Robbery convictions OK under double jeopardy.

• Date: 24 April 2002
• Author: Ziemer, David

Byline: David Ziemer

The "double jeopardy statute," sec. 939.71, does not bar a prosecution for armed robbery, even though the same conduct supported a federal conviction for aggravated bank robbery, the Wisconsin Court of Appeals held on April 16.

Like Father, Like Son

On Oct. 11, 1999, Douglas J. Lasky and his father, Dennis, robbed the First State Bank in Cecil. According to the criminal complaint, they entered the bank wearing masks and carrying guns.

During the robbery, Dennis hit one of the tellers on the head with a gun. The two men took more than $70,000 in cash from the bank.

Double Trouble

Both were arrested, and Douglas Lasky was charged in both federal and state courts. In federal court, he was charged with aggravated bank robbery, pursuant to 18 U.S.C. 2113(a) and (d), pleaded guilty, and was sentenced to 78 months in prison.

In state court, Lasky was charged with armed robbery, theft from a person, and battery, all as party to a crime. Lasky moved to dismiss the armed robbery charge on grounds that his federal conviction for the same conduct barred prosecution under sec. 939.71.

The statute provides, "If an act forms the basis for a crime punishable under more than one statutory provision of this state or under a statutory provision of this state and the laws of another jurisdiction, a conviction or acquittal on the merits under one provision bars a subsequent prosecution under the other provision unless each provision requires proof of a fact for conviction which the other does not require."

Shawano County Circuit Court Thomas G. Grover denied his motion, concluding that the prosecution was not barred because each charge contained an element that was not an element of the other.

Grover found that the state crime required proof of specific intent to steal, while the federal crime required only general intent. Likewise, only the federal crime required that the crime victim be a federally-insured financial institution.

Lasky ultimately pleaded no contest to armed robbery and battery, and the State dismissed the charge of theft from a person. Lasky was sentenced to 15 years in prison for the armed robbery, consecutive to his 78-month federal sentence, and one year in prison for the battery, concurrent with the armed robbery sentence.

Lasky appealed the denial of his sec. 939.71 motion, but the Court of Appeals affirmed in a decision by Judge Thomas Cane.

No Waiver

The Court first held that the guilty-plea-waiver rule does not bar...