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Double Jeopardy – Remedy: Multiplicity

State v. Robert S. Robinson, 2002 WI 9, on certification
For Robertson: Leonard D. Kachinsky


¶2. The question of law raised on appeal is what is the appropriate remedy when an accused is convicted on the basis of a negotiated plea agreement and the counts later are determined to be multiplicitous, violating the accused’s state and federal constitutional guarantees against double jeopardy? ….

¶3. We conclude that when an accused successfully challenges a plea to and conviction on one count of a two-count information on grounds of double jeopardy and the information has been amended pursuant to a negotiated plea agreement by which the State made charging concessions, ordinarily the remedy is to reverse the convictions and sentences, vacate the plea agreement, and reinstate the original information so that the parties are restored to their positions prior to the negotiated plea agreement. We further conclude, however, that under some circumstances this remedy might not be appropriate. A court should, therefore, examine the remedies available and adopt one that fits the circumstances of the case after considering both the defendant’s and the State’s interests. Under the circumstances of the present case, we reverse the judgment of conviction and the order of the circuit court and remand the cause to the circuit court with directions to reinstate the original information against the defendant and to conduct further proceedings not inconsistent with this decision.

The parties agree that the plea bargained charges were identical in law and fact — i.e., multiplicitous, ¶5; they further agree that absent express waiver a guilty plea doesn’t waive a double jeopardy violation, ¶6 and id. nn. 5-6. Remedy for the conceded violation is the singular dispute. Robinson wants one of the counts vacated, with the other (and its sentence) left untouched. In the course of rejecting that argument — one of the points being that otherwise the sentence might be increased after successful litigation — the court cautions: “the cases also recognize that when one conviction and sentence is vacated on double jeopardy grounds, the validity of the sentence on the other conviction is implicated, resentencing on the valid conviction is permissible, and the circuit court may increase the sentence on the valid conviction. Thus, although the defendant correctly reminds us that he ought not to be punished for exercising his constitutional rights, the cases do not proscribe every increase in a sentence when a defendant challenges his conviction on constitutional grounds.” ¶38. The court agrees with the state that a challenge of this nature repudiates the plea bargain, and the parties should be restored to the pre-plea position, based on contract principles. ¶47-51. An exception might be made where “the State’s ability to prosecute or the defendant’s ability to defend against the counts set forth in the original information” would be “adversely affected.” ¶49.

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