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Enhancer — § 941.29(2m), 2nd-Offense Felon in Possession, Supports Repeater

State v. Calvin E. Gibson, 2000 WI App 207, 238 Wis.2d 547, 618 N.W.2d 248
For Gibson: Margaret A. Maroney, SPD, Madison Appellate


¶1. The question presented is whether the habitual criminality enhancer may be applied to a conviction for a second offense felony of firearm possession. Calvin E. Gibson, who was convicted of being a felon in possession of a firearm, second offense, with a repeater enhancer, argues that the application of both the criminal and repeater statutes is “double enhancement,” which this court prohibited in State v. Ray, 166 Wis. 2d 855, 873, 481 N.W.2d 288 (Ct. App. 1992). We hold that Wis. Stat. § 941.29(2m) (1997-98), the “second offense felon in possession” statute, creates its own separate offense. Because it is a separate crime and not a penalty enhancer, it will support the application of the habitual criminality statute. We affirm.

Ray says you can’t apply multiple repeater enhancers to the same substantive offense (at least where “the predicate offense is for the same conviction”). The question, then, is whether 2d-offense felon-in-possession is in the nature of a repeater for felon-in-possession (so as to preclude application of habitual criminality), or whether it’s a substantive offense in its own right. The wording of the section — “whoever violates … is guilty of a Class D felony” may seem to support the latter construction, but even so, a prior conviction raises a prototypical sentence-enhancement issue, as suggested by Apprendi v. N.J., 147 L.Ed.2d 443 (2000): “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Gibson, by saying that the traditional sort of enhancer (prior conviction) may be regarded as an element, not a mere enhancer, seems to invert Apprendi. The wording of the statute (“is guilty of”) might support the holding, but a contrary result on similar language was reached in State v. Morris, 108 Wis.2d 282, 322 N.W.2d 264 (1982), which isn’t discussed. The line between element and enhancer remains fuzzy, though Apprendi provides some guidance.


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