State v. Martin

• Decision Date: 10 January 1985
• Docket Number: No. 83-1401-CR,83-1401-CR
• Citation: 360 N.W.2d 43,121 Wis.2d 670
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Duane Lee MARTIN, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 43

360 N.W.2d 43

121 Wis.2d 670

STATE of Wisconsin, Plaintiff-Respondent, v. Duane Lee MARTIN, Defendant-Appellant-Petitioner.

No. 83-1401-CR.

Supreme Court of Wisconsin.

Argued Nov. 1, 1984.

Decided Jan. 10, 1985.

Mark Lukoff, First Asst., State Public Defender, for defendant-appellant-petitioner.

Stephen W. Kleinmaier, Asst. Atty. Gen., argued, for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.

ABRAHAMSON, Justice.

This is a review of an unpublished decision of the court of appeals filed on March 29, 1984, affirming an order of the circuit court for Milwaukee county, Rudolph T. Randa, Circuit Judge.

The facts are undisputed. Duane Lee Martin, the defendant, was convicted of armed robbery, party to a crime, in violation of secs. 943.32(1)(a) and (2) and 939.05, Stats. 1981-82, and was also convicted of second-degree felony murder, party to a crime, in violation of secs. 940.02(2) and 939.05, 1981-82. On the basis of these convictions, Milwaukee County Circuit Judge Ralph Adam Fine sentenced the defendant to two consecutive seventeen-year terms, one for the armed robbery and the other for the murder conviction, to be served concurrently with the four-year sentence defendant was then serving for a probation revocation.

The defendant moved to vacate the conviction and sentence for armed robbery, arguing that armed robbery was a lesser included crime of second-degree felony murder and that convictions and sentences for both crimes violated the defendant's constitutional protection against double jeopardy. The circuit court (Judge Randa) granted defendant's motion to vacate the conviction and sentence for armed robbery, consistent with State v. Gordon, 111 Wis.2d 133, 330 N.W.2d 564 (1983). Over defendant's objection, the circuit court also vacated the sentence for second-degree murder. Relying on the record of the original sentencing proceeding and stating its intention to implement the original dispositional plan, the circuit court resentenced the defendant for the second-degree murder, increasing the penalty from 17 to 20 years (the statutory maximum), to be served consecutively to the four year sentence the defendant was serving for probation revocation. Thus while the murder penalty was increased, the overall effect was to reduce the total penalty from 34 to 24 years.

The court of appeals affirmed the order of the circuit court, and we affirm the decision of the court of appeals.

There are three issues on review: first, whether, upon vacating the defendant's conviction and sentence for a lesser included felony on double jeopardy grounds, the circuit court has authority to resentence the defendant for the greater offense, (here, second-degree felony murder) after the defendant has commenced serving the sentence; second, whether the double jeopardy guarantee bars the circuit court from increasing the defendant's sentence for second-degree murder after the defendant has commenced serving the sentence; and third, whether the circuit court may increase the sentence relying only on the record of the initial sentence proceeding.

The three issues presented for review are questions of law, and this court need not give deference to the determinations of the circuit court or court of appeals.

We turn first to the power of the circuit court. Upon vacating the conviction and sentence for the lesser included offense (armed robbery), may the circuit court vacate the sentence for the greater offense (second-degree murder) and resentence the defendant when the defendant had commenced serving the sentence for the greater offense?

This court has recognized the inherent power of a trial court to change and modify its sentence. In Hayes v. State, 46 Wis.2d 93, 99-106, 175 N.W.2d 625 (1970), overruled on other grounds, State v. Taylor, 60 Wis.2d 506, 523, 210 N.W.2d 873 (1973), this court examined the common law rule that "a court has power to reconsider the judgment and sentence in a criminal case and to revise and correct it by modifying and even by increasing its severity if done during the term at which the judgment and sentence is pronounced and before the sentence has been executed or put into operation." Id., 46 Wis.2d at 99-100, 175 N.W.2d 625, citing 16 Corp.Jur. 1314. In Hayes the court modified the common law rule so that a trial court could exercise "its inherent power to change and modify its judgments after the execution of the sentence ha[d] commenced and the term ended." Id., 46 Wis.2d at 101, 175 N.W.2d 625. The Hayes court modified the common law rule because the court thought that "[w]ithin reasonable limits ... an unjust sentence should be corrected by the trial court. It is more important to be able to settle a matter right with a little uncertainty than to settle it wrong irrevocably." Id., 46 Wis.2d at 105, 175 N.W.2d 625.

