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State v. Canon2/21/2001
REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 230 Wis. 2d 512, 602 N.W.2d 316 (Ct. App. 1999-Published)
Oral Argument: September 7, 2000
Taylor JUDGE: Douglas T. Fox
JUSTICES Dissented: ABRAHAMSON, C.J., dissents (opinion filed).
BRADLEY, J., joins dissent. BABLITCH, J., dissents (opinion filed).
BRADLEY, J., joins dissent. Not Participating:
REVIEW of a decision of the Court of Appeals. Reversed and cause remanded.
. The question presented in this case is whether the doctrine of issue preclusion bars the State from prosecuting a defendant under Wis. Stat. § 946.31(1)(a) (1997-98) for allegedly committing perjury at a criminal trial where the defendant was tried and acquitted on a single issue, but where the State claims to have discovered new evidence suggesting that the defendant falsely testified regarding that issue. We conclude that it does not.
. The State charged the defendant, Philip M. Canon (Canon), with perjury under Wis. Stat. § 946.31(1)(a) for lying at his criminal traffic trial on the issue of whether he was driving his pickup truck immediately prior to being arrested for drunk driving . Canon moved to dismiss the complaint on the grounds of "collateral estoppel," or issue preclusion, and the Circuit Court for Taylor County, Judge Douglas T. Fox, presiding, granted Canon's motion. The court of appeals, in a split decision, affirmed the order of the circuit court.
I.
. The facts are undisputed for the purposes of this review. The State charged Canon with intentionally making a false statement under oath at his criminal traffic trial for operating a vehicle while intoxicated. That criminal traffic trial in March of 1998 arose from an incident on July 4, 1996, when Canon and his companion, Cary S. Pergande, were travelling through Taylor County in Canon's pickup truck and they stopped to urinate alongside the road. A Taylor County police officer approached the two men to inquire whether they were having difficulty with Canon's truck. After talking with them, the officer concluded that Canon had been drinking and driving. As a result, the State charged Canon with operating a vehicle while intoxicated, operating after revocation, and driving with a prohibited blood alcohol level. At the subsequent criminal traffic trial, the sole issue was whether Canon had been the driver of the truck. Canon testified that he had not been driving his pickup truck, implicating Pergande instead. The jury acquitted Canon of all charges.
. One month after the trial, a man named Antonio Que Sada sent a letter to the Taylor County authorities alleging that Canon had "boast about their recent trip up north" and that Canon told him that he, not Pergande, had been driving his truck at the time. The State then filed the present complaint charging Canon with perjury. Canon countered with a motion to dismiss, contending that the charge was barred by issue preclusion. The circuit court reasoned that because the sole contested issue at the criminal traffic trial was whether Canon had been driving and the acquittal by the jury established beyond a reasonable doubt that Canon had not been driving, the State was barred by Ashe v. Swenson, 397 U.S. 436 (1970), from charging Canon with lying about whether he had been driving his truck. The circuit court acknowledged that in Ashe, the United States Supreme Court recognized the doctrine of issue preclusion as one of the protections in the Double Jeopardy Clause, which prevents the State from trying a defendant twice for the same offense. Id. at 443. Therefore, the circuit court granted Canon's motion to dismiss the criminal c
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