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99-2234 State v. Trawitzki

By: dmc-admin//July 2, 2001//

99-2234 State v. Trawitzki

By: dmc-admin//July 2, 2001//

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“As both parties concede, the charges are identical in law because they arise under the same criminal statute, sec. 943.20(1)(a). However, the charges against Trawitzki are not identical in fact. The test for whether charges are not identical in fact is whether ‘the facts are either separated in time or of a significantly different nature.’ Anderson, 219 Wis.2d at 749. To be of a significantly different nature, each charged offense must require proof of an additional fact that the other charges do not. Id. at 750. In this case, each theft charge and each concealment charge against Trawitzki does require proof of an additional fact that the other charges do not, namely, the identity of the individual firearm. Because each charge alleges that Trawitzki either took or concealed a specific firearm, the State must prove the identity of the specific firearm.”

Affirmed.

DISSENTING OPINION: Bradley, J. “[T]he majority ignores the unit of prosecution defined by the statute and determines the unit of prosecution to be the number of firearms stolen. In defining the underlying substantive offense by looking to the penalty provision of the statute, the majority is allowing the tail to wag the dog. Because the majority misreads the statute, misconstrues the legislative history, and allows for gross over-prosecution of theft offenses, I respectfully dissent.”

Review of a Decision of the Court of Appeals, Crooks, J.

Attorneys:

For Appellant: Donald T. Lang, Madison

For Respondent: Sandra L. Nowack, James E. Doyle, Madison

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