State v. Jenich, 79-272-CR

• Decision Date: 08 April 1980
• Docket Number: No. 79-272-CR,79-272-CR
• Citation: 288 N.W.2d 114,94 Wis.2d 74
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. George JENICH, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 114

288 N.W.2d 114

94 Wis.2d 74

STATE of Wisconsin, Plaintiff-Respondent, v. George JENICH, Defendant-Appellant-Petitioner.

No. 79-272-CR.

Supreme Court of Wisconsin.

Argued Dec. 5, 1979.

Decided Feb. 7, 1980.

Reconsideration Granted April 8, 1980.

Daniel R. Heiden, Milwaukee, argued, for defendant-appellant-petitioner; Robert G. LeBell and Carter, Finn & LeBell, S.C., Milwaukee, on brief.

Sally L. Wellman, Asst. Atty. Gen., argued for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.

ABRAHAMSON, Justice.

On February 26, 1979, George Jenich, the defendant, filed a notice of appeal to the court of appeals from an order of the circuit court denying his motion to dismiss the criminal complaint on the ground that the second trial would place him twice in jeopardy contrary to the federal and Wisconsin constitutions. ¹ Upon motion of the State, the court of appeals dismissed defendant's appeal, concluding that the order appealed from was not an order appealable as of right. The court of appeals refused, on its own motion, to grant defendant additional time in which to seek leave to appeal. The court of appeals, in effect, treated the defendant's notice of appeal as a request for leave to appeal and then refused to grant leave to appeal. The court of appeals concluded upon review of the record and defendant's brief that although former jeopardy provisions are intended to prohibit a second trial, under the appropriate circumstances, and not merely to serve as a basis for reversal of a subsequent conviction, "the issue raised has such doubtful merit that it is unlikely that subjecting the defendant to trial at this time would cause him substantial or irreparable injury."

We granted defendant's petition to review the decision of the court of appeals that the order of the circuit court was not a final order appealable as of right. A decision by the court of appeals that an order is not appealable as a matter of right is a decision reviewable by this court upon a petition to appeal. ²

Defendant asserts on appeal that the court of appeals erred in dismissing his appeal and that the circuit court erred in not dismissing the charges because of double jeopardy.

We conclude that the court of appeals erred in not hearing the appeal, and we further conclude that the order of the circuit court should be affirmed.

I.

We turn first to the question whether a pretrial order denying a motion to dismiss based on double jeopardy is appealable as of right to the court of appeals.

Sec. 808.03, Stats., provides for appeals to the court of appeals as of right and by permission. Sec. 808.03 governs appeals as of right in civil and in criminal cases: ³

"(1) APPEALS AS OF RIGHT. A final judgment or a final order of a circuit court or county court may be appealed as a matter of right to the court of appeals unless otherwise expressly provided by law. A final judgment or final order is a judgment or order entered in accordance with s. 806.06(1)(b) or 807.11(2) which disposes of the entire matter in litigation as to one or more of the parties, whether rendered in an action or special proceeding.

"(2) APPEALS BY PERMISSION. A judgment or order not appealable as a matter of right under sub. (1) may be appealed to the court of appeals in advance of a final judgment or order upon leave granted by the court if it determines that an appeal will:

"(a) Materially advance the termination of the litigation or clarify further proceedings in the litigation;

"(b) Protect the petitioner from substantial or irreparable injury; or

"(c) Clarify an issue of general importance in the administration of justice."

The question of what orders and judgments are final for purposes of appellate review is a recurring question of statutory interpretation. ⁴ The final judgment final order rule is designed to prohibit piecemeal disposal of litigation and thus plays an important role in the movement of cases through the judicial system. Historically courts have, however, placed qualifications on the rule where the need for immediate review outweighs the purposes of the rule.

The defendant urges us to adopt the reasoning of the United States Supreme Court in Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), and to treat this order as a final order. In Abney the United States Supreme Court held that pretrial orders rejecting claims of former jeopardy are "final decisions" under the federal statutes ⁵ and are therefore immediately appealable as of right because the order satisfied three criteria.

