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State v. Berry

Court of Appeals of Wisconsin

April 26, 2016

STATE OF WISCONSIN, PLAINTIFF-RESPONDENT,
v.
JOSHUA JAVA BERRY, DEFENDANT-APPELLANT

         Submitted on Briefs March 1, 2016 

          APPEAL from an order of the circuit court for Milwaukee County: THOMAS J. McADAMS, Judge. Cir. Ct. No. 2014CF4520.

         On behalf of the defendant-appellant, the cause was submitted on the brief of Scott F. Anderson of Scott F. Anderson Law Office of Milwaukee.

         On behalf of the plaintiff-respondent, the cause was submitted on the brief of Brad D. Schimel, attorney general, and Christine A. Remington, assistant attorney general.

         Before Curley, P.J., Brennan and Brash, JJ.

          OPINION

Page 803

          BRASH, J.

          [¶1] Joshua Java Berry appeals a non-final order denying his motion to dismiss.[1] Berry argues that because the circuit court previously dismissed a charge of possession of a firearm as a felon contrary to Wis. Stat. § 941.29(2)(a) (2013-14) with prejudice, his right to be free from double jeopardy was violated by denying his motion to dismiss a subsequent charge of possession of a firearm as someone who has been adjudicated delinquent contrary to § 941.29(2)(b).[2] We disagree and affirm.

         Background

          [¶2] On January 7, 2014, a Milwaukee police officer stopped a car in which Berry was a backseat passenger. Berry informed the officer that he had a State of Florida concealed carry permit. Berry also informed the officer that he was in possession of a firearm. Berry was subsequently taken into custody on an outstanding warrant.

          [¶3] Certified court records from Milwaukee County Circuit Court Case No. 2004CF205 indicated that Berry was convicted of a felony and was advised by the circuit court that as a convicted felon he may not possess any firearms. Based on these records, the State charged Berry with possession of a firearm by a felon

Page 804

contrary to Wis. Stat. § 941.29(2)(a) in Milwaukee County Circuit Court Case No. 2014CF90. Berry waived his right to a jury trial.

          [¶4] On August 18, 2014, Case No. 2014CF90 was tried to the circuit court. At the bench trial, Berry stipulated that on January 7, 2014, he possessed a firearm in Wisconsin. Berry further stipulated that he was convicted of a felony on July 20, 2004--a date prior to Berry's stipulated date of possession of a firearm--and that this conviction had not been reversed. As his defense, Berry testified that when he applied for his Florida concealed carry permit, he fully disclosed his criminal background, including his conviction in Case No. 2004CF205. Berry testified that he believed his Florida permit allowed him to possess a firearm in Wisconsin. Nevertheless, based on Berry's stipulations that he ...


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