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Defenses – Claim Preclusion – Revocation Hearing Determination of Insufficient Proof of Element of New Offense No Bar to Prosecution of That Offense

State v. Samuel Terry, 2000 WI App 250, 239 Wis. 2d 519, 620 N.W.2d 217
For Terry: Richard D. Martin, SPD, Milwaukee Appellate


¶1 … Terry argues that, under the doctrine of issue preclusion, the State was precluded from criminally prosecuting him for possession of cocaine with intent to deliver because the Administrative Law Judge (ALJ), at his probation and parole revocation proceeding, determined that there was insufficient proof that Terry possessed cocaine, even under the relaxed preponderance of the evidence standard. We conclude that, while administrative agency decisions are given preclusive effect between the same parties in some instances, the doctrine of issue preclusion should not be applied to findings made in parole and probation revocation proceedings for three reasons: (1) the executive branch oversees revocation hearings through the Department of Corrections (DOC), and the district attorney is not a party. Moreover, DOC is generally disinclined to seek review of the ALJ’s decision in a parole and probation revocation proceeding; (2) parole and probation revocation proceedings in this state and criminal trials have critical differences in procedure and function which militate against applying issue preclusion to revocation proceedings; and (3) public policy considerations weigh against applying issue preclusion to revocation proceedings. Thus, the state was not precluded from subsequently prosecuting Terry for possessing cocaine with the intent to deliver and we affirm.


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