State v. Shawn A. Beasley, 2004 WI App 42, PFR filed 3/26/04 For Beasley: Robert Ruth Issue: Whether charges and convictions for burglary while armed (§ 943.10(2)(a)) and burglary while committing battery (§ 943.10(2)(d)) are multiplicitous. Holding: ¶5. We reject Beasley’s challenge for two reasons. First, the subsections of Wis. Stat. § 943.10(2) do not define penalty enhancers, they… Read more
12. Double Jeopardy, 5th Am.
State v. Clyde Baily Williams, 2004 WI App 56, federal habeas denied, Williams v. Bartow, 481 F.3d 492 (7th Cir 2007) For Williams: Margaret A. Maroney, SPD, Madison Appellate Issue/Holding: Issuing new charges for “a completely separate and distinct criminal episode” after the grant of appellate relief does not give rise to a presumption of vindictiveness: ¶45… Read more
State v. Clyde Baily Williams, 2004 WI App 56, federal habeas denied, Williams v. Bartow, 481 F.3d 492 (7th Cir 2007) For Williams: Margaret A. Maroney, SPD, Madison Appellate Issue/Holding: ¶22. We begin by addressing Williams’ double jeopardy claim. He submits that the trial court failed to exercise “sound discretion” in declaring a mistrial after his counsel… Read more
State v. Daniel Wyatt Henning, 2004 WI 89, reversing 2003 WI App 54, 261 Wis. 2d. 664, 660 N.W.2d 698 For Henning: Steven D. Phillips, SPD, Madison Appellate Issue: “¶41. Thus, the critical question is this: When a jury, in a multicount trial, both convicts and acquits, and an appellate court then overturns the conviction or convictions, do… Read more
Stephen Dye v. Frank, 355 F.3d 1102 (7th Cir 2004) For Dye: Christopher M. Bailey Issue/Holding: To determine whether a civil penalty is so punitive that it is should be characterized as criminal punishment, we must consider the factors listed by the Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963), and reaffirmed in Hudson… Read more
State v. Jimmie Davison, 2003 WI 89, reversing 2002 WI App 109, 235 Wis. 2d 715, 647 N.W.2d 390 For Davison: Keith A. Findley, UW Law School, Criminal Appeals Project Issue/Holding: ¶32. In sum, we conclude that the imposition of cumulative punishments from different statutes in a single prosecution for “the same offense” violates double jeopardy when… Read more
State v. Jimmie Davison, 2003 WI 89, reversing 2002 WI App 109, 235 Wis. 2d 715, 647 N.W.2d 390 For Davison: Keith A. Findley, UW Law School, Criminal Appeals Project Issue/Holding: The legislature did not intend to preclude cumulative punishments for both aggravated battery, § 940.10(6) and battery by prisoner, § 940.20(1), for the same conduct. ¶¶47-111… Read more
State v. Jesse H. Swinson, 2003 WI App 45, PFR filed 3/24/03 For Swinson: Pamela Pepper Issue/Holding: Separate theft by fraud charges, § 943.20(1)(d), involving a scheme to defraud the same victim over a period of time, were not multiplicitous. Though identical in law, they weren’t identical in fact, because each charge involved a distinct false representation… Read more
