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),
96-2830.
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),
97-0938.
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),
98-1681.
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,
00-1158.
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,
00-3176. See also State v. Cox,
2007 WI App 38,
300 Wis. 2d 236,
730 N.W.2d 452,
06-0419.
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,
01-2764.
939.66 Annotation
Sub. (2m) only applies to battery under s. 940.19 and not to battery by a prisoner under s. 940.20. Charging both was not multiplicitous and not a double jeopardy violation. State v. Davison,
2003 WI 89,
263 Wis. 2d 145,
666 N.W.2d 1,
01-0826.
939.66 Annotation
Section 948.40 (1) and (4) (a), contributing to the delinquency of a child with death as a consequence, is not a “type of criminal homicide" included under sub. (2). It provides a more serious punishment when “death is a consequence" of its violation. In contrast, the homicide statutes in ch. 940 target those who “cause the death" of another. State v. Patterson,
2010 WI 130,
329 Wis. 2d 599,
790 N.W.2d 909,
08-1968.
939.66 Annotation
The defendant's guilty plea to 2nd-degree sexual assault of a child was not knowing, intelligent, and voluntary because the defendant was incorrectly informed that he faced a potential sentence of 100 years if convicted of both 1st-degree and 2nd-degree sexual assault. Because 2nd-degree sexual assault is a lesser-included offense to 1st-degree sexual assault, the defendant could not have lawfully been convicted of both offenses. Thus, the defendant was not truly aware of the direct consequences of his plea and was entitled to withdraw it. State v. Douglas,
2018 WI App 12,
380 Wis. 2d 139,
908 N.W.2d 466,
16-1865.
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),
97-0938.
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,
256 Wis. 2d 547,
648 N.W.2d 34,
01-1966.
939.71 Annotation
Under this section, a subsequent prosecution is not prohibited if each provision requires proof of a fact for conviction that the other does not require, even if the same conduct was involved in the two prosecutions. In contrast, s. 961.45 provides that if a violation of ch. 961 is a violation of a federal law or the law of another state, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this state. The difference in the 2 statutes does not violate equal protection. State v. Swinson,
2003 WI App 45,
261 Wis. 2d 633,
660 N.W.2d 12,
02-0395.
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
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,
99-1768.
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)(am)
(am) A prosecution under s.
940.06 may be commenced within 15 years after the commission of the violation.
939.74(2)(ar)
(ar) A prosecution for a violation of s.
940.225 (2) or
(3) may be commenced within 10 years after the commission of the violation.
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 (2),
948.025 (1) (e),
948.03 (2) (a) or
(5) (a) 1.,
2., or
3.,
948.05,
948.051,
948.06,
948.07 (1),
(2),
(3), or
(4),
948.075,
948.08,
948.081,
948.085, or
948.095 shall be commenced before the victim reaches the age of 45 years or be barred, except as provided in sub.
(2d).
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)(am)
(am) For purposes of this subsection, crimes are related if they are committed against the same victim, are proximate in time, and are committed with the same intent, purpose, or opportunity so as to be part of the same course of conduct.
939.74(2d)(c)
(c) If, before the applicable time limitation under sub.
(1) or
(2) (am),
(ar),
(c), or
(cm) for commencing prosecution of a felony under ch.
940 or
948, other than a felony specified in sub.
(2) (a), expires, the state collects biological material that is evidence of the identity of the person who committed the felony, identifies a deoxyribonucleic acid profile from the biological material, and compares the deoxyribonucleic acid profile to deoxyribonucleic acid profiles of known persons, the state may commence prosecution of the person who is the source of the biological material for the felony or a crime that is related to the felony or both within 12 months after comparison of the deoxyribonucleic acid profile relating to the felony results in a probable identification of the person or within the applicable time under sub.
(1) or
(2), whichever is latest.
939.74(2d)(e)
(e) If, within 6 years after commission of a felony specified under sub.
(2) (a), the state collects biological material that is evidence of the identity of the person who committed the felony, identifies a deoxyribonucleic acid profile from the biological material, and compares the deoxyribonucleic acid profile to deoxyribonucleic acid profiles of known persons, the state may commence prosecution of the person who is the source of the biological material for a crime that is related to the felony within 12 months after comparison of the deoxyribonucleic acid profile relating to the felony results in a probable identification of the person or within the applicable time under sub.
(1) or
(2), whichever is latest.
