¶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 the cumulative punishments are not intended by the legislature. See Whalen, 445 U.S. at 689; see also Rutledge v. United States, 517 U.S. 292, 297 (1996).
¶33. The “same offense” in this specific situation should be an offense identical in law and fact. The imposition of cumulative punishments not authorized by the legislature is a due process violation, not a double jeopardy violation, when the punishments do not spring from the same offense. “The same offense” is the sine qua non of double jeopardy.State v. Trawitzki, 2001 WI 77, ¶22, 244 Wis. 2d 523, 628 N.W.2d 801; State v. Grayson, 172 Wis. 2d 156, 159 n.3, 493 N.W.2d 23 (1992).
¶35. Some of our commentary on multiplicity must be re-evaluated in light of the last quarter-century of United States Supreme Court decisions…. In short, legislative intent to authorize cumulative punishments overrides a total identity of law and fact a laBlockburger.
¶36. This understanding is significant because this court has said that if offenses “are identical in law and fact, the charges are multiplicitous in violation of the double jeopardy clauses of the federal and state constitutions.” Anderson, 219 Wis. 2d at 747; see alsoTrawitzki, 244 Wis. 2d 523, ¶21; Derango, 236 Wis. 2d, ¶30. Although this statement is usually true, it is not always true, because the legislature may have intended to authorize cumulative punishments for the same offense.
¶37. In situations where the legislature intends to authorize cumulative punishments for the same offense, we may no longer say that the charges are “multiplicitous” or that they violate double jeopardy. Use of the term “multiplicitous” should be limited to situations in which the legislature has not authorized multiple charges and cumulative punishments.
¶38. In addition, in discussing multiplicity, a reference to “charges” must be employed carefully, because it is permissible to charge more than one count, even if the state may not punish a defendant on more than one count. Johnson, 467 U.S. at 500….
¶43. First, the court determines whether the charged offenses are identical in law and fact using the Blockburger test. Trawitzki, 244 Wis. 2d 523, ¶21; Derango 236 Wis. 2d 721, ¶29. If it is determined, using this test, that the offenses are identical in law and fact, the presumption is that the legislative body did not intend to punish the same offense under two different statutes. Whalen, 445 U.S. at 692. “Accordingly, where two statutory provisions proscribe the ‘same offense,’ they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent.” Id.(emphasis added).
¶44. Conversely, if under the Blockburger test the charged offenses are different in law or fact, a presumption arises that the legislature did intend to permit cumulative punishments. See Derango, 236 Wis. 2d 721, ¶30; Lechner, 217 Wis. 2d at 407; Sauceda, 168 Wis. 2d at 496; State v. Kuntz, 160 Wis. 2d 722, 755, 467 N.W.2d 531 (1991). “This presumption can only be rebutted by clear legislative intent to the contrary.” Derango, 236 Wis. 2d 721, ¶30; Lechner, 217 Wis. 2d at 407; Kuntz, 160 Wis. 2d at 755 (citing Missouri v. Hunter, 469 U.S. at 367; Albernaz, 450 U.S. at 340).
¶45. Second, even if the charged offenses are not identical in law and fact, the court must still determine whether the legislature intended multiple offenses to be brought as a single count. See Anderson, 219 Wis. 2d at 746. At this juncture, however, it is the defendant’s burden to show a clear legislative intent that cumulative punishments are not authorized.