Opinion
Case No. 97-0746-CR.
Opinion Released: September 23, 1997. Opinion Filed: September 23, 1997. This opinion will not be published. See RULE 809.23(1)(b)5, STATS.
APPEAL from a judgment of the circuit court for Washburn County: JAMES H. TAYLOR, Judge. Affirmed.
Before Cane, P.J., Myse and Hoover, JJ.
Richard Studt appeals his convictions for aggravated battery and second-degree recklessly endangering safety. The charges arose out of a fist fight in which Studt stabbed the victim in the arm with a four-inch fillet knife. On appeal, Studt argues that the two charges were multiplicitous, violating the double jeopardy clause by charging him twice for what amounted to one criminal wrongdoing, unified in terms of time, place, manner, condition, degree, and substance. Studt asks us to go beyond the longstanding "elements only/same elements" double jeopardy standards from Blockburger v. United States , 284 U.S. 299 (1932), and apply the seemingly more flexible "multifactored" and "fundamental fairness" variants of the Blockburger standards we have used in decisions like Harrell v. State , 88 Wis.2d 546, 277 N.W.2d 462 (Ct.App. 1979), and State v. Hirsch , 140 Wis.2d 468, 410 N.W.2d 638 (Ct.App. 1987). The Wisconsin Supreme Court has adopted the Blockburger "elements only" test for resolving double jeopardy challenges. Under this test, the two crimes of which Studt was convicted are discrete. We therefore conclude that Studt's prosecution did not violate double jeopardy, and we affirm his convictions.
We note that the legislature may allow multiple convictions and punishments for the same criminal act without running afoul of the double jeopardy clause, provided that the State pursues them in a single prosecution and the legislature intended multiple convictions. See State v. Sauceda , 168 Wis.2d 486, 492-93, 485 N.W.2d 1, 3-4 (1992). In fact, this is sometimes true even if they fail the Blockburger "same elements" test; the legislature may specifically authorize cumulative, coincident "same elements" prosecutions and convictions. See Missouri v. Hunter , 459 U.S. 359, 368-69 (1983); see also United States v. Halper , 490 U.S. 435, 450-51 (1989); United States v. Baker , 63 F.3d 1478, 1494 (9th Cir. 1995); United States v. Martinez , 49 F.3d 1398, 1402 (9th Cir. 1995); United States v. Torres , 28 F.3d 1463, 1464 (7th Cir. 1994); United States v. Boatner , 966 F.2d 1575, 1581 n. 9 (11th Cir. 1992). In that event, the sole question is the legislature's intent. See Hunter , 459 U.S. at 368-69.
Here, we have already twice found no double jeopardy problem with the coincident prosecutions and convictions of the aggravated battery and reckless injury/endangerment species of crimes. See State v. Eastman , 185 Wis.2d 405, 518 N.W.2d 257 (Ct.App. 1994); State v. Kanarowski , 170 Wis.2d 504, 489 N.W.2d 660 (Ct.App. 1992). These decisions applied the longstanding Blockburger "same elements" analysis to coincident convictions of these crimes and found such crimes to have different elements. This ends our inquiry in Studt's case, regardless of how his coincident convictions under these statutes might fare under Harrell's "multifactored" and Hirsch's "fundamental fairness" standards. At this point, at least in the realm of coincident prosecutions of aggravated battery and reckless injury/endangerment species of crimes, the Eastman and Kanarowski decisions control, and the Harrell and Hirsch doctrines are nonbinding. In short, Studt's coincident convictions are constitutional under the double jeopardy clause.
By the Court — Judgment affirmed.