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Dismissal of felon-in-possession charge doesn’t bar new charge under different provision of § 941.29

State v. Joshua Java Berry, 2016 WI App 40; case activity (including briefs)

Berry was found guilty at a bench trial of being a felon in possession of a firearm under § 941.29(2)(a) (2013-14). Before sentencing, Berry’s lawyer figured out that Berry’s prior conviction was for a misdemeanor, not a felony. The court vacated the felon-in-possession conviction and dismissed the charge with prejudice, and the state immediately recharged him under § 941.29(2)(b) (2013-14) because Berry had a prior delinquency adjudication. (¶¶2-6). Recharging him doesn’t violate the prohibition against double jeopardy.

The well-worn, two-part multiplicity test, first examines whether the offenses are identical in law or in fact, and then asks if the legislature intended to authorize multiple punishment. If the offenses are different in either law or fact, courts presume the legislature authorized multiple punishments. This presumption can be overcome, but only if the defendant shows a clear legislative intent to preclude cumulative punishments. State v. Eaglefeathers, 2009 WI App 2, ¶¶7, 15, 316 Wis. 2d 152, 762 N.W.2d 690. Berry’s double jeopardy argument fails under this test.

First, the two charges are obviously different in law, as the status elements aren’t the same: under § 941.29(2)(a) (2013-14), the element is a prior felony conviction; under § 941.29(2)(b) (2013-14), the element is a delinquency adjudication for an act that, if committed by an adult, would constitute a felony. (¶11). That means the legislature presumably authorized multiple punishment, and under the second step of the test Berry can overcome that presumption only by showing a clear legislative intent to preclude cumulative punishments based on: 1) statutory language; 2) legislative history and context; 3) nature of the conduct involved; and 4) appropriateness of multiple punishments. Eaglefeathers, 316 Wis. 2d 152, ¶15. Berry doesn’t make that showing:

¶13     Here, Berry merely concludes that a “common sense” reading of Wis. Stat. § 941.29 indicates that the legislature’s intent was to “ban a firearm’s possession if one, two or all of the listed statuses under s. 941.29(2) applied to that single instance of possession.” Berry cites no authority that supports this conclusion. Consequently, we conclude that Berry fails to meet his burden in showing that the legislature intended to preclude cumulative punishments. ….

Berry also argues the trial court’s dismissal with prejudice is the functional equivalent of a judgment of acquittal. Even if it was, however, that doesn’t mean a second charge based on a different statutory provision violates double jeopardy. (¶¶14-16).

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