State v. Gordon

LOUIS J. CECI, J.

(dissenting.) Because I believe the majority has misconstrued the clear expression of *147legislative intent to authorize multiple punishments for the violation of both secs. 940.31 and 940.02(2), Stats., I must dissent.

It is unnecessary to restate the facts, since this appeal concerns only an interpretation of the statutes involved. The trial court found that the victim’s death was a natural and probable consequence of the commission of the kidnapping by the defendant, contrary to secs. 940.31 and 940.02(2), Stats.1 The court imposed a sentence of fifteen years for the kidnapping and a consecutive sentence of fifteen years for the murder. The defendant claims she was twice put in jeopardy, in violation of the Fifth and Fourteenth Amendments of the United States Constitution and art. I, sec. 8 of the Wisconsin Constitution, *148because kidnapping is a lesser included offense of felony murder. Section 940.02 (2), Stats.

The United States Supreme Court has stated that the guarantee against double jeopardy does not prohibit the imposition of sentences for both an offense and its lesser included offense if the legislature has authorized the imposition of such sentences. Albernaz v. United States, 450 U.S. 333, 340, 344 (1981).

The general rule that one is not to be convicted of and sentenced for both an offense and its lesser included offense does not apply if the legislature has clearly indicated a contrary intent. The legislative history of sec. 940.02(2), Stats., indicates that the legislature intended that one could be convicted of and sentenced for both felony murder and the underlying felony (in this case, kidnapping). The penalty structure for felony murder has changed several times in the past thirty years.

In 1977, substantial revisions were made in the penalty structure of the criminal code. At that time, the most recent attempt was made to repeal the felony murder statute concerned herein. Senate Bill 14, section 28. The note and explanation stated:

“Present law already permits the sentencing of offenders on multiple counts for different crimes arising from the same act. For example, a person committing homicide while committing a robbery can be sentenced to concurrent or consecutive terms for both robbery and homicide. Therefore, the third-degree murder statute is unnecessary.” Senate Bill 14, section 28 (1977).

That a defendant can be sentenced for both a homicide and the underlying felony is clear from these notes of the drafters of Senate Bill 14. Prior to enactment, a new subsection was added, making felony murder a type of second-degree murder. Assembly Substitute Amendment 1 to Senate Bill 14, section 6. That bill did not include a note explaining the amendment. Id. The final statute is consistent with the sentencing structure discussed in the *149note to Senate Bill 14, section 28.

If the majority is correct in its interpretation, then one who causes the death of another in the course of committing another class B felony would be exposed to only the maximum sentence for the underlying felony. As the trial court correctly noted, that would mean that one who has already committed a class B felony would have no reason to be concerned about the victim's life or safety. Clearly, the legislature did not intend such an absurd result.

The opinion of the United States Supreme Court on this question was clearly expressed in the recent decision of Missouri v. Hunter:

“Our analysis and reasoning in Whalen and Albemaz lead inescapably to the conclusion that simply because two criminal statutes may be construed to proscribe the same conduct under the Bloekburger test does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes. The rule of statutory construction noted in Whalen is not a constitutional rule requiring courts to negate clearly expressed legislative intent. . . .
“Where, as here, a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the “same” conduct under Bloekburger, a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.” Missouri v. Hunter, 51 U.S..L.W. 4093, 4096 (Jan. 19, 1983).

I believe this court should follow the guidelines set forth above. I believe that the legislature, not this court, should prescribe the scope of the punishment for criminal offenses. I would affirm the trial court.

I am authorized to state that JUSTICE ROLAND B. DAY and JUSTICE WILLIAM G. CALLOW join in this dissenting opinion.

Sections 940.31 and 940.02(2), Stats., provide as follows:

“940.31 Kidnapping. (1) Whoever does any of the following is guilty of a Class B felony:
“(a) By force or threat of imminent force carries another from one place to another without his consent and with intent to cause him to be secretly confined or imprisoned or to be carried out of this state or to be held to service against his will; or
“(b) By force or threat of imminent force seizes or confines another without his consent and with intent to cause him to be secretly confined or imprisoned or to be carried out of this state or to be held to service against his will; or
“(c) By deceit induces another to go from one place to another with intent to cause him to be secretly confined or imprisoned or to be carried out of this state or to be held to service against his will.
“(2) Whoever violates sub. (1) with intent to cause another to transfer property in order to obtain the release of the victim is guilty of a Class A felony; but if the victim is released without permanent physical injury prior to the time the first witness is sworn at the trial the defendant is guilty of a Class B felony.”
“940.02 Second-degree murder. Whoever causes the death of another human being under either of the following circumstances is guilty of a Class B felony:
“(2) As a natural and probable consequence of the commission of or attempt to commit a felony.”