State v. Severson
| Decision Date | 03 September 1992 |
| Docket Number | No. 92-0959-CR,92-0959-CR |
| Citation | 171 Wis.2d 348,493 N.W.2d 271 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. William R. SEVERSON, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Appeal from a judgment and an order of the circuit court for Dane county: Daniel R. Moeser, Judge. Affirmed.
This is a single-judge appeal decided pursuant to sec. 752.31(2)(f), Stats. Severson appeals from a judgment convicting him of hit and run and an order denying his motion to dismiss the charge. The issue is whether prosecution for criminal hit and run, contrary to sec. 346.67(1)(a), Stats., following a civil charge and forfeiture for failure to report, contrary to sec. 346.70(1), Stats., violates Severson's double jeopardy rights guaranteed by the fifth amendment to the United States Constitution and art. I, § 8 of the Wisconsin Constitution.
Because the charge for failure to report is a civil offense not involving punishment, we conclude that Severson was not placed in double jeopardy by the subsequent criminal prosecution for hit and run. We therefore affirm.
The basic facts are undisputed. On May 5, 1991, at approximately 2:10 a.m., William Severson proceeded south through the intersection of Lake and Johnson Streets in Madison and collided with a vehicle traveling east on Johnson Street. Severson then backed up slightly and hurried away on Johnson Street. The other vehicle spun around after the collision and remained stopped, facing west on Johnson Street. The police found Severson's vehicle on the sidewalk a few blocks away from the accident scene with a damaged front end.
Severson was contacted by the police and he admitted to being involved in the accident and stated he was afraid because he was underage and had been drinking. The police subsequently charged Severson with hit and run, operating while under the influence (OWI), and failure to report an accident. On August 7, 1991, Severson entered no contest pleas to the OWI and failure to report charges. On the same date, he filed a motion to dismiss the hit and run charge on the ground that successive prosecutions for failure to report and hit and run would violate his double jeopardy rights. The trial court denied Severson's motion. Severson then pled no contest to the hit and run. He appeals from the judgment of conviction for hit and run and from the order denying his motion to dismiss the charge.
Whether Severson's double jeopardy rights were violated is a question of law which we decide de novo. State v. Kramsvogel, 124 Wis.2d 101, 107, 369 N.W.2d 145, 147-48 (1985).
Severson argues that Grady v. Corbin, 495 U.S. 508 (1990), bars the subsequent criminal prosecution in this case. However, as Severson acknowledges, we recently addressed Grady 's effect and we concluded that it does not overrule a long line of United States Supreme Court cases, including United States v. Halper, 490 U.S. 435 (1989), which examines whether a penalty is civil or criminal for the purpose of double jeopardy. State v. Lawton, 167 Wis.2d 461, 472-74, 482 N.W.2d 142, 146-48 (Ct.App.1992).
Severson does not dispute that failure to report in violation of sec. 346.70, Stats., is a civil offense. Therefore, the question presented is whether the penalty imposed against Severson is punitive rather than remedial. Lawton, 167 Wis.2d at 465-67, 482 N.W.2d at 144-45 (1982). Whether a statutorily imposed penalty is a criminal...
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