936 N.W.2d 125
Wis.2019Background
- Between Jan. 10 and Jan. 25, 2017, Lopez (a Wal‑Mart employee) and Rodriguez allegedly committed seven self‑checkout retail thefts; individual thefts ranged $126.33–$313.95 and totaled $1,452.12.
- The State charged each defendant with a single Class I felony (retail theft aggregated under Wis. Stat. § 971.36(3) and § 943.50(4)(bf)) rather than seven separate Class A misdemeanors.
- Defendants moved to dismiss, arguing § 971.36(3)’s reference to "theft" is limited to the general theft statute, Wis. Stat. § 943.20, and therefore retail theft (§ 943.50) may not be aggregated.
- The circuit court granted the motions and dismissed the complaints without prejudice; the court of appeals reversed, holding § 971.36(3) authorizes aggregation of retail thefts.
- The Wisconsin Supreme Court granted review and affirmed the court of appeals, holding that "theft" in § 971.36(3) includes retail theft under § 943.50 so multiple retail thefts may be charged as a single offense when the § 971.36(3)(a) criteria are met.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Lopez) | Held |
|---|---|---|---|
| Whether "theft" in Wis. Stat. § 971.36(3) includes retail theft (Wis. Stat. § 943.50) | "Theft" is broad and means any type of theft, including retail theft; § 971.36(3) applies to "any case of theft." | "Theft" is a term of art defined by § 943.20; § 971.36(3) should be limited to § 943.20 offenses, not retail theft. | Held: "Theft" in § 971.36(3) includes retail theft (§ 943.50); the State may aggregate retail thefts under § 971.36(3) when statutory criteria are satisfied. |
| Whether statutory titles may inform interpretation here | Titles corroborate the plain meaning and support including retail theft among "theft" offenses. | Titles are not part of statutes and should not be used to expand or create ambiguity when the text is plain. | Majority: titles are permissible contextual indicators to confirm plain meaning (but cannot override text); concurrence would have relied solely on plain text and not on titles; dissent rejected the majority's broader reading. |
Key Cases Cited
- Kalal v. Circuit Court for Dane Cty., 271 Wis. 2d 633, 681 N.W.2d 110 (Wis. 2004) (framework for statutory interpretation: start with text, then context and related statutes).
- State v. Kozel, 373 Wis. 2d 1, 889 N.W.2d 423 (Wis. 2017) (court will not read limitations into plain statutory language).
- State v. Dorsey, 379 Wis. 2d 386, 906 N.W.2d 158 (Wis. 2018) (discusses permissible use of statutory titles when resolving ambiguity).
- State v. Matasek, 353 Wis. 2d 601, 846 N.W.2d 811 (Wis. 2014) (example of using statutory context/titles to interpret related provisions).
- State v. Lopez, 385 Wis. 2d 482, 922 N.W.2d 855 (Wis. Ct. App. 2019) (court of appeals decision holding § 971.36(3) permits aggregation of retail thefts; affirmed by the Supreme Court).