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Double Jeopardy – Multiplicity: Car-Jacking (§ 943.23(1g)) and Operating without Owners Consent (§ 943.23(3))

State v. Prentiss M. McKinnie, 2002 WI App 82, PFR filed 3/14/02
For McKinnie: Bryan J. Borman, SPD, Waukesha Trial

Issue: Whether separate charges, of carjacking and operating the same motor vehicle without owner’s consent are permissible where, after allegedly taking the car, the defendant continued to drive it the next day.

Holding: Though these offenses are the same in law, under § 939.66(2r), the facts as alleged are distinct and therefore support separate charges in this particular instance:

¶11. The principles described in Koller, having been applied in Harrell and several types of prosecutions in which multiple convictions were affirmed, are applicable to this case and require the holding of this court that, on the alleged facts before us, McKinnie was properly charged with separate crimes. On May 21, 2001, at approximately 9:04 p.m., in the north parking lot of Brookfield Square Mall, in Waukesha county, McKinnie allegedly armed with a dangerous weapon by threat of use of force decided to steal a car out from under its driver, Shirley Katt; on the next day, May 22, 2001, at approximately 9:30 a.m., in Milwaukee county, McKinnie, after sufficient time for reflection, again committed himself to driving a stolen car. Each act required “a new volitional departure in [McKinnie’s] course of conduct.” See Koller, 2001 WI App 253 at ¶31. As alleged, McKinnie’s offenses are separate and distinct and may be separately charged.


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