State v. Poveda, 91-0596-CR

• Decision Date: 14 November 1991
• Docket Number: No. 91-0596-CR,91-0596-CR
• Citation: 166 Wis.2d 19,479 N.W.2d 175
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Antonio C. POVEDA, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 175

479 N.W.2d 175

166 Wis.2d 19

STATE of Wisconsin, Plaintiff-Respondent, v. Antonio C. POVEDA, Defendant-Appellant.

No. 91-0596-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Oct. 8, 1991.

Opinion Released Nov. 14, 1991.

Opinion Filed Nov. 14, 1991.

Suzanne Hagopian, Asst. State Public Defender, on the briefs, Madison, for defendant-appellant.

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

Before EICH, C.J., GARTZKE, P.J., and DYKMAN, J.

EICH, Chief Judge.

Antonio Poveda appeals from a judgment convicting him of theft. The issue is whether the prosecution was barred by the double jeopardy clause of the United States Constitution. We conclude that it was and reverse the judgment.

Poveda stole a car in Madison and was arrested in Waukesha County as he drove toward Milwaukee. He was convicted in Waukesha County of operating a motor vehicle without the owner's consent. He was later convicted of auto theft in Dane County based on the same incident.

A criminal defendant is protected against being twice placed in jeopardy for the same offense under both the United States and Wisconsin constitutions. ¹ The double jeopardy clause embodies three protections: "It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 2090, 109 L.Ed.2d 548 (1990) (citation omitted).

Whether an individual has been placed in jeopardy twice for the same offense is a question of law. As a result, we owe no deference to the trial court's decision. State v. Harris, 161 Wis.2d 758, 760, 469 N.W.2d 207, 208 (Ct.App.1991).

The traditional test for determining whether a prosecution is barred under the clause 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." Under that test, a second prosecution is barred if the offenses have identical statutory elements or if one is a lesser-included offense of the other. Brown v. Ohio, 432 U.S. 161, 168, 97 S.Ct. 2221, 2227, 53 L.Ed.2d 187 (1977). ² Both parties agree that Blockburger does not bar Poveda's second conviction because the statutory elements of theft and operating a vehicle without the owner's consent differ somewhat. ³

That does not end our inquiry, however, for the United States Supreme Court has recently held that if the case passes muster under Blockburger, a second test must be applied:

[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. Grady, 110 S.Ct. at 2093.

In Grady, the defendant was involved in a fatal automobile accident and was charged with failing to keep to the right of the highway median and driving while intoxicated. He pled guilty and was sentenced. Sometime thereafter, he was indicted for negligent homicide and assault arising out of the same incident. The Court held that the second prosecution was barred under the double jeopardy clause because it would necessarily be based on proof of the same conduct for which the defendant already had been convicted. Id. Among the reasons offered by the Grady court in support of its decision were these:

Successive prosecutions, ... whether following acquittals or convictions, raise concerns that extend beyond merely the possibility of an enhanced sentence.... [T]he 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 [or her] to embarrassment, expense and ordeal and compelling him [or her] to live in a continuing state of anxiety and insecurity.... Multiple prosecutions also give the State an opportunity to rehearse its presentation of proof, thus increasing the risk of an erroneous conviction for one or more of the offenses charged. Id., 110 S.Ct. at 2091-92 (citations omitted).

The state concedes that if Grady applies, Poveda's prosecution in Dane County is barred because the same conduct which formed the basis of the Waukesha County conviction for operating the motor vehicle without the owner's consent was also used to prove that Poveda "took [the car] and carried [it] away" in Dane County.

Characterizing Grady as barring only "successive" prosecutions, the state asserts that the "policy reasons" underlying the Grady "same conduct" test are those supporting finality: the need to ameliorate the danger of "repeated, successive attempts to convict [a defendant]; and the opportunity to rehearse the state's proof so as to increase the risk of an erroneous conviction...." According to the state, that policy is not implicated here because Poveda's prosecutions were not "successive" but rather were "simultaneous or continuing prosecutions" which Grady does not reach. ⁴ Thus, says the state, Grady is inapposite.

In so arguing, the state emphasizes the fact that this is not a case where the second prosecution was initiated after the first had been taken to its completion--whether by conviction or acquittal--but rather was instituted contemporaneously with the first. ⁵ We think the state's emphasis on timing--on the fact that the Waukesha prosecution had not been carried to its completion before the Dane County prosecution was commenced--misses the point. We believe the determinative moment is that at which jeopardy attaches, for that is, after all, "the lynchpin for all double jeopardy jurisprudence." Crist v. Bretz, 437 U.S. 28, 38, 98 S.Ct. 2156, 2162, 57 L.Ed.2d 24 (1978) (citation omitted).

Where there is no trial, jeopardy attaches upon the court's acceptance of a guilty or no contest plea. State v. Comstock, 163 Wis.2d 218, 221, 471 N.W.2d 596, 597 (Ct.App.1991) (petition for review granted). Jeopardy attaches in a jury trial when the jury is sworn. In a trial to the court alone, it attaches when the first witness is sworn. Sec. 972.07(1), Stats. And once it attaches, jeopardy continues until a judgment of conviction is entered. Comstock, 163 Wis.2d at 223, 471 N.W.2d at 598; Salters v. State, 52 Wis.2d 708, 714-715, 191 N.W.2d 19, 22 (1971). "There is but one continuing jeopardy until the defendant ... [is] legally convicted or acquitted." Id. at 714, 191 N.W.2d at 22 (citation omitted).

Jeopardy attached on the Waukesha County charge when Poveda entered his plea of no contest on October 24, 1989. The court entered a judgment of conviction the same day. Jeopardy attached on the Dane County charge when Poveda initially pleaded no contest to the charge on May 7, 1990, and continued until a judgment of conviction was entered on October 18 1990. ⁶ The Dane County conviction is thus a "subsequent conviction" for double jeopardy purposes within the meaning of Grady. Poveda was subject to two separate...