Reinstatement is remedy for plea agreement that violates double jeopardy.

• Date: 06 February 2002

Byline: David Ziemer

When a defendant successfully challenges a conviction on double jeopardy grounds, but the conviction was entered pursuant to a plea agreement, the remedy in most cases will be to reverse the convictions, and reinstate the original information, the Wisconsin Supreme Court held on Jan. 29.

However, the court recognized that, in some instances, the proper remedy may be to vacate the infirm sentence and conviction, and leave the other conviction and sentence in place.

The Plea Bargain

On May 19, 1999, Robert S. Robinson severely injured Norman Elsinger, who was trying to break up a barroom brawl. Robinson was charged with one count of aggravated battery, a Class C felony, and one count of recklessly endangering safety, a Class D felony. The charges were issued pursuant to the repeat offender statute.

Combined, the two charges thus exposed Robinson to 27 years in prison. However, a plea agreement was entered into between Robinson and the State, reducing the aggravated battery charge to recklessly endangering safety, and eliminating the repeater provisions.

The result was to reduce Robinsons maximum exposure to 10 years. The State also agreed to recommend an imposed and stayed two-year prison sentence, probation, eight months in jail as a condition of probation, and restitution.

Winnebago County Circuit Court Judge Bruce Schmidt accepted pleas of no contest to the amended charges, and sentenced Robinson to consecutive five-year terms of imprisonment. Robinson then filed a postconviction motion, claiming that the two counts were identical in both fact and law, and thus violated the Double Jeopardy Clause.

Judge Schmidt denied the motion, ruling that Robinson waived his right to challenge the convictions by entering a guilty plea. Robinson appealed, and the case was...