2024 WI App 29
Wis. Ct. App.2024Background
- Carl McAdory was tried and found guilty by a jury on two counts stemming from a single incident: (1) Operating While Intoxicated (OWI) and (2) Operating with a Restricted Controlled Substance (RCS) under Wis. Stat. § 346.63(1).
- Pursuant to the "single-conviction provision" of § 346.63(1)(c), the State moved at the first sentencing to enter conviction and sentence McAdory only on the OWI charge and to dismiss the RCS count.
- McAdory appealed and obtained reversal on the OWI conviction for due process violations, remanding for a new trial on that charge. The RCS count was not addressed in the first appeal.
- After remittitur, the State moved to dismiss the OWI charge, reinstate the RCS count, and sentence McAdory on the RCS count, arguing this complied with the single-conviction provision.
- McAdory objected, arguing the court lacked authority to reinstate the RCS count and that doing so violated double jeopardy. The circuit court granted the State's motion. McAdory appealed the subsequent denial of his postconviction motion.
Issues
| Issue | Appellant's (McAdory's) Argument | State's Argument | Held |
|---|---|---|---|
| Circuit court authority to reinstate/sentence on RCS count | Court lacked authority to reinstate a dismissed count post-remittitur | Single-conviction statute and case law implicitly allow it | Circuit court's action was proper under statute and binding case law |
| Effect of single-conviction provision | Dismissal of RCS count at sentencing was irreversible | Provision allows for shift in conviction if original reversed | Dismissal was not necessarily permanent; shifting is implicitly allowed |
| Requirement to file protective cross-appeal | State forfeited right by not appealing RCS dismissal in first appeal | No duty to appeal as RCS verdict was guilty; only OWI challenged | No forfeiture; situation distinct from cases requiring cross-appeal |
| Double Jeopardy | Reinstatement of RCS count violated double jeopardy protections | No successive trial or punishment; only one sentence | No double jeopardy violation as no new trial or punishment for same act |
Key Cases Cited
- State v. Bohacheff, 114 Wis. 2d 402 (interpreting single-conviction provision to ensure prosecution terminates with one conviction for all purposes)
- Town of Menasha v. Bastian, 178 Wis. 2d 191 (interpreted single-conviction provision to permit sentencing on one count and dismissal of others when guilty on multiple related counts)
- United States v. Wilson, 420 U.S. 332 (double jeopardy does not bar correction of legal errors where no risk of new trial or multiple punishments)