If an act forms the basis for a crime punishable under more than one statutory provision of this state or under a statutory provision of this state and the laws of another jurisdiction, a conviction or acquittal on the merits under one provision bars a subsequent prosecution under the other provision unless each provision requires proof of a fact for conviction which the other does not require. Misdemeanor battery is an included crime of felony battery, but they are not the same offense. Acquittal on felony battery charges does not prevent subsequent prosecution for misdemeanor battery. State v. Vassos, 218 Wis. 2d 330, 579 N.W.2d 35 (1998), 97-0938. This section does not bar a subsequent prosecution for an offense arising from the same acts that could not have been charged at the time of the first prosecution and thus did not bar prosecuting a defendant for first-degree intentional homicide for the same act which led to battery convictions when the victim died after having been in a coma for four years. State v. McKee, 2002 WI App 148 , 256 Wis. 2d 547 , 648 N.W.2d 34, 01-1966. Under this section, a subsequent prosecution is not prohibited if each provision requires proof of a fact for conviction that the other does not require, even if the same conduct was involved in the two prosecutions. In contrast, s. 961.45 provides that if a violation of ch. 961 is a violation of a federal law or the law of another state, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this state. The difference in the two statutes does not violate equal protection. State v. Swinson, 2003 WI App 45 , 261 Wis. 2d 633 , 660 N.W.2d 12, 02-0395. This section substantially enacts the Blockburger, 284 U.S. 299 (1932), test for determining whether two offenses are the same offense for double jeopardy purposes. The test for determining whether there are two offenses or only one is whether each provision requires proof of a fact that the other does not. State v. Triebold, 2021 WI App 13, 396 Wis. 2d 176, 955 N.W.2d 415, 19-1209. This section did not prohibit the defendant’s convictions for failure to update his address information in both Minnesota and Wisconsin because the states’ respective sex offender registration statutes required proof of different facts. Criminal liability under either statute was predicated upon a failure to comply with the applicable registration requirements of the particular state—here, the failure to update address information to the relevant state agency. The defendant was not prosecuted in Wisconsin with failing to provide his new address to Minnesota authorities. Rather, the defendant was separately required under this state’s law to provide his updated address information to the Wisconsin Department of Corrections under s. 301.45 (4). State v. Triebold, 2021 WI App 13, 396 Wis. 2d 176, 955 N.W.2d 415, 19-1209.
‹ Prev All Wisconsin sections Next ›
Lexace provides legal information, not legal advice, and no attorney–client relationship is created. Statute text is provided for general information and may not reflect the most recent amendments; verify against the official state code.