State v. Prokopios G. Vassos, 218 Wis.2d 330, 579 N.W.2d 35 (1998), on certification
For Vassos: Edmund C. Carns
Holding: Successive prosecution for misdemeanor battery (§ 940.19(1)), following acquittal of felony battery (§ 940.19(3)) arising from same incident, wasn’t barred by double jeopardy. Successive prosecutions are barred under § 939.71 when the subsequent charge is the “same” offense under the “elements-only” test. That test isn’t met here, misdemeanor battery containing elements not found in felony battery.
A separate bar is imposed under § 939.66, which prevents conviction of both a charged and an included crime. By virtue of sec. 939.66(2m), misdemeanor battery is “included” within felony battery. But the statute doesn’t apply to prosecution following acquittal, and does not make a less serious form of battery the “same” as a greater form, within the meaning of sec. 939.71. Because the offenses aren’t the same, double jeopardy doesn’t bar this successive prosecution.
Collateral estoppel is a separate component of double jeopardy. This requires examination of the prior proceeding, but since the record of the first trial was not part of the appellate record, the case is remanded for this determination.(Four justices, including the author of the lead opinion, concur, to express reservations about the protection afforded by exclusive reliance on the elements-only test. They implicitly request corrective legislation.)