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Doubke Jeopardy – Multiplicity: Bail Jumping – Single Bond, Different Conditions

State v. Daniel Anderson, 219 Wis.2d 739, 580 N.W.2d 329 (1998), reversing State v. Anderson, 214 Wis. 2d 126, 570 N.W.2d 872 (Ct. App. 1997)
For Anderson: Jack E. Schairer, SPD, Madison Appellate

Issue: Whether violating different conditions of a single bond supports multiple bail jumping counts.

Holding: Anderson, released on an otherwise unrelated case, was ordered as a condition of bail not to drink or have contact with the victim. His violation of both conditions, albeit at the same time and place, supports two convictions and sentences.

The test for multiplicity has two parts, identity in law and fact; and legislative intent. These bail jumping offenses are the same in law, but are “significantly different” in fact, because drinking and contact each “requires a different and new volitional act on the defendant’s part.” (Note: these are plea-based convictions, yet the court does not discuss waiver. The court has previously held that double jeopardy claims are not subject to waiver. State v. Morris, 108 Wis. 2d 282, 284 n. 2, 322 N.W.2d 264 (1982) See also State v. Jimmie Davison, 2002 WI App 109 ¶¶12-13, reversed on other grounds2003 WI 89.) The court’s analysis of the facts relies on the complaint, information, and statements at a pretrial hearing. Different-fact counts may still be multiplicitous if there is “clear indication” the legislature intended to allow only a single prosecution. The court’s review of the legislative history leads it to conclude otherwise. The dissent (Justices Geske, joined by Justice Bradley and Chief Justice Abrahamson) takes issue with the last conclusion. “The appropriate unit of prosecution,” they would hold, “is the bond, not the individual conditions.”


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