death to another.
939.648(2)(b)2.
2. The person causes damage to the property of another and the total property damaged is reduced in value by $25,000 or more. For the purposes of this subdivision, property is reduced in value by the amount that it would cost either to repair or replace it, whichever is less.
939.648(2)(b)3.
3. The person uses force or violence or the threat of force or violence.
939.648(2)(c)
(c) Commits the felony with the intent to influence the policy of a governmental unit or to punish a governmental unit for a prior policy decision.
939.648(3)
(3) The maximum fine prescribed by law for the felony may be increased by not more than $50,000 and the maximum period of imprisonment prescribed by law for the felony may be increased by not more than 10 years.
939.648(4)
(4) This section provides for the enhancement of the penalties applicable for the underlying felony. The court shall direct that the trier of fact find a special verdict as to all of the issues specified in
sub. (2).
939.648(5)(a)(a) In this subsection, "labor dispute" includes any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.
939.648(5)(b)
(b) This section does not apply to conduct arising out of or in connection with a labor dispute.
939.648 History
History: 1993 a. 98;
2001 a. 109.
939.648 Annotation
When two penalty enhancers are applicable to the same crime, the length of the second penalty enhancer is based on the maximum term for the base crime as extended by the first penalty enhancer. State v. Quiroz, 2002 WI App 52,
251 Wis. 2d 245,
641 N.W.2d 715.
RIGHTS OF THE PROSECUTION
939.65
939.65
Prosecution under more than one section permitted. Except as provided in
s. 948.025 (3), if an act forms the basis for a crime punishable under more than one statutory provision, prosecution may proceed under any or all such provisions.
939.65 History
History: 1993 a. 227.
939.65 Annotation
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 (1977).
939.66
939.66
Conviction of included crime permitted. Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:
939.66(1)
(1) A crime which does not require proof of any fact in addition to those which must be proved for the crime charged.
939.66(2)
(2) A crime which is a less serious type of criminal homicide than the one charged.
939.66(2m)
(2m) A crime which is a less serious or equally serious type of battery than the one charged.
939.66(2r)
(2r) A crime which is a less serious type of violation under
s. 943.23 than the one charged.
939.66(3)
(3) A crime which is the same as the crime charged except that it requires recklessness or negligence while the crime charged requires a criminal intent.
939.66(4)
(4) An attempt in violation of
s. 939.32 to commit the crime charged.
939.66(4m)
(4m) A crime of failure to timely pay child support under
s. 948.22 (3) when the crime charged is failure to pay child support for more than 120 days under
s. 948.22 (2).
939.66(5)
(5) The crime of attempted battery when the crime charged is sexual assault, sexual assault of a child, robbery, mayhem or aggravated battery or an attempt to commit any of them.
939.66(6c)
(6c) A crime that is a less serious type of violation under
s. 940.285 than the one charged.
939.66(6e)
(6e) A crime that is a less serious type of violation under
s. 940.295 than the one charged.
939.66 Annotation
To submit a lesser included offense, there must be some reasonable ground in the evidence for conviction on the lesser and acquittal on the greater. A lesser offense is permissible when the the evidence requires the jury to find a disputed factual element in the charged offense that is not required for the lesser. and the jury might find the disputed fact either way. State v. Melvin,
49 Wis. 2d 246,
181 N.W.2d 490 (1970).
939.66 Annotation
Attempted battery can only be an included crime as to the specific offenses listed. State v. Melvin,
49 Wis. 2d 246,
181 N.W.2d 490 (1970).
939.66 Annotation
A charge of possession of a pistol by a minor is not an included crime in a charge of attempted first degree murder because it includes the element of minority that the greater crime does not. State v. Melvin,
49 Wis. 2d 246,
181 N.W.2d 490 (1970).
939.66 Annotation
Disorderly conduct is not a lesser included offense of criminal damage to property. State v. Chacon,
50 Wis. 2d 73,
183 N.W.2d 84 (1971).
939.66 Annotation
While attempted aggravated battery is not an included crime of aggravated battery under sub. (1), it is under sub. (4). The reduced charge does not put the defendant in double jeopardy. Dunn v. State,
55 Wis. 2d 192,
197 N.W.2d 749 (1972).
939.66 Annotation
Under sub. (1), the emphasis is on the proof, not the pleading, and the "stricken word test" stated in Eastway v. State, 189 Wis. 56, is not incorporated in the statute. Martin v. State,
57 Wis. 2d 499,
204 N.W.2d 499 (1973).
939.66 Annotation
Section 947.015, bomb scares, is not an included crime in s. 941.30, recklessly endangering safety. State v. Van Ark,
62 Wis. 2d 155,
215 N.W.2d 41 (1974).
939.66 Annotation
When the evidence overwhelmingly showed that a shooting was intentional, failure to include negligent homicide under ss. 940.06 and 940.08 as a lesser included offenses was not error. Hayzes v. State,
64 Wis. 2d 189,
218 N.W.2d 717 (1974).
939.66 Annotation
In order to justify the submission of an instruction on a lesser degree of homicide than that with which the defendant is charged, there must be a reasonable basis in the evidence for acquittal on the greater charge and for conviction on the lesser charge. Harris v. State,
