PUBLISHED OPINION
Case No.: 95-0314-CR
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
LARRY R. DOWE,
Defendant-Appellant.
Submitted on Briefs: August 31, 1995
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: October 25, 1995
Opinion Filed: October
25, 1995
Source of APPEAL Appeal from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Waukesha
(If
"Special", JUDGE: MARIANNE E. BECKER
so indicate)
JUDGES: Anderson, P.J., Nettesheim and Snyder, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of the defendant-appellant, the cause was
submitted on the briefs of Bryan J. Borman, assistant state public
defender.
Respondent
ATTORNEYSOn behalf of the plaintiff-respondent, the cause was
submitted on the brief of James E. Doyle, attorney general and Stephen
W. Kleinmaier, assistant attorney general.
|
COURT OF APPEALS DECISION DATED AND RELEASED October
25, 1995 |
NOTICE |
|
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals. See § 808.10 and Rule 809.62(1), Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-0314-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
LARRY
R. DOWE,
Defendant-Appellant.
APPEAL
from an order of the circuit court for Waukesha County: MARIANNE E. BECKER, Judge. Affirmed.
Before
Anderson, P.J., Nettesheim and Snyder, JJ.
NETTESHEIM,
J. The appellant, Larry R. Dowe, contends that
the State's multiple prosecution of him for the crimes of possession of a
controlled substance with intent to deliver pursuant to § 161.41(1m), Stats., and failure to display a tax
stamp pursuant to § 139.95(2), Stats.,
violates his double jeopardy protections under the federal and state
constitutions. Specifically, Dowe
contends that possession of a controlled substance with intent to deliver is a
lesser-included offense of a tax stamp violation. In a nonfinal order, the trial court disagreed. We affirm the trial court's ruling and
remand for further proceedings.[1]
The
facts are simply stated. Following a
bindover at a preliminary hearing, the State filed an information charging Dowe
with the two crimes. Dowe countered
with a motion to dismiss, contending that the multiple prosecution violated his
double jeopardy rights because the possession with intent to deliver charge is
a lesser-included offense of the tax stamp charge. The trial court denied Dowe's motion. This appeal ensued.
Whether
the State's multiple prosecutions violate Dowe's double jeopardy protections
under the Fifth Amendment to the United States Constitution and Article I,
Section 8 of the Wisconsin Constitution is a question of law that we decide de
novo. See State v. Sauceda,
168 Wis.2d 486, 492, 485 N.W.2d 1, 3 (1992).
A
defendant cannot be convicted under more than one statute for the same criminal
act if one crime is an included crime of the other. State v. Eastman, 185 Wis.2d 405, 411, 518 N.W.2d
257, 259 (Ct. App. 1994). An offense is
a “lesser-included” offense if all of its statutory elements can be
demonstrated without proof of any fact or element in addition to those which
must be proved for the “greater” offense.
State v. Carrington, 134 Wis.2d 260, 265, 397 N.W.2d 484,
486 (1986); § 939.66(1), Stats. “If one of the charged offenses is not
considered a lesser included offense of the other, then this court will
conclude that the legislature intended to permit cumulative punishments for
both offenses unless other factors clearly indicate a contrary legislative
intent.” Eastman, 185
Wis.2d at 411, 518 N.W.2d at 259.
We
conclude that possession of a controlled substance with intent to deliver is
not a lesser-included offense of a tax stamp violation. The crime of possession with intent to
deliver requires the State to prove, inter alia, that the defendant actually
intended to deliver what he or she knew or believed to be
marijuana. See Wis J I—Criminal 6020. The tax stamp statute, by contrast, requires
the State to prove, inter alia, that the defendant is a “dealer” within the
meaning of § 139.87(2), Stats.,
and that the defendant has not paid the appropriate tax on the controlled
substance. See § 139.95(2),
Stats. The term “dealer” under § 139.87(2) includes an individual
who possesses more than 42.5 grams of marijuana. See Wis J
I—Criminal 6009. Possession of a
controlled substance with intent to deliver requires no such proof. From this comparison, it is self-evident
that these crimes require the State to prove different elements.
Dowe
seems to reason that because the tax stamp violation requires the State to
prove that he is a “dealer” in violation of ch. 161, Stats., and because possession with intent to deliver is
recited in ch. 161, the latter is a lesser-included offense of the former. However, as our previous discussion reveals,
a tax stamp “dealer” must not only perform certain acts recited in ch. 161, but
must also do so with regard to a minimum threshold amount of contraband. See § 139.87(2), Stats.
And, as that discussion further reveals, the State is not required to
prove such threshold amount of contraband as an element of possession with
intent to deliver. See
§ 161.41(1m), Stats.
We
acknowledge that in a given multiple-prosecution case as this, the evidence
might show the requisite amount of contraband.
However, such does not establish a double jeopardy violation. A double jeopardy “elements only” analysis
focuses on the statutes defining the offenses, not the facts of a given
defendant's activity. See Carrington,
134 Wis.2d at 264, 397 N.W.2d at 486.
As we have demonstrated, these offenses require the State to prove
different elements. Thus, these
multiple prosecutions do not violate Dowe's double jeopardy protections.[2]
Alternatively,
Dowe asks that we fashion a stricter interpretation of Wisconsin's
constitutional double jeopardy provision than that given to the federal
provision. However, Wisconsin's
constitutional protection against double jeopardy is guided by the rulings of
the United States Supreme Court concerning the federal constitutional
provision. See State v.
Kurzawa, 180 Wis.2d 502, 522, 509 N.W.2d 712, 721, cert. denied,
512 U.S. ___, 114 S. Ct. 2712 (1994).
Those rulings apply the Blockburger[3]
“elements only” test, and our supreme court has applied a similar analysis when
construing Wisconsin's constitutional double jeopardy provision. See Kurzawa, 180 Wis.2d
at 525, 509 N.W.2d at 721-22. We are
principally an error-correcting court and we are bound by the decisions of our
supreme court. State v. Donner,
192 Wis.2d 305, 316, 531 N.W.2d 369, 374 (Ct. App. 1995). We reject Dowe's request to change existing
supreme court law on this point.
We
affirm the trial court's nonfinal order and we remand for further proceedings
on the charges recited in the information.
By
the Court.—Order affirmed.
[1] We previously
granted Dowe's petition for leave to appeal the trial court's nonfinal order
denying his motion to dismiss the action.
[2] If the multiple
offenses survive the “elements only” double jeopardy analysis, a presumption
exists that the legislature intended to permit cumulative punishments. State v. Sauceda, 168 Wis.2d
486, 495, 485 N.W.2d 1, 4 (1992). This
presumption is overcome by the demonstration of a contrary legislative
intent. See id. at
495, 485 N.W.2d at 5. We construe
Dowe's appellate challenge as traveling only to the first prong of this analysis. Since we have concluded that the offenses
are different, we do not discuss whether the legislature nonetheless did not
intend to allow multiple prosecutions or punishments.