State v. Harris, 90-2665-CR

Decision Date19 March 1991
Docket NumberNo. 90-2665-CR,90-2665-CR
Citation469 N.W.2d 207,161 Wis.2d 758
PartiesSTATE of Wisconsin, Plaintiff-Respondent, v. Randy HARRIS, Defendant-Appellant. d
CourtWisconsin Court of Appeals

Michael Yovovich, Asst. State Public Defender, and Henry Schultz, First Asst. State Public Defender, Madison, for defendant-appellant.

James E. Doyle, Atty. Gen., and Maureen McGlynn Flanagan, Asst. Atty. Gen., Madison, for plaintiff-respondent.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

LaROCQUE, Judge.

Randy Harris appeals a nonfinal order that denied his motion to dismiss based on a claim of double jeopardy. 1 Harris previously pled guilty to operating a motor vehicle after revocation (OAR, second offense, criminal), and he now stands charged with feloniously operating a motor vehicle without the owner's consent (OMVWOC), each of the two criminal offenses allegedly occurring at the same time and place. The circuit court ruled that the double jeopardy bar against successive prosecutions as announced in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), is not applicable to the facts presented. We affirm.

A criminal defendant is protected against being placed twice in jeopardy for the same offense under the fifth and fourteenth amendments to the United States Constitution and art. I, sec. 8, of the Wisconsin Constitution. The decisions of the United States Supreme Court govern both provisions. State v. Rabe, 96 Wis.2d 48, 61-62 n. 7, 291 N.W.2d 809, 815-16 n. 7 (1980). The double jeopardy clause embodies three protections: prosecution of the same offense after acquittal, prosecution of the same offense after conviction and multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). It is the second of these protections--prosecution after conviction for the same offense--that is at issue here. Whether an individual has been placed twice in jeopardy for the same offense is a question of law, and we owe no deference to the circuit court's determination. State v. Kramsvogel, 124 Wis.2d 101, 107, 369 N.W.2d 145, 147-48 (1985).

The long-standing test to determine whether the offenses are the same for double jeopardy purposes is set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932): "The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not." The Blockburger test has been applied in Wisconsin as the "additional element" or "additional fact" test. State v. Gordon, 111 Wis.2d 133, 138-40, 330 N.W.2d 564, 566-67 (1983).

Harris concedes that under the Blockburger "additional element" test, there would be no double jeopardy violation here. The elements to an OAR conviction as set forth in the pattern jury instruction are:

First, that the defendant operated a motor vehicle upon any highway in this state....

Second, that at the time the defendant operated the motor vehicle, his operating privilege was duly revoked.

Third, that the defendant knew or had cause to believe that his operating privilege had been revoked.

Wis J I--Criminal 2620A (footnotes omitted).

The elements of OMVWOC according to the pattern instruction are:

First, that the defendant intentionally operated a vehicle of another.

Second, that the operating of such vehicle by the defendant was done without the consent of the owner.

....

Third, that the defendant knew that such operating was without the owner's consent.

Wis J I--Criminal 1467.2 (footnotes omitted). As indicated, there are additional facts or elements to be proven for each of the foregoing offenses.

Harris concedes that the only fact common to both charges against him is that at a certain time and place he operated a certain vehicle and, therefore, that in order to prevail it must be under the additional protection provided by Corbin.

Corbin holds that the Blockburger test alone is insufficient to protect criminal defendants in cases involving successive prosecutions. The Court ruled that if the Blockburger test did not bar a successive prosecution, another step need be taken. The Court ruled as follows:

Thus, a subsequent prosecution must do more than merely survive the Blockburger test.... [T]he Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted. This is not an "actual evidence" or "same evidence" test. The critical inquiry is what conduct the State will prove, not the evidence the State will use to prove that conduct.

Corbin, 110 S.Ct. at 2093 (footnotes omitted).

The facts in Corbin were as follows: The defendant was involved in a fatal automobile accident and charged with failing to keep right of the highway median and driving while intoxicated. He pled guilty and was sentenced. Shortly thereafter, he was indicted on vehicular homicide and assault charges stemming from the same accident. The prosecution identified the acts that it would rely on to establish the new charges: "(1) operating a motor vehicle on a public highway in an intoxicated condition, (2) failing to keep right of the median, and (3) driving approximately 45 to 50 miles per hour in heavy rain...." Id. at 2089. The Corbin Court examined the acts upon which the state intended to rely and held:

By its own pleadings, the State has admitted that it will prove the entirety of the conduct for which...

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