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Enhancer — Pleading — Charge Made in Information Controls Different Repeater Allegation in Complaint

State v. John J. Thoms, 228 Wis. 2d 868, 599 N.W.2d 84 (Ct. App. 1999)
For Thoms: Steven L. Miller

Issue/Holding: The court reverses a persistent repeater sentence, § 939.62(2m). Thoms was originally charged in the complaint with the standard 10-year sentence enhancement, § 939.62(1)(c)&(2), based on a prior felony theft conviction. However, the information changed the enhancement allegation to persistent offender, § 939.62(2m) – life without parole. Because the information failed to allege any prior convictions, the persistent offender allegation is, as the state concedes, defective. The issue becomes whether, given this invalidity, Thoms remains subject to the original, 10-year enhancer as alleged in the complaint. The court says no:

The repeater charge in the information is an entirely separate and new charge that replaced the original repeater charge in the complaint. Thus, we hold that when the new and separate repeater charge in the information turns out to be invalid, as the State here concedes it is, the State is not entitled to look back and resurrect the charge it forsook in the complaint. The charge in the complaint no longer exists; the State abandoned it when it alleged a different repeater in the information.


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