01-0826 State v. Davison

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“As defense counsel points out, Wis. Stat. § 939.66(2m) contains no language limiting its application to any particular provisions of the statutes or any types of batteries. Instead, the statute is applicable to the entire criminal code. Furthermore, the phrase ‘or equally serious’ is included in the statute, which in this case would encompass battery by a prisoner, a Class D felony. The battery by a prisoner statute, Wis. Stat. § 940.20, provides that any battery by a prisoner is a Class D felony, whereas Wis. Stat. § 940.19 deals with the degree of crime. Since the enhancer in § 940.20 is the status of the actor, a Class A misdemeanor or a Class E felony would be charged as a Class D felony if the actor is a prisoner, thereby accomplishing the deterrent effect the legislature sought. Consequently, since the enhancer is the status of the actor in § 940.20 and not the degree of the crime, there is not an ambiguity problem between the statutes with regard to the word ‘battery.’…

“Based on the clear statement provided in Wis. Stat. § 939.66(2m) and the lack of legislative intent to the contrary, we conclude that § 939.66 covers both Wis. Stat. §§ 940.19 and 940.20 in this case. Therefore, the two battery charges are multiplicitous and there is a double jeopardy violation.”

Reversed and remanded for determination of an appropriate remedy.

Recommended for publication in the official reports.

Dist II, Kenosha County, Bastianelli, J., Anderson, J.

Attorneys:

For Appellant: Shelly J. Rusch, Kenosha; Diane M. Welsh, Madison

For Respondent: Keith A. Findley, Madison