First, the order denying the double jeopardy claim finally and completely determines a claim of right; the trial court has rejected the double jeopardy claim. Second, the double jeopardy claim is separable from, collateral to and independent of the principal issue at trial, namely the guilt of the accused of the crime charged.

Third, the double jeopardy rights asserted are too important to be denied review. The United States Supreme Court recognized that if the accused were forced to face a second trial, without review of his double jeopardy claim, the accused would lose the full protection of constitutional rights even if there were an acquittal at the second trial or the conviction at the second trial were reversed on double jeopardy grounds. The Court said that "if a criminal defendant is to avoid Exposure to double jeopardy and thereby enjoy the full protection of the Clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs."

We recognize, as did the United States Supreme Court in Abney, that interlocutory or piecemeal appeals are undesirable, especially in criminal prosecutions. The delays caused by piecemeal appeals are "inimical to the effective and fair administration of the criminal law." DiBella v. United States, 369 U.S. 121, 126, 82 S.Ct. 654, 658, 7 L.Ed.2d 614 (1962). At the same time we recognize that the double jeopardy provisions protect an accused not only against being twice subjected to punishment but also against being twice put to trial for the same offense. In Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957), Mr. Justice Black described the purpose of the clause as follows:

"The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." (Quoted with approval, Abney v. United States, 431 U.S. at 661-662, 97 S.Ct. at 2041, 52 L.Ed.2d at 661-662.)

In Berry v. State, 90 Wis.2d 316, 324, 280 N.W.2d 204, 208 (1979), this court similarly viewed the double jeopardy protection:

"The key to invoking double jeopardy protection is not simply whether a defendant, as in the present case, can point to a prior verdict or judgment of acquittal, but whether the defendant might be subjected to multiple prosecutions."

Three members of the court are persuaded by the reasoning of the Abney case and hold that a pretrial order denying a motion to dismiss based on double jeopardy is a final order and the defendant may, before the new trial is held, appeal that order "as a matter of right to the court of appeals" pursuant to sec. 808.03(1), Stats. ⁶ To prevent defendants from engaging in dilatory appeal tactics, the court of appeals should establish procedures requiring the parties and the court to give the appeal expedited treatment. ⁷

Justice Callow and the author of this opinion would reach a result similar to the one reached by our colleagues, but by a different route. We would hold that this appeal does not come within sec. 808.03(1) but falls within sec. 808.03(2), Stats., an appeal by permission of the court of appeals; that ordinarily sec. 808.03(2), Stats., envisions the court of appeals looking at the equities of each individual case to determine whether the aggrieved party should be allowed to obtain appellate review of a non-final order; that it is not necessary for the court of appeals to exercise its discretion on the basis of each case in this type of order; that for the reasons set forth in Abney, every order denying a motion to dismiss based on double jeopardy falls within the criteria of sec. 808.03(2), Stats., for granting leave to appeal; and that therefore the court of appeals should grant every petition for leave to appeal such an order as a matter of course. Justice Callow and I would, therefore, pursuant to this court's superintending and administrative authority ⁸ and in order to expedite court processes and to further justice, direct the court of appeals (1) to grant each defendant leave to appeal from a pretrial order denying a motion to dismiss on double jeopardy grounds as a matter of course if the defendant elects to petition the court of appeals in the time and manner provided in Rule 809.50, Stats.; ⁹ and (2) to establish procedures requiring the parties and the court to give the appeal expedited treatment. ¹⁰

II.

We turn now to the merits of defendant's claim that a further prosecution is barred by the double jeopardy clauses of the state and federal constitutions. Jeopardy had attached at the time the mistrial was declared because the jury had been selected and sworn. Sec. 972.07, Stats.; ¹¹ Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). Although jeopardy had attached, the trial did not end in a conviction or an acquittal. Whether further prosecution is permissible depends on the facts and circumstances of the case.

A brief description of the context in which a mistrial was declared by the circuit court follows: The defendant was charged in a...