99-1128 State v. Hansen

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The circuit court erred in holding that sec. 961.45 required application of the “elements only” test of Blockburger v. United States, 284 U.S. 299 (1932) to determine whether the prior conviction was for the same act.

Accordingly, we reverse the circuit court’s order denying defendant’s motion for post-conviction relief and the judgment of conviction.

“In sum, we conclude that Wis. Stat. sec. 961.45 bars a Wisconsin prosecution under Chapter 961 for the same conduct on which a prior federal conviction is based. Recognition of the context in which the language ‘same act’ was chosen requires this construction of the statute. Because Hansen’s state conviction is for the same conduct for which she was previously convicted in federal court, we reverse the judgment of conviction and the circuit court’s order denying her post-conviction relief.”

CONCURRING OPINION: Abrahamson, Ch. J. “My point of disagreement with the dissenting opinion lies not in its reverence toward stare decisis, nor in its explanation of its precepts, but rather in its application of these important principles to a footnote in [State v.]Petty. … It is improper to erect the high bar of stare decisis until one has successfully cleared the high bar of showing that Petty note 13 is a judicial precedent in the first instance.”

DISSENTING OPINION: Wilcox, J., with whom Crooks, J., joins. “The majority opinion reinterprets Wis. Stat. sec. 961.45 (1995-96), which this court first interpreted five years ago in a unanimous decision. Majority op. at **15-42; State v. Petty, 201 Wis. 2d 337, 354-62, 548 N.W.2d 817 (1996). In so doing, the majority repudiates our recent Petty decision, but ducks the high bar for overturning precedent on a point of statutory construction. The majority’s unwillingness to engage in the appropriate analysis is understandable; its opinion contains little justification to underpin its departure from our controlling precedent.”

Milwaukee County, Moroney, J., Bradley, J.

Attorneys:

For Appellant: Pamela Pepper, Milwaukee

For Respondent: Gregory M. Posner-Weber, James E. Doyle, Madison