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 History
History: 1981 c. 280;
1985 a. 275;
1987 a. 332,
380,
399,
403;
1989 a. 121;
1991 a. 269;
1993 a. 219,
227,
486;
1995 a. 456;
1997 a. 237;
2001 a. 16,
109;
2003 a. 196,
279,
326;
2005 a. 60,
276,
277;
2007 a. 80,
97,
116;
2009 a. 203;
2011 a. 271,
282;
2013 a. 165,
167;
2015 a. 121,
366;
2017 a. 128.
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),
93-3227.
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, 257 Wis. 2d. 124,
650 N.W.2d 850,
01-1406.
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, 257 Wis. 2d. 124,
650 N.W.2d 850,
01-1406.
939.74 Annotation
The common law “year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte,
2003 WI 42,
261 Wis. 2d 249,
661 N.W.2d 381,
01-3063.
939.74 Annotation
When sub. (2) (c) was created in 1987, it only applied prospectively. Subsequent amendments did not change this conclusion because they did not change the initial applicability of sub. (2) (c). Rather, the language in the subsequent amendments, which stated these amendments apply to offenses not yet barred, was clearly meant to apply to offenses that sub. (2) (c) had not already barred. State v. MacArthur,
2008 WI 72,
310 Wis. 2d 550,
750 N.W.2d 910,
06-1379.
939.74 Annotation
The circuit judge decides the tolling issue under sub. (3) in a pretrial proceeding wherein the state must prove that the defendant was not a public resident by a preponderance of the evidence. State v. MacArthur,
2008 WI 72,
310 Wis. 2d 550,
750 N.W.2d 910,
06-1379.
939.74 Annotation
The 36-year tolling of the statute of limitations under sub. (3) was not unconstitutional in this case. It did not violate the Privileges and Immunities, Due Process, or Equal Protection provisions of the U.S. Constitution. Sub. (3) does not burden a fundamental right, and it is rationally related to the legitimate governmental interests of detecting crimes and apprehending criminals. State v. McGuire,
2010 WI 91,
328 Wis. 2d 289;
786 N.W.2d 227,
07-2711.
939.74 Annotation
Sub. (2) (a) does not apply to a prosecution for attempted first-degree intentional homicide, which must instead be commenced within six years in accordance with sub. (1). State v. Larson,
2011 WI App 106,
336 Wis. 2d 419,
801 N.W.2d 343,
10-1666.
939.74 Annotation
Sub. (2) (b) does not impose a requirement on the aggrieved party to exercise reasonable diligence in discovering the theft or loss. The one-year extension period in sub. (2) (b) begins to run only when the aggrieved party actually discovers the loss, not when it should have discovered the loss. State v. Simmelink,
2014 WI App 102,
357 Wis. 2d 430,
855 N.W.2d 437,
13-2491.
939.74 Annotation
When an offense is a continuing offense, the statute of limitations does not begin to run until the last act is done that viewed by itself is a crime. Reading ss. 943.20 (1) (a) and 971.36 (3) (a) and (4) together, multiple acts of theft occurring over a period of time may, in certain circumstances, constitute one continuous offense that is not complete until the last act is completed. State v. Elverman,
2015 WI App 91,
366 Wis. 2d 169,
873 N.W.2d 528,
14-0354.
939.74 Annotation
The Perils of Plain Language: Statute of Limitations for Child Sexual Assault Defendants. Flynn. Wis. Law. March 2009.
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),
(cm), 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.
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)
(b) Sections
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),
(cm), and
(d),
940.10 (2),
940.195,
940.23 (1) (b) and
(2) (b),
940.24 (2) and
940.25 (1) (c) to
(e) do not apply to any of the following:
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),
(cm), 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 Annotation
Defendant's conviction under s. 940.09 (1) (c) for causing the death of an unborn child by intoxicated use of a motor vehicle was not unconstitutional. The court rejected the assertion that sub. (2) (b) 3. denies equal protection of the law because a pregnant woman can perform acts that cause the death of her unborn child without criminal liability while others are not similarly exempt for acts causing the death of the same unborn child. Because neither the defendant in this case nor anyone else is similarly situated to a pregnant woman who engages in conduct that causes the death of or harm to the unborn child within the pregnant woman, there is no equal protection violation. State v. Benson,
2012 WI App 101,
344 Wis. 2d 126,
822 N.W.2d 484,
11-1399.
