5th Amendment Violation – Double Jeopardy

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Alexander M. Schultz

Case No.: 2017AP1977-CR

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: 5^th Amendment Violation – Double Jeopardy

He also appeals an order denying postconviction relief. The issue on appeal is whether the State’s prosecution of Schultz for sexually assaulting a child “on or about October 19, 2012” violated Schultz’s constitutional right to be free from double jeopardy because he was previously prosecuted for, and acquitted of, the repeated sexual assault of the same child “in the late summer to early fall of 2012.”

To resolve this issue, we must determine the proper test to ascertain the scope of jeopardy when it is unclear whether successive prosecutions are the same in fact. Schultz argues that we should look to a reasonable person’s understanding of the scope of jeopardy at the time jeopardy attached in the first prosecution, and disregard all proceedings after that time. The State responds that we should look to how a reasonable person would understand the scope of jeopardy in light of the entire record in the first prosecution, including the trial.

We agree with the State and conclude that the proper test to ascertain the scope of jeopardy is to look at the entire record in the first prosecution. We further conclude that a reasonable person familiar with the facts and circumstances of the entire record in the first prosecution against Schultz would understand “early fall of 2012” to mean no later than September 30, 2012. Accordingly, Schultz’s subsequent prosecution for a sexual assault on October 19, 2012, did not violate his constitutional right to be free from double jeopardy. We therefore affirm.

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Derek A. Hawkins is a trademark corporate counsel attorney for Harley-Davidson, where he concentrates his practice on brand protection and strategy.