State v. Autumn Marie Love Lopez & Amy J. Rodriguez, 2017AP913-CR & 2017AP914-CR, petition for review granted 4/9/19; case activity (including briefs)
Does either Wis. Stat. § 971.36 or inherent prosecutorial charging discretion allow a prosecutor to charge a single felony count of retail theft for multiple separate acts of theft, each involving less than $500 in merchandise, committed over a span of time?
As explained in our post on the published court of appeals decision, Lopez and Rodriguez were each charged with a single count being party to the crime of felony retail theft of more than $500 but less than $5,000. The single felony charge aggregated seven separate incidents occurring over two weeks at the same store. Each separate incident involved the theft of less than $500 of merchandise, and would’ve been a misdemeanor if charged by itself.
The court of appeals held the state was allowed to aggregate the incidents into a single felony count under the plain language of § 971.36(3)(a), which refers to aggregation of “theft” charges generally if they involve property belonging to the same owner and were committed “pursuant to a single intent and design or in execution of a single deceptive scheme.” Lopez and Rodriguez argue that the plain meaning of § 971.36’s reference to “theft” is to the crime titled “theft” under § 943.20. That “theft” means “theft” is supported by the fact that the various special categories of theft (e.g., retail, trade secrets, telecommunications service, farm-raised fish) have disparate elements and penalty structures, and mixing and matching incidents to aggregate seems inconsistent with the legislature’s intended penalty structures and desire to treat theft of certain kinds of property or services differently—particularly given these specialized categories were created long after the aggregation statute was, and yet weren’t explicitly cross-referenced in § 971.36. We’ll see if the supreme court takes a different view of the statute than the court of appeals did.
If it does, the state has a fall-back argument: its inherent discretionary authority to charge multiple acts as a single count. But that power is rather limited under current case law, as it applies when the acts are committed by the same person at substantially the same time during one continuous transaction. State v. Lomagro, 113 Wis. 2d 582, 587, 335 N.W.2d 583 (1983). The acts of the defendants in this case don’t fit that test, given they were committed over a two-week period. As to whether the state has some sort of broader discretionary charging authority, the existence of § 971.36 militates against that; still, if the supreme court reaches this issue they’re apt to look for some basis to give prosecutors the power to up the charging ante.