COURT OF APPEALS DECISION DATED AND RELEASED January 17, 1996 |
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. 95-2599-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
RONALD G. NADOLSKI,
Defendant-Appellant.
APPEAL from an order of
the circuit court for Outagamie County:
MICHAEL W. GAGE, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
MYSE, J. Ronald G. Nadolski
appeals a nonfinal order denying his motion to dismiss the criminal complaint
charging him with one count of theft by failure to return rental property in
violation of § 943.20(1)(e), Stats.[1] Nadolski contends that double jeopardy bars
prosecution for this offense because he was previously convicted for driving a
motor vehicle without the owner's consent in violation of § 943.23(3), Stats., based on the same
incident. Because we conclude that
prosecution of the two offenses is not precluded by the principles of double
jeopardy, we affirm the order.
Nadolski was charged in
Outagamie County with theft by failure to return a rental car. He had previously been convicted in Ozaukee
County for operating a motor vehicle without the owner's consent based on the
same incident. Nadolski moved both
before the preliminary hearing and after he was bound over for trial for
dismissal of the complaint based upon principles of double jeopardy. The trial court denied his motion to dismiss
and Nadolski appeals.
The double jeopardy
clause[2]
protects against a second prosecution for the same offense after acquittal, a
second prosecution for the same offense after conviction, and multiple
punishment for the same offense. State
v. Kurzawa, 180 Wis.2d 502, 515, 509 N.W.2d 712, 717 (1994). In this case, we are concerned with the
second protection against subsequent prosecution. See State v. Dillon, 187 Wis.2d 39, 51, 522 N.W.2d
530, 535 (Ct. App. 1994). Whether a
subsequent prosecution violates a defendant's right against double jeopardy is
a question of law that we review without deference to the trial court. State v. Jacobs, 186 Wis.2d
219, 223, 519 N.W.2d 746, 748 (Ct. App. 1994).
Both parties agree that
the "same elements" test of Blockburger v. United States,
284 U.S. 299 (1932), is the accepted method for determining which offenses are
the same for double jeopardy purposes. See
Dillon, 187 Wis.2d at 51, 522 N.W.2d at 535. Under the "same elements" test, we
are required to analyze each offense to determine whether either is a lesser
included offense of the other. Jacobs,
186 Wis.2d at 223-24, 519 N.W.2d at 748.
An offense is a lesser included one only if all its statutory elements
can be demonstrated without proof of any fact or element except those proved
for the "greater" offense. Id.
at 224, 519 N.W.2d at 748. Accordingly,
the State can successively prosecute Nadolski for the two offenses if each
offense necessarily requires proof of an element the other does not. See Kurzawa, 180 Wis.2d
at 524, 509 N.W.2d at 721.
Our analysis reveals
that each offense requires proof of an element that the other does not. The elements of theft by failure to return
rental property under § 943.20(1)(e), Stats.,
are:
1. That the defendant had personal
property in his possession or under his control because of a written lease or
written rental agreement.
2. The defendant failed to return
such property within ten days after the written lease or rental agreement
expired.
3.
The defendant intentionally failed to return the property.
See Wis J I—Criminal 1455. In contrast, the elements of operating a
motor vehicle without the owner's consent under § 943.23(3), Stats., are:
1. The defendant intentionally
operated a motor vehicle without the consent of the owner even if the owner
originally had consented to the taking, and
2.
The defendant knew that such operation was without the owner's consent.
See Wis J I—Criminal 1467.2. The elements of these offenses are
dissimilar and it is clear that each offense requires proof of an element the
other does not. Theft by failure to
return rental property requires that there be a written lease or rental agreement
while operating without the owner's consent does not. In addition, operating a motor vehicle without the owner's
consent requires that the defendant operate the vehicle while the theft charge
does not. Under the theft charge, the
defendant need not operate the vehicle, just fail to return it. For example, a defendant could sell the
rental vehicle before he ever operated it and still be liable for failure to
return rental property. Therefore, we
conclude that the "same elements" test is satisfied and double
jeopardy is not violated.
Nadolski cites Brown
v. Ohio, 432 U.S. 161 (1977), as authority that prosecution for these
two offenses is barred by the double jeopardy clause. In Brown, the offenses charged were operating a
motor vehicle without the owner's consent and auto theft. Using the "same elements" test,
the court concluded that operating a motor vehicle without the owner's consent
is a lesser-included offense of auto theft and therefore successive
prosecutions are precluded by the double jeopardy clause. Id. at 168. Operating a motor vehicle without the
owner's consent required no proof beyond which was required for auto
theft. Id. In this case, however, the elements
are not comparable and neither offense is the lesser included offense of the
other. Because different criminal
statutes were charged in Brown than those charged here, Brown
is inapposite to our analysis.
Nadolski further argues
that the Wisconsin legislature did not intend that a defendant be prosecuted
under both § 943.20(1)(e), Stats.,
and § 943.23(3), Stats. See State v. Rabe, 96 Wis.2d
48, 63, 291 N.W.2d 809, 816 (1980).
Nadolski points out that § 943.23(3), Stats.,
was created because the then existing law did not address a situation where an
individual obtained possession of property lawfully by leasing or renting and
continued to use it after the lease expired.
See State v. Mularkey, 195 Wis. 549, 551, 218 N.W. 809,
810 (1928); Wis J I—Criminal
1467 cmt. 1. Nadolski argues that
because § 943.23(3) was designed to address this gap in the former law,
prosecution for both offenses was not envisioned by the legislature.
The problem with this
analysis is that the two offenses are not mutually exclusive. An individual could fail to return rental
property without operating the rented vehicle ten days after the lease
expires. It is also possible to operate
a motor vehicle without the owner's consent without obtaining possession of the
vehicle by virtue of a rental agreement.
Because the two offenses are not mutually exclusive, Nadolski's claim
that the legislature did not envision successive prosecutions under these
statutes is drawn into question.
In addition, once the
"same elements" test is satisfied, as in this case, there is a
presumption that the legislature intended to permit prosecution under each
statute. State v. Johnson,
178 Wis.2d 42, 49-50, 503 N.W.2d 575, 577 (Ct. App. 1993). This presumption can be overcome only by a
clear indication of legislative intent to the contrary. Id. The fact that § 943.23(3) was designed to address a gap in the
former law does not indicate a clear legislative intent to the contrary. Because neither offense is a lesser included
one of the other, we are compelled to conclude that the legislature intended
prosecutions under both statutes even though the offenses arise from the same
fact situation. Accordingly, we affirm
the order.
By the Court.—Order
affirmed.
Not recommended for
publication in the official reports.