The double jeopardy implications are addressed more fully infra ¶¶ 30-31 and 143.State v. Copening, 103 Wis. 2d 564, 576, 309 N.W.2d 850 (Ct. App. 1981).State v. Williams, 47 Wis. 2d 242, 252, 177 N.W.2d 611 (1970).
¶ 18 “A defendant's right to be informed of the nature and cause of the accusations is guaranteed by the sixth amendment to the federal constitution and Art. I, [sec.] 7 of the Wisconsin Constitution.” State v. Copening, 103 Wis.2d 564, 573, 309 N.W.2d 850 (Ct.App.1981). There are two considerations in determining whether a complaint meets that standard: “(1) whether the accusation is such that the defendant can determine whether it states an offense to which he is able to plead and prepare a defense, and (2) whether conviction or acquittal is a bar to another prosecution for the same offense.
“A defendant has the benefit of both the factual allegations required in the complaint and the final statutory charges alleged in the information.” State v. Copening, 103 Wis.2d 564, 576, 309 N.W.2d 850 (Ct.App.1981). However, “[t]he factual allegations relied on by the state which satisfy the elements of the crime are more likely found in the complaint.
“The information is the charging document to which a defendant must enter a plea.” State v. Copening, 103 Wis.2d 564, 576, 309 N.W.2d 850 (Ct.App.1981) (citing Pillsbury v. State, 31 Wis.2d 87, 93, 142 N.W.2d 187 (1966)). “A defendant has the benefit of both the factual allegations required in the complaint and the final statutory charges alleged in the information.”
A complaint is duplicitous when it joins two or more separate offenses in a single count. State v. Copening, 103 Wis.2d 564, 572, 309 N.W.2d 850 (Ct.App.1981). “A duplicitous charge is defective because the jury may find the defendant guilty without the state proving each element of the offense beyond a reasonable doubt.” Id.
In the circumstances before us, it is not inappropriate to aggregate the discrete charges to constitute acts of theft of $2500 or more. ¶ 24 Our position is supported by State v. Copening, 103 Wis.2d 564, 572–73, 309 N.W.2d 850 (Ct.App.1981), in which we held that multiple acts of check kiting could be considered to be one criminal offense because they were all part of the same scheme. In Copening, we concluded that a single count of theft by fraud could be brought even though the check kiting took place over a period of time and even though it involved multiple victims.
Sec. 971.31(5) (c), Stats. Failure to object to a defect in the institution of a criminal proceeding constitutes a waiver. State v. Copening, 103 Wis.2d 564, 570, 309 N.W.2d 850, 853 (Ct.App. 1981). Defendant waived his right to a preliminary hearing and did not, at any time during the course of the proceedings against him, make a motion challenging the complaint or evidence against him. He raises this issue for the first time on appeal. His failure to present his argument to the trial court precludes appellate review.
¶ 85. A probable cause hearing under Chapter 980 is similar to a preliminary examination in a felony case which is designed to prevent "hasty, improvident or malicious prosecution" and "to discover whether there is substantial basis for bringing the prosecution and further denying the accused his right to liberty." State v. Copening, 103 Wis.2d 564, 578, 309 N.W.2d 850 (Ct.App. 1981). A probable cause hearing is also similar to a probable cause hearing for an involuntary mental commitment under Chapter 51, and we note that the rules governing preliminary examinations apply in Chapter 51 hearings.
The Hawpetoss court, upon which the West court relied, in turn relied on Nutley, 24 Wis.2d 527. Two other court of appeals § 939.31 conspiracy cases recite the need for intent on the part of more than one conspirator, based on the language in Nutley but without relying on that requirement for their holdings. See State v. Copening, 103 Wis.2d 564, 579, 309 N.W.2d 850 (Ct.App. 1981) (holding that probable cause existed to charge the defendant with conspiracy) and State v. Blalock, 150 Wis.2d 688, 704, 422 N.W.2d 514 (Ct.App. 1989) (holding that co-conspirator's statements were admissible because his acts were in furtherance of the conspiracy). We do not read either of these decisions as inconsistent with our conclusion that Wis. Stat. § 939.31 encompasses the unilateral approach.
Bailey has been cited and approved of by this court as well as the court of appeals on numerous occasions. See, e.g., Hooper, 101 Wis.2d at 535-36; Wittke v. State ex rel. Smith, 80 Wis.2d 332, 352, 259 N.W.2d 515 (1977); State v. Copening, 103 Wis.2d 564, 580, 309 N.W.2d 850 (Ct.App. 1981); State v. Johnson, 121 Wis.2d 237, 251-52, 358 N.W.2d 824 (Ct. App. 1984). Bailey holds there is no requirement in sec. 971.01(1), Stats., that there must be direct evidence, much less sufficient evidence to support a probable cause finding, presented at the preliminary examination for each charge in the information. If the legislature had intended a probable cause finding for each count in an information, sec. 971.01(1) would expressly make that requirement, or sec. 970.03(7), Stats., would require the circuit court to state the specific felony it believed the defendant probably committed and provide only that felony could be charged in the information.