Abuse of Discretion

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WI Court of Appeals – District II

Case Name: State of Wisconsin v. Anthony Alvardo

Case No.: 2016AP142-CR

Officials:  Neubauer, C.J., Gundrum and Hagedorn, JJ.

Focus: Abuse of Discretion

Anthony Alvarado was charged with second degree sexual assault. The case went to trial, and the jury was instructed to consider both second-degree sexual assault and the lesser included offense of third-degree sexual assault. After several hours of deliberation and multiple notes to the court, the jury sent a final note stating that all jurors “agree on not guilty for the second degree,” but “are hung on the third degree.” The court concluded the jury was deadlocked and ordered a mistrial.

The State then sought to retry Alvarado, and he moved to dismiss the second-degree charge based on the double jeopardy provisions of the United States and Wisconsin constitutions. The circuit court denied his motion, and he sought leave to appeal the order. We grant Alvarado’s petition for leave to appeal and conclude that retrial on the second-degree sexual assault charge does not offend double jeopardy.

Alvarado does not argue that the circuit court erroneously exercised its discretion in ordering a mistrial or that the court should have instructed the jury on a partial verdict. Rather, Alvarado insists that the jurors’ professed agreement on the second-degree sexual assault charge constituted a final verdict. We hold that it did not. Because the jury here was free to reconsider its stance on the second-degree sexual assault charge, the note was not a verdict of acquittal, and retrying Alvarado on the second-degree charge does not violate double jeopardy.

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.