While Hayes affirmed the inherent power of the trial court to modify a sentence, it left open the question of what limitations are placed upon the trial court's inherent power by the federal and state constitutions, by the state statutes, and by considerations of sound sentencing discretion and the administration of the criminal justice system. Specifically the Hayes court noted that double jeopardy questions might be raised if the sentence was increased upon modification. ¹

Consequently, we turn to the second question presented, that is, whether the circuit court's increase of the defendant's sentence for second-degree felony murder violated the defendant's federal double jeopardy protections. ² The fifth amendment instructs that no person "shall be subject for the same offense to be twice put in jeopardy of life or limb."

"Although the federal constitutional guarantee against double jeopardy has 'its roots in antiquity,' it is 'one of the least understood ... provisions of the Bill of Rights' and the holdings of the United States Supreme Court can 'hardly be characterized as models of consistency and clarity.' " State v. Bohacheff, 114 Wis.2d 402, 406, 338 N.W.2d 466 (1983), quoting Whalen v. United States, 445 U.S. 684, 699-700, 100 S.Ct. 1432, 1442, 63 L.Ed.2d 715 (1980) (Rehnquist, J. dissenting). That the application of the double jeopardy clause "has not proved to be facile or routine is demonstrated by [the Court's] acknowledged changes in directions or in emphasis." United States v. DiFrancesco, 449 U.S. 117, 127, 101 S.Ct. 426, 432, 66 L.Ed.2d 328 (1980).

The issue of double jeopardy arises in a number of contexts, e.g., reprosecution after mistrial, multiple proceedings at the defendant's instigation, reprosecution after acquittal, reprosecution after conviction, and multiple punishments for the same offense, and involves several concepts that cannot be encompassed readily in a single formulation. In lieu of a single formulation, courts have described the various purposes of the clause: to protect the defendant from multiple trials and multiple punishments for the same offense; to preserve the finality of judgments; to protect the integrity of final judgments; to bar the government from a second chance to supply evidence which it failed to furnish in the first proceeding; and to protect the defendant's right to have the trial completed by a particular tribunal.

The rationale underlying the prohibition against double jeopardy has been described by the United States Supreme Court as follows:

"The constitutional prohibition against 'double jeopardy' was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.... 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 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." Green v. United States, 355 U.S. 184, 187-88 [78 S.Ct. 221, 223, 2 L.Ed.2d 199] (1957), quoted with approval in United States v. DiFrancesco, 449 U.S. 117, 127-28, 101 S.Ct. 426, 432, 66 L.Ed.2d 328 (1980). ³

A corollary of this principle of fairness is that the defendant once convicted and punished, should not live in a state of anxiety and insecurity for fear of further punishment for the same offense. The double jeopardy clause assures finality and fairness in the administration of the criminal justice system. United States v. DiFrancesco, 449 U.S. 117, 128-29, 101 S.Ct. 426, 432-33, 66 L.Ed.2d 328 (1980).

The defendant contends that an increase in the sentence for second-degree felony murder after the defendant has begun to serve the sentence violates the prohibition of double punishment inherent in the double jeopardy clause.

This court and federal courts have frequently stated that the double jeopardy guarantee prevents a trial court from increasing a sentence after the defendant has commenced serving the sentence. See, e.g., Chandler v. United States, 468 F.2d 834 (5th Cir.1972); Scott v. State, 64 Wis.2d 54, 58, 218 N.W.2d 350 (1974). This rule is usually derived from Ex parte Lange, 18 Wall. 163, 85 U.S. 163, 21 L.Ed. 872 (1874), and United States v. Benz, 282 U.S. 304, 307, 51 S.Ct. 113, 114, 75 L.Ed. 354 (1931). In Lange, the trial court imposed both a fine and imprisonment when the statute authorized only one or the other. The defendant paid the fine. The United States Supreme Court held that in modifying the sentence to impose imprisonment after the defendant paid the fine, the trial court had imposed double punishment. In Benz the only issue before the Court was the power of the Court to reduce the sentence. The Court's discussion of the unconstitutionality of increasing a sentence and its interpretation of Lange were dictum.

The Lange-Benz rule...