State v. Jason J. Trawitzki, 2001 WI 77, 244 Wis. 2d 523, 628 N.W.2d 801, affirming State v. Trawitzki, 2000 WI App 205, 238 Wis. 2d 795, 618 N.W.2d 884
For Trawitzki: Donald T. Lang, SPD, Madison Appellate
Issue: Whether multiple charges of theft of firearms taken at the same time, and multiple charges of concealing those firearms, violated double jeopardy.
Holding: Multiplicity is a two-part test: determine whether the offenses are identical in both law and fact; if not, whether the legislature intended multiple prosecutions. ¶21. The specific identity of each firearm stolen (and, as well, concealed) is distinct and must be proven separately from any other stolen (or concealed) firearm; therefore theft of (or concealing stolen) firearms taken at the same time aren’t identical in fact, and may be proven separately.
¶28 We apply the first part of the multiplicity test and conclude that the firearm theft charges and the concealing stolen firearms charges against Trawitzki are not identical in law and in fact. As both parties concede, the charges are identical in law because they arise under the same criminal statute, Wis. Stat. § 943.20(1)(a). However, the charges against Trawitzki are not identical in fact. The test for whether charges are not identical in fact is whether “the facts are either separated in time or of a significantly different nature.” Anderson, 219 Wis. 2d at 749. To be of a significantly different nature, each charged offense must require proof of an additional fact that the other charges do not. Id. at 750. In this case, each theft charge and each concealment charge against Trawitzki does require proof of an additional fact that the other charges do not, namely, the identity of the individual firearm. Because each charge alleges that Trawitzki either took or concealed a specific firearm, the State must prove the identity of the specific firearm. For example, the first firearm theft charge alleges that Trawitzki took and carried away a Smith & Wesson model 28 N-frame 6″ revolver with satin stainless steel finish and black rubber grips. The State must prove, therefore, that Trawitzki did exactly what is alleged. The second firearm theft charge alleges that Trawitzki took and carried away a Star PD 45 semi-auto 4″ blue/alloy frame pistol. Consequently, the State must prove that.
The second part of the multiplicity test employs a four-factor presumption of legislative intent to support separate charging. That presumption isn’t overcome in this context. ¶29.