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Double Jeopardy – Multiplicity: Bail Jumping – Single Bond, Same Condition but Different Cases

State v. Dana Eaglefeathers, 2009 WI App 2, PFR filed 1/9/09
For Eaglefeathers: Patricia A. Fitzgerald

Issue/Holding: Violation of the same condition in a single bond applicable to two different cases (failure to appear at both preliminary hearings scheduled for the same time and court) supports multiple bail jumping charges:

¶8        The parties do not dispute that the offenses charged against Eaglefeathers are identical in law; he was charged with two violations of the same statute, Wis. Stat. § 946.49. Rather, the dispute is over whether the offenses are identical in fact.  Offenses are different in fact if the offenses “are either separated in time or are significantly different in nature.” State v. Stevens, 123 Wis.  2d 303, 322, 367 N.W.2d 788, cert. denied, 474 U.S. 852 (1985). The test for whether offenses are significantly different in nature “is whether each count requires proof of an additional fact that the other count does not. The offenses are significantly different in nature if each requires a new volitional departure in the defendant’s course of conduct.” Anderson, 219 Wis.  2d 739, ¶20 (citations omitted).…

¶11      An offense is different in nature from another offense when it requires proof of a fact that the other offense does not.  Anderson, 219 Wis. 2d 739, ¶20. As the circuit court explained, each count of bail jumping associated with each case would require separate proof by the State. The State would be required to prove that the court notified Eaglefeathers of the preliminary hearing in each case, and that Eaglefeathers failed to appear in each case. Proof of notification and failure to appear in one case would not prove notification and failure to appear in the other. As a result, the two charges were significantly different in nature and therefore were different in fact for purposes of double jeopardy analysis.

The court goes on to say that the resulting presumption of legislative intent to impose cumulative punishments in this context isn’t rebutted, ¶¶15-18. But: “separate” proof? The conditions were contained in a single bond compelling an appearance at prelims “scheduled for the same time” (¶1). In other words, the cases were consolidated as a functional if not formal matter; and, even if that overstates the matter, how would it have been possible for Eaglefeathers to appear at the one but not the other? In the somewhat stilted language of the test: “each requires a new volitional departure in the defendant’s course of conduct”; how is it remotely possible to intentionally fail to appear at one hearing but not the other, when they’re both scheduled for the same time and place? The court doesn’t quite get around to saying, but instead merely asserts: “Proof of notification and failure to appear in one case would not prove notification and failure to appear in the other.” Sorry, but that’s just not a self-evident proposition. At least it wasn’t before, but perhaps it is now, but only because of judicial fiat suspending elementary laws of physics – in this instance, presuming that someone can be in two different places at the same time.

 

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