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SUPREME COURT OF WISCONSIN

Case No.: 95-0314-CR

Complete Title

of Case: State of Wisconsin,

Plaintiff-Respondent,

v.

Larry R. Dowe,

Defendant-Appellant-Petitioner,

_______________________________________

REVIEW OF A DECISION OF THE COURT OF APPEALS

Reported at: 197 Wis. 2d 848, 541 N.W.2d 218

(Ct. App. 1995)

PUBLISHED

Opinion Filed: January 24, 1997

Submitted on Briefs:

Oral Argument: September 10, 1996

Source of APPEAL

COURT: Circuit

COUNTY: Waukesha

JUDGE: Marianne E. Becker

JUSTICES:

Concurred:

Dissented:

Not Participating:

ATTORNEYS: For the defendant-appellant-petitioner there were briefs and oral argument by Bryan J. Borman, assistant state public defender.

For the plaintiff-respondent the cause was argued by Stephen W. Kleinmaier, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

Amicus curiae brief was filed by Robert R. Henak and Shellow, Shellow & Glynn, S.C., Milwaukee for the Wisconsin Association of Criminal Defense Lawyers.

NOTICE

This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.

No. 95-0314-CR STATE OF WISCONSIN :	IN SUPREME COURT
State of Wisconsin, Plaintiff-Respondent, v. Larry R. Dowe, Defendant-Appellant-Petitioner.	FILED JAN 24, 1997 Marilyn L. Graves Clerk of Supreme Court Madison, WI

REVIEW of a decision of the Court of Appeals. Reversed and cause remanded.

¶ 1 ANN WALSH BRADLEY, J. This case is before the court on a petition for review filed by the defendant, Larry R. Dowe. The defendant seeks review of a court of appeals' decision⁽¹⁾ affirming a non-final order of the circuit court for Waukesha County, Marianne E. Becker, Judge, denying his motion to dismiss. The defendant argues that because possession of marijuana with intent to deliver⁽²⁾ is a lesser-included offense of being a dealer in possession of marijuana without a tax stamp,⁽³⁾ the State's act of charging him with both offenses constitutes double jeopardy.

¶ 2 State v. Hall, No. 94-2848-CR (S. Ct. Jan. 24, 1997), this court held that the drug tax stamp statute is unconstitutional. Thus, we do not reach the double jeopardy issue presented in this case, because the defendant cannot be prosecuted for being a dealer in possession of marijuana without a tax stamp. Instead, we reverse and remand to the circuit court for further proceedings on the charge of possession of marijuana with intent to deliver and with directions to dismiss with prejudice the drug tax stamp charge.

By the Court.--Reversed and cause remanded with directions.

¹ State v. Dowe, 197 Wis. 2d 848, 541 N.W.2d 218 (1995)

² Wis. Stat. § 161.41(1m)(h)1 (1991-92).

³ Wis. Stat. § 139.95(2) (1991-92).