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Appeals court finds prosecutors properly charged Milwaukee man on second try

By: Erika Strebel, [email protected]//April 27, 2016//

Appeals court finds prosecutors properly charged Milwaukee man on second try

By: Erika Strebel, [email protected]//April 27, 2016//

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An appeals court has ruled that prosecutors properly charged a Milwaukee man with a different crime after finding out that he had not been previously found guilty of a felony.

During a January 2014 traffic stop, a Milwaukee police officer arrested Joshua Berry based on an outstanding warrant. Berry was a passenger in the stopped car and told the officer that he had a gun and a concealed-carry permit from Florida.

Based on certified court records from Milwaukee County Circuit Court indicating Berry had been convicted of a felony in Milwaukee in 2004, prosecutors charged Berry under Wis. Stat. 941.29(2)(a), possession of a firearm by a felon.

Berry waived his right to a jury trial and in August 2014, during his bench trial, he stipulated that he had been convicted of a felony in 2004 and possessed a gun during the 2014 traffic stop. Berry’s defense was that he fully disclosed his criminal background, including the 2004 conviction, when he applied for the Florida concealed-carry permit, and that the permit allowed him to carry a gun in Wisconsin.

The judge found Berry guilty, but later dismissed the charges because Berry’s counsel discovered at sentencing that Berry had not been convicted of a felony in 2004. Rather, he had pleaded guilty to a misdemeanor.

In October 2014, prosecutors then charged Berry under a different statute, Wis. Stat. 941.29(2)(b), possession of a firearm by a youth who a judge had found guilty of crime.

Berry made a motion in February 2015 to dismiss the case, contending prosecutors had violated his right to be free from double jeopardy.

However, the circuit court in May 2015 denied Berry’s motion. Berry appealed to the District 1 Court of Appeals, which found Tuesday that the second charge was proper.

In Wisconsin, when multiple offenses charged are different in fact or in law, it is presumed that the Legislature intended to authorize multiple punishments, and the defendant has the burden of proof of showing that the Legislature in fact intended the opposite.

According to the three-judge panel, the charges were different in law because the prosecutors charged Berry first under a statute prohibited the possession of a gun by a felon and the second charge was under a different part of the statute that prohibited youth previously found guilty of a crime from possessing a gun.

Also, according to the appeals court, Berry failed to fulfill his burden of showing that the Legislature, in enacting the statutes under which he was charged, intended to prevent multiple charges.

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