July 29, 2025 – The circuit court’s dismissal of a second conviction, which it reinstated after the Wisconsin Court of Appeals reversed on the remaining guilty verdict, did not violate the defendants’ rights, the Wisconsin Supreme Court agreed in State v. Carl Lee McAdory, 2025 WI 30.

Five justices had one justification for upholding the conviction reinstatement while two others proposed to reverse precedent they said was inconsistent with the statute’s plain meaning.

“[W]e hold that the circuit court was permitted to reinstate the previously dismissed … charge and guilty verdict on remand after McAdory’s companion conviction … was overturned on appeal,” wrote Justice Rebecca Frank Dallet in the Opinion of the Court. “The circuit court had implicit authority under § 346.63(1)(c) to do so.”

Chief Justice Jill J. Karofsky and Justices Ann Walsh Bradley, Brian Hagedorn, and Janet C. Protasiewicz joined the opinion.

Justice Annette Kingsland Ziegler, joined by Justice Rebecca Grassl Bradley, concurred in the judgment but argued that State v. Bohacheff, 114 Wis. 2d 402 (1983) and progeny Town of Menasha v. Bastian, 178 Wis. 2d 191 (Ct. App. 1993) contradicted Wis. Stat. section 346.63(1)(c).

“As the statute provides, however, ‘there shall be a single conviction for purposes of sentencing and for purposes of counting convictions … .’ Bohacheff and Bastian are inconsistent with the statute’s plain language,” the concurrence summarized.

Guilty, Reversed, Reinstated

A jury found McAdory guilty of both operating a vehicle while under the influence of a controlled substance as an eighth offense (OWI) and operating a motor vehicle with a detectable amount of a restricted controlled substance (RCS) as an eighth offense.

Before sentencing, the State requested that the circuit court dismiss the RCS verdict as “duplicative” under Wis. Stat. section 346.63(1)(c).

McAdory succeeded at the Court of Appeals in overturning the OWI conviction that did not affect the dismissed RCS verdict. The Court of Appeals reversed and remanded to the circuit court “for a new trial” on the OWI offense.

The State instead asked the circuit court to reinstate the “RCS charge and guilty verdict, enter a judgment of conviction, and dismiss the OWI charge.” The circuit court granted the motion.

McAdory argued on appeal that the circuit court lacked authority to reinstate the verdict, the circuit court failed to follow the Court of Appeals’ mandate, the State forfeited reinstatement by not raising the issue in the earlier appeal, and the reinstatement amounted to unconstitutional double jeopardy.

The Court of Appeals rejected all four arguments, and McAdory raised the same claims before the Supreme Court.

‘Single Conviction’

The Supreme Court focused on McAdory’s first contention. Section 346.63(1)(c) authorizes a single prosecution of both an OWI and RCS charge through trial “for acts arising out of the same incident or occurrence.”

But if found guilty of more than one of the charges, the statute provides “there shall be a single conviction for purposes of sentencing and for purposes of counting convictions.”

To fix a “first gap” in the statute, Bastian requires a single sentence and dismissal of the other sentence, based on analysis of a similar statute in Bohacheff, but those cases don’t affect the validity of the reinstatement, the opinion of the court explained.

A “second gap” in the statute is at issue here, those five justices agreed. What does a circuit court “do with previously dismissed charges and guilty verdicts if a conviction on one of the offenses enumerated” in the statute “is overturned on appeal”?

“We conclude that § 346.63(1) implicitly authorized the circuit court to reinstate the previously dismissed RCS charge and guilty verdict,” Justice Dallet wrote.

By reinstating the verdict, the circuit court “implemented that statutory structure in a way that gave effect to its central premise, namely that guilty verdicts for the enumerated offenses are fundamentally interchangeable for purposes of” the statute.

Reinstatement “ensured that a statute designed to result in ‘a single conviction for purposes of sentencing and for purposes of counting convictions’ was not transformed into one that results in no conviction at all,” Justice Dallet wrote.

Reverse Bohacheff and Bastian

The concurrence focused on certain phrases in the statute, specifically that “there shall be a single conviction for purposes of sentencing and for purposes of counting convictions.”

“Nothing in the statute states or implies that the circuit court must dismiss all but one of the charges and guilty verdicts,” the concurrence wrote, and “[t]his interpretation is reinforced by other statutes.”

Those statutes require that the circuit court shall enter a judgment of conviction when the jury finds the defendant guilty, Wis. Stat. section 972.13(1), and limits the State’s ability to seek dismissal under Wis. Stat. section 967.055(2)(a), the concurrence explained.

The latter statute states a legislative purpose “to encourage the vigorous prosecution” of OWI offenses, the concurrence quoted at length.

Bohacheff established the precedent, which the Court of Appeals “operationalized” in Bastian, the concurrence explained.

“In this case, when the State requested the circuit court to dismiss the RCS charge and guilty verdict at McAdory’s initial sentencing hearing, it was following Bohacheff and Bastian,” the concurrence said.

“As this case demonstrates, Bohacheff and Bastian must be overruled” because the former has unsound statutory analysis and the latter is premised on the former while contradicting Wis. Stat. section 346.63(1)(c), the concurrence said.

The statutorily correct answer in this case is that “the circuit court should have entered a judgment of conviction for both guilty verdicts,” the concurrence concluded on this issue.

‘Fares No Better’

McAdory’s other arguments took less time for both opinions to resolve, and the two agreed they do not result in reversal.

The State could not raise an issue about the dismissed RCS verdict on the previous appeal because it had nothing to do with the OWI conviction – the only conviction then in effect. The State’s request to dismiss the RCS conviction, in fact, gave it nothing adverse to challenge.

McAdory argued that the circuit court violated the Court of Appeals’ mandate by not going through with a retrial on the OWI charge after reversal.

“The court of appeals, however, considered these arguments and rejected them,” Justice Dallet wrote.

“We see no reason to disturb this conclusion given that the court of appeals is more than capable of interpreting its own mandates and is indeed better suited for that task than we are,” the opinion of the court concluded, and the concurrence agreed.

Finally, McAdory argued that reinstatement of the RCS guilty verdict resulted in unconstitutional double jeopardy in two ways: as a second prosecution of the same offense after conviction and as “multiple punishments for the same offense.”

But McAdory wasn’t prosecuted twice for RCS or for OWI. Had a new trial occurred for OWI, it wouldn’t be double jeopardy because the “second trial would have occurred as a result of the relief he sought in McAdory I.”

Similarly, the concurrence pointed out that “the circuit court reinstated a guilty verdict already rendered by a jury.”

This article was originally published on the State Bar of Wisconsin’s Wisbar Court Review blog, which covers case decisions and other developments in the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit. To contribute to this blog, contact Joe Forward.