​​Close Up Made From Over A Judge's Right Shoulder, Showing A Woman Judge In A Black Robe Gripping A Pen In Her Hands With Her Gavel At Her Right, And Two Lawyers Stadning In Front Of The Bench, Each Holding a Sheaf of PapersApril 19, 2024 – A circuit court’s dismissal of an OWI charge after conviction on a different charge under
Wis. Stat. section 346.63(1)(c) can be reversed, the Wisconsin Court of Appeals has ruled in

State v. McAdory
, 2023AP645 (April 11, 2024).​

​In August 2019, a jury convicted Carl McAdory in Rock County Circuit Court of operating a motor vehicle while under the influence of one or more controlled substances (OWI) and operating a motor vehicle with a restricted controlled substance (RCS). Both counts arose out of the same incident.

Based on the “single-conviction” provision in section 346.63(1)(c), the state requested that the circuit court enter a conviction and sentence McAdory on the OWI while dismissing the RCS count.

Section 346.63(1)(c) allows a prosecutor to pursue multiple counts for offenses under section 346.63(1).

However, section 346.63(1)(c) specifies that if a defendant is found guilty of multiple counts under section 346.63(1), “there shall be a single conviction for purpose of sentencing and for purposes of counting convictions.”

The circuit court granted the prosecutor’s request and sentenced McAdory on the OWI count and dismissed the RCS count.

>OWI Reversed on Appeal

McAdory appealed the OWI conviction; he argued that his due process rights were violated during the trial.

The Wisconsin Court of Appeals reversed McAdory’s conviction in

State v. McAdory
, 2021 WI App 89, 400 Wis. 2d 915, 968 N.W. 2d 770, and remanded the case for a new trial on the OWI count, without discussing the RCS conviction or the trial’s court dismissal of that conviction.

Re-open RCS?

On remittitur, the State asked the circuit court to do the following:

  • re-open the judgment of conviction;

  • dismiss the OWI count and restore the RCS count;

  • enter a conviction based on the RCS count; and

  • re-sentence McAdory on the RCS conviction.

McAdory argued that the circuit court lacked the authority to grant the state’s motion.

The circuit court granted the state’s motion. McAdory appealed.

Statute Not Ambiguous  

Writing for a three-judge panel, Judge Brian Blanchard concluded that: 1) section 346.63(1)(c) was unambiguous; and 2) nothing in the statute prohibited the circuit court from reinstating McAdory’s RCS conviction.

Jeff M. Brown
Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.

“The court’s actions accomplished the explicit purpose of the provision, which is to allow the finders of fact to determine guilt on any charged OWI, RCS, or [prohibited alcohol concentration] count based on the same incident, while barring multiple convictions or punishments for the same incident,” Judge Blanchard wrote.

Law Didn’t Require New OWI Trial

McAdory argued that based on the Court of Appeals decision in his prior appeal, the circuit court should have conducted a new trial on the OWI charge instead of reinstating the RCS count and entering a conviction on it.

But Judge Blanchard noted that nothing in that decision addressed motions that either the state or a defendant might file upon remittitur.

“We certainly did not direct that the circuit court was obligated to schedule a trial on the OWI count even if, as would come to pass, the State moved to dismiss the count,” Judge Blanchard wrote.

Blanchard explained that the circuit court had complied with section 808.08, which governs post-appeal proceedings.

“For this reason, it does not advance McAdory’s argument for him to cite law that requires circuit courts to act consistently with an appellate court’s ‘expressed or implied mandate,’” Judge Blanchard wrote.

‘For All Purposes’

McAdory also argued that under Wisconsin Supreme Court caselaw, the court’s dismissal of the RCS count was irreversible.

Specifically, McAdory cited the following sentence in
State v. Bohacheff, 114 Wis. 2d 402, 338 N.W. 2d 466 (1983): “We are persuaded that when [the single-conviction provision] is read with an understanding of the nature of the [prohibition on multiple convictions], it is evident that the legislature intended a prosecution under the facts set forth in this complaint to terminate with one conviction for all purposes.”

But Judge Blanchard concluded that McAdory’s argument lifted the phrase “for all purposes” out its context.

“The court’s use of the phrase ‘for all purposes’ suggest nothing about subsequent events in the same case before it has been litigated to completion,” Judge Blanchard wrote.

Protective Appeal Not Required

McAdory argued that the state forfeited its right to ask the circuit court to reinstate the RCS count by failing to file a protective appeal that addressed the issue.

McAdory cited Town of
Menasha v. Bastian, 178 Wis. 2d 191, 503 N.W. 2d 382 (Ct. App. 1983).

Bastian, a municipal court convicted a defendant on OWI but dismissed a count of driving with a prohibited alcohol concentration (PAC).

Bastian appealed to the circuit court. The circuit court ruled that both the OWI and PAC charges would be tried by a jury, even though the town hadn’t appealed the dismissal of the PAC count.

When the jury convicted Bastian on the PAC charge but acquitted him on the OWI charge, he appealed.

The Court of Appeals held that the circuit court lacked jurisdiction over the PAC charge because the town didn’t appeal the municipal court’s dismissal of the PAC charge.

Blanchard pointed out that in
Bastian, the PAC charge was dismissed with no adjudication of guilt, unlike McAdory’s RCS charge.

McAdory argued that the state should have argued in his prior appeal that the Court of Appeals should vacate the dismissal of the RCS charge, as an alternate ground for affirming his conviction.

But that argument was groundless, Blanchard concluded.

“McAdory does not direct us to any authority requiring the State to have made that appellate argument to avoid forfeiture of its ability to file its post-remittitur motions on in the circuit court,” Blanchard wrote.