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Enhancer — § 161.48(2) (1993-94), Drug Offender — Second or Subsequent Offense

State v. Frank Miles, 221 Wis. 2d 56, 584 N.W.2d 703 (Ct. App. 1998)
For Miles: Craig W. Albee

Issue/Holding: Prior drug conviction is not element of crime of second or subsequent drug offense, § 161.48(2) (1993-94), which elevates what would otherwise be misdemeanor to felony possession:

Miles fails to recognize the distinction between the two types of penalty enhancers. The first type of penalty enhancer concerns facts or circumstances related to the underlying crime which alter the substantive nature of the charged offense. …

In contrast, the repeater provisions form a second, entirely different group of penalty enhancers. This group includes the penalty enhancers for habitual criminality, under 939.62, Stats.; second and subsequent offense drunk driving under § 346.65(2), Stats.; and repeat drug offenses under § 161.48, Stats., 1993-94. These repeater penalty enhancers do not concern the factual circumstances surrounding the underlying crime, and do not change the substantive nature of the charged offense. Unlike the first group of penalty enhancers, repeat offender status merely increases the penalty for the charged offense without changing the substantive nature of the charged offense.

… Therefore, Wisconsin law does not require proof of Miles’s prior drug conviction at trial simply because his prior conviction converts his offense from a misdemeanor to a felony. Thus, we conclude that Wisconsin case law did not require the State to prove Miles’s prior drug conviction at trial beyond a reasonable doubt.

(Nor, the court goes on to hold, does the due process clause require such proof.)


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