COURT OF APPEALS DECISION DATED AND RELEASED October 12, 1995 |
NOTICE |
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Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and Rule 809.62(1), Stats. |
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No. 94-0861-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
JAMES N. SUTHERLAND,
Defendant-Appellant.
APPEAL from judgment of
the circuit court for La Crosse County:
MICHAEL J. MULROY, Judge. Affirmed.
Before Eich, C.J.,
Gartzke, P.J., and Vergeront, J.
PER
CURIAM. James Sutherland appeals from a judgment convicting
him of one count of theft by fraud and nineteen counts of forgery. Sutherland argues that his convictions
violate the Double Jeopardy clauses of the United States and Wisconsin
constitutions because they constitute multiple punishments for the same
crime. We conclude that they do not and
affirm the judgment.
Sutherland ran a small
business, National Limousine Service.
For over a year, he billed Soo Line Railroad for services National
Limousine Service did not actually provide by filing false vouchers with the
company. He was convicted of both theft
by fraud and forgery for his actions.
A criminal defendant is
protected against being twice placed in jeopardy for the same offense under
both the United States and Wisconsin constitutions.[1] The Double Jeopardy Clause embodies three
protections. "`It protects against
a second prosecution for the same offense after acquittal. It protects against a second prosecution for
the same offense after conviction. And
it protects against multiple punishment for the same offense.'" State v. Kurzawa, 180 Wis.2d 502, 515, 509 N.W.2d 712,
717, cert. denied, 114 S. Ct. 2712 (1994), quoting North Carolina
v. Pearce, 395 U.S. 711, 717 (1969).
This case involves only the last of the three protections. "Whether an individual has been placed
twice in jeopardy for the same offense is a question of law, and we owe no
deference to the circuit court's determination." State v. Harris, 161 Wis.2d 758, 760, 469 N.W.2d
207, 208 (Ct. App. 1991).
The Wisconsin Supreme
Court has established a two-part test to determine whether multiple punishments
may be imposed upon a defendant in a single prosecution. State v. Sauceda, 168 Wis.2d
486, 493-95, 485 N.W.2d 1, 4 (1992).
The first question is whether the offenses are identical in law and in
fact. Id. If they are, then the offenses are
multiplicitous. State v. Grayson,
172 Wis.2d 156, 159, 493 N.W.2d 23, 25 (1992).
If the charges are different in law or fact, they still may be
multiplicitous if the legislature intended them to be brought as a single
count. Id. Offenses that are multiplicitous under that
second test do not offend the Double Jeopardy Clause. As the supreme court stated in Grayson:
Only
the first factor of the multiplicity test implicates the double jeopardy
clauses of the state and federal constitutions. Once it is determined that the offenses are different in law or
fact, double jeopardy concerns disappear.
The second factor of the test is solely a
question of statutory interpretation.
Criminal charges that are multiplicitous under this factor are
impermissible because they contravene the will of the legislature.
Id. at
159 n.3, 493 N.W.2d at 25 (citation omitted).
Forgery and theft by
fraud do not contain the same legal elements.
As the State aptly explains:
Theft
by fraud requires that the defendant actually have received title to the
property of another by a false representation and that the owner was actually
deceived and defrauded by the representation, while forgery does not. Forgery requires the making or alteration of
a document, while theft by fraud does not.[2]
Because
these two crimes do not contain the same legal elements, "double jeopardy
concerns disappear." Grayson,
172 Wis.2d at 159 n.3, 493 N.W.2d at 25. Conviction of both forgery and theft
by fraud does not constitute multiple punishment for the same offense.[3]
Sutherland next contends
that his conviction of both crimes violates § 939.66, Stats., because the convictions were
both based on the same factual circumstances.
The statute provides that, upon conviction for a crime, "the actor
may be convicted of either the crime charged or an included crime, but not
both." Subsection (1) of the
statute defines an included crime as "[a] crime which does not require proof
of any fact in addition to those which must be proved for the crime
charged."
Notwithstanding the
legislature's use of the word "fact" in § 939.66, Stats., the supreme court has ruled
that the test for determining whether a crime is an included crime of another
under § 939.66 is whether the crimes have the same legal elements. See State v. Carrington, 134
Wis.2d 260, 264, 397 N.W.2d 484, 486 (1986).
The supreme court explained:
It is well settled that under this
court's interpretation of sec. 939.66(1), Stats. ..., this court uses the
"elements only" test to determine whether one offense is included
within another....
The
elements only test focuses on the statutes defining the offenses, not the facts
of a given defendant's activity....
....
One commentator has suggested that the elements
only test contravenes the statutory language of sec. 939.66(1). Several commentators criticize the elements
only test as being too rigid and as lacking the flexibility which permits a
fact finder to fit the verdict to the conduct proved. Other commentators recognize the elements only test as providing
the significant advantages of judicial economy and certainty. Once a decision establishes that a crime is
a lesser included offense, that decision settles the issue for all cases and
all parties absent a modification of the statutes defining the crimes.
Id. at
264, 266, 397 N.W.2d at 486-87 (citation omitted). Under Carrington, we must reject Sutherland's
argument that his conviction of both crimes violates § 939.66 because the
convictions are based on the same facts.
Section 939.66, as interpreted by the supreme court, focuses on the
legal elements of the offenses, not the factual circumstances, in determining
whether one offense is included within another.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] The Double Jeopardy Clause of the United States Constitution provides: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The Wisconsin Constitution states: "[N]o person for the same offense may be put twice in jeopardy of punishment." Wis. Const. art. I, § 8. Sutherland briefly suggests that the protections against double jeopardy provided by the Wisconsin Constitution differ from those provided by the United States Constitution, but does not develop this argument. Because the State constitutional protection against double jeopardy parallels the federal constitutional protection, we do not consider them separately. See State v. Killebrew, 115 Wis.2d 243, 246 n.2, 340 N.W.2d 470, 473 (1983).
[2] The elements of theft by fraud are: (1) the defendant made a false representation to the owner of the property; (2) the defendant knew that the representation was false; (3) the defendant made the representation with intent to deceive and to defraud; (4) the defendant obtained title to the property by the false representation; (5) the owner of the property was deceived by the representation; and (6) the owner of the property was defrauded by the representation. Wis J I—Criminal 1453 (1991). The elements of forgery are: (1) the document at issue was a writing by which legal rights or obligations are created or transferred; (2) the defendant falsely made the document, and it was made to appear to have been made by another person; and (3) the defendant falsely made the document with intent to defraud. Wis J I—Criminal 1491 (1991).
[3] Our conclusion that conviction of both crimes does not constitute multiple punishment for the same offense is in accord with the recent decision of the supreme court that successive prosecutions for theft by fraud and forgery do not violate the Double Jeopardy Clause. Cf. Kurzawa, 180 Wis.2d at 509, 509 N.W.2d at 715.