68 Wis. 2d 436,
228 N.W.2d 645 (1975).
939.66 Annotation
For one crime to be included in another, it must be utterly impossible to commit the greater crime without committing the lesser. Randolph v. State,
83 Wis. 2d 630,
266 N.W.2d 334 (1978).
939.66 Annotation
The test under sub. (1) concerns legal, statutorily defined elements of the crime, not peculiar facts of case. State v. Verhasselt,
83 Wis. 2d 647,
266 N.W.2d 342 (1978).
939.66 Annotation
The trial court erred in denying the defendant's request for the submission of a verdict of endangering safety by conduct regardless of life as a lesser included offense of attempted murder. Hawthorne v. State,
99 Wis. 2d 673,
299 N.W.2d 866 (1981).
939.66 Annotation
Without clear legislative intent to the contrary, multiple punishment may not be imposed for felony-murder and the underlying felony. State v. Gordon,
111 Wis. 2d 133,
330 N.W.2d 564 (1983).
939.66 Annotation
When a defendant charged with 2nd degree murder denied firing the fatal shot, a manslaughter instruction was properly denied. State v. Sarabia,
118 Wis. 2d 655,
348 N.W.2d 527 (1984).
939.66 Annotation
Under the "elements only" test, offenses that require proof of nonconsent are not lesser included offenses of offenses for which proof of nonconsent is not required. State v. Richards,
123 Wis. 2d 1,
365 N.W.2d 7 (1985).
939.66 Annotation
When police confiscated a large quantity of drugs from an empty home 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 a greater offense of possession with intent to deliver did not violate double jeopardy. State v. Stevens,
123 Wis. 2d 303,
367 N.W.2d 788 (1985).
939.66 Annotation
Reckless use of weapons under s. 941.20 (1) (a), 1983 stats., was not a lesser included offense of crime of endangering safety by conduct regardless of life while armed under ss. 939.63 (1) (a) 3. and 941.30, 1983 stats. State v. Carrington,
134 Wis. 2d 260,
397 N.W.2d 484 (1986).
939.66 Annotation
The court must instruct the jury on a properly requested lesser offense even though the statute of limitations bars the court from entering a conviction on the lesser offense. State v. Muentner,
138 Wis. 2d 374,
406 N.W.2d 415 (1987).
939.66 Annotation
The court of appeals may not direct the circuit court to enter a judgment of conviction for a lesser included offense when a jury verdict of guilty on a greater offense is reversed for insufficiency of evidence and the jury was not instructed on the lesser included offense. State v. Myers,
158 Wis. 2d 356,
461 N.W.2d 777 (1990).
939.66 Annotation
Convictions for both first-degree murder and burglary/battery are permissible. State v. Kuntz,
160 Wis. 2d 722,
467 N.W.2d 531 (1991).
939.66 Annotation
Evidence at trial may suggest to the state that an instruction on a lesser included offense is appropriate; it is unreasonable for a defendant to assume at the outset of trial that evidence may not affect the state's prosecuting position. State v. Fleming,
181 Wis. 2d 546,
510 N.W.2d 837 (Ct. App. 1993).
939.66 Annotation
This section does not bar multiple convictions when homicides are "equally serious." Two Class C felonies with the same maximum penalty were equally serious although one carried additional sanctions of driver license revocation and an additional penalty assessment that the other did not. State v. Lechner,
217 Wis. 2d 392,
576 N.W.2d 912 (1998).
939.66 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).
939.66 Annotation
There is no rule that when a more specific crime could have been charged, the defendant loses the right to a lesser-included instruction on a more general offense. That retail theft, which was not a lesser-included offense of armed robbery, could have been charged did not prevent the giving of an instruction on theft as a lesser included offense of armed robbery. State v. Jones,
228 Wis. 2d 593,
598 N.W.2d 259 (Ct. App. 1999).
939.66 Annotation
A lesser included offense must be both lesser and included. An offense with a heavier penalty cannot be regarded as a lesser offense than one with a lighter penalty. State v. Smits, 2001 WI App 45,
241 Wis. 2d 374,
626 N.W.2d 42.
939.66 Annotation
When a jury returned a verdict finding the defendant guilty of both a greater and a lesser included offense, although it had been instructed that it could only find one or the other, it was not error for the court to enter judgment on the greater offense after polling the jury to confirm the result. State v. Hughes, 2001 WI App 239,
248 Wis. 2d 133,
635 N.W.2d 661.
939.66 Annotation
Separate prosecutions for a carjacking that occurred on one day and operating the same car without the owner's consent on the next did not violate sub. (2r) or the constitutional protection against double jeopardy. State v. McKinnie, 2002 WI App 82,
252 Wis. 2d 172,
642 N.W.2d 617.
939.66 Annotation
Sub. (2m) does not only apply to s. 940.19 and degrees of battery but also applies to charges of aggravated battery under s. 940.19 and battery by a prisoner under s. 940.20. Charging both was multiplicitous and was a double jeopardy violation. State v. Davison, 2002 WI App 109, ___ Wis. 2d ___,
647 N.W.2d 390.
939.66 Annotation
Multiple Punishment in Wisconsin and the Wolske Decision: Is It Desirable to Permit Two Homicide Convictions for Causing a Single Death? 1990 WLR 553.
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
