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Attempt, § 939.32 — Conspiracy, § 939.31 — Multiplicity

State v. Melvin L. Moffett and Jerrell I. Denson, 2000 WI 130, 239 Wis. 2d 629, 619 N.W.2d 918, affirming State v. Moffett/Denson2000 WI App 67, 233 Wis. 2d 628, 608 N.W.2d 733
For Moffett: Patrick J. Stangl; for Denson: Joseph L. Sommers

Issue:

¶2 The parties present the following question to this court: May the State charge the defendants with two crimes, that is, with being parties to the crime of attempted first-degree intentional homicide and with the crime of conspiracy to commit first-degree intentional homicide when both crimes had only one and the same intended victim? Stating the question more generally, may an accused be charged with both being a party to an attempt to commit a crime and a conspiracy to commit the same crime?

Holding:

¶18  The defendants argue that Wis. Stat. § 939.72(2) is clear evidence of a legislative intent not to charge an accused with conspiracy to commit intentional homicide and with being a party to the crime of attempted first-degree intentional homicide.  We disagree with the defendants.  The clear language of Wis. Stat. § 939.72(2) refers to convictions, not charges. Nothing in the legislative history of Wis. Stat. § 939.72(2) suggests otherwise.[12]  We agree with the State that by limiting Wis. Stat. § 939.72(2) to convictions and by enacting Wis. Stat. § 939.65 allowing the State to bring multiple charges, the legislature has clearly expressed its intent to allow the State to proceed with both charges in the present case.

The court cautions, though, that the result is limited to this, a pleading, context:

¶12 We agree with the State. Nothing in Wis. Stat. § 939.72 bars the State from charging a defendant with the crime of conspiracy and with being a party to the crime that is the objective of the conspiracy. Quite simply, Wis. Stat. § 939.72 governs only convictions and does not bar the State from bringing and proceeding with charges set forth in multiple statutes. The issue under Wis. Stat. § 939.72(2) of whether defendants can be convicted of the crime of conspiracy to commit intentional homicide and of being parties to the crime of attempted first-degree intentional homicide is not before us at this juncture of the case.

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