Wisconsin Statutes
Wis. Stat. § 939.71 (2026)
Limitation on the number of convictions
✓ current as of July 2026
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939.71939.71 Limitation on the number of convictions. 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.
939.71 AnnotationMisdemeanor battery is an included crime of felony battery, but they are not the same offense. Acquittal on felony battery charges does not prevent subsequent prosecution for misdemeanor battery. State v. Vassos, 218 Wis. 2d 330, 579 N.W.2d 35 (1998), 97-0938.
939.71 AnnotationThis section does not bar a subsequent prosecution for an offense arising from the same acts that could not have been charged at the time of the first prosecution and thus did not bar prosecuting a defendant for first-degree intentional homicide for the same act which led to battery convictions when the victim died after having been in a coma for four years. State v. McKee, 2002 WI App 148, 256 Wis. 2d 547, 648 N.W.2d 34, 01-1966.
939.71 AnnotationUnder this section, a subsequent prosecution is not prohibited if each provision requires proof of a fact for conviction that the other does not require, even if the same conduct was involved in the two prosecutions. In contrast, s. 961.45 provides that if a violation of ch. 961 is a violation of a federal law or the law of another state, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this state. The difference in the two statutes does not violate equal protection. State v. Swinson, 2003 WI App 45, 261 Wis. 2d 633, 660 N.W.2d 12, 02-0395.
939.71 AnnotationThis section substantially enacts the Blockburger, 284 U.S. 299 (1932), test for determining whether two offenses are the same offense for double jeopardy purposes. The test for determining whether there are two offenses or only one is whether each provision requires proof of a fact that the other does not. State v. Triebold, 2021 WI App 13, 396 Wis. 2d 176, 955 N.W.2d 415, 19-1209.
939.71 AnnotationThis section did not prohibit the defendant’s convictions for failure to update his address information in both Minnesota and Wisconsin because the states’ respective sex offender registration statutes required proof of different facts. Criminal liability under either statute was predicated upon a failure to comply with the applicable registration requirements of the particular state—here, the failure to update address information to the relevant state agency. The defendant was not prosecuted in Wisconsin with failing to provide his new address to Minnesota authorities. Rather, the defendant was separately required under this state’s law to provide his updated address information to the Wisconsin Department of Corrections under s. 301.45 (4). State v. Triebold, 2021 WI App 13, 396 Wis. 2d 176, 955 N.W.2d 415, 19-1209.
Notes of Decisions
Cited in 27
cases (2 in the last 5 years), 1967–2022 · leading case: State v. Vassos, 579 N.W.2d 35 (Wis. 1998).
State v. Vassos, 579 N.W.2d 35 (Wis. 1998). “, do double jeopardy protections bar a successive prosecution for misdemeanor battery, § 940.”
State v. Hansen, 2001 WI 53 (Wis. 2001). “Wis. Stat. § 939.71 . The statutes differ of course in that § 961.”
State v. Lasky, 2002 WI App 126 (Wis. Ct. App. 2002). “Lasky, who pled no contest, argues that his convictions should be dismissed on two bases: (1) his prosecution for armed robbery was prohibited by Wis. Stat. § 939.71 1 because he had been convicted of the same crime in federal court; and (2) prosecuting Lasky in state court…”
State v. Swinson, 2003 WI App 45 (Wis. Ct. App. 2003). “In particular, Swinson contends that: *658 [The] application of Wis. Stat. § 939.71 , after the Supreme Court's decision in [State v.”
State v. McKee, 2002 WI App 148 (Wis. Ct. App. 2002). “McKee claims the trial court erred in concluding that Wis. Stat. § 939.71 (1999-2000) 1 does not bar the State from now prosecuting him for first-degree intentional homicide for the same act which led to his previous convictions.”
State v. Holt, 382 N.W.2d 679 (Wis. Ct. App. 1985). “He claims that the sexual assault prosecution was barred by sec. 939.71, Stats., that the circuit court erroneously failed to instruct the jury on second-degree murder and committed various additional evidentiary and other errors and that he was entitled to credit against his…”
State v. Rabe, 291 N.W.2d 809 (Wis. 1980). “The issue in these cases was whether "there was a sufficient break in conduct and time between the acts to constitute separate and distinct [criminal] acts.”
State v. Gordon, 330 N.W.2d 564 (Wis. 1983). “Sec. 939.71, Stats. 1979-80, proscribes two prosecutions for two offenses arising out of the same criminal act unless each statute setting forth the substantive crime "requires proof of a fact for conviction which the other does not require.”
State v. Stevens, 367 N.W.2d 788 (Wis. 1985). “" [10] Section 939.71, Stats. 1981-82: 939.71. Limitation on the number of convictions.”
State v. Simpson, 347 N.W.2d 920 (Wis. Ct. App. 1984). “" Section 939.71, [4] "limits the number of *462 convictions for that act to one, unless a conviction requires proof of a fact that is not required to support the other convictions.”
State v. Kramsvogel, 369 N.W.2d 145 (Wis. 1985). “This rule has been codified in sec. 939.71, Stats., which provides, "939.”
State v. Church, 589 N.W.2d 638 (Wis. Ct. App. 1998). “299 (1932), has been codified in § 939.71, STATS., which provides, in relevant part: If an act forms the basis for a crime punishable under more than one statutory provision of this state .”
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