State v. Edward Leon Jackson, 2004 WI App 190, PFR filed 10/15/04
For Jackson: Meredith J. Ross, LAIP, UW Law School
¶4 The State, relying on State v. Kohler, 2001 WI App 253, 248 Wis. 2d 259, 635 N.W.2d 838, argues that because Jackson did not raise a multiplicity challenge at trial, he has waived it. We agree. However, waiver is a rule of judicial administration, and we have discretion to consider a waived issue. See State v. Erickson, 227 Wis. 2d 758, 766, 596 N.W.2d 749 (1999). Here, we exercise our discretion to address the substance of Jackson’s multiplicity challenge because it raises an ongoing legal issue that merits our attention.
“Kohler,” by the way, is misspelled: it’s Koller. However it’s spelled, that case is problematic for a number of reasons, not least because it leaves hanging the question of the State’s burden of proving distinct counts when the “multiplicity challenge [is] directed at proof, rather than pretrial allegations [.]” 2001 WI App 253, ¶38 (court doesn’t resolve whether burden is preponderance or beyond reasonable doubt). No matter: the argument in this case turns on statutory construction (whether, as a matter of law, § 939.31 supports two separate counts for the same transaction) and resolution of the issue, apparently along with proper spelling of Koller, awaits another day.