on Briefs March 1, 2016
from an order of the circuit court for Milwaukee County:
THOMAS J. McADAMS, Judge. Cir. Ct. No. 2014CF4520.
behalf of the defendant-appellant, the cause was submitted on
the brief of Scott F. Anderson of Scott F. Anderson Law
Office of Milwaukee.
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.
Curley, P.J., Brennan and Brash, JJ.
[¶1] Joshua Java Berry appeals a non-final
order denying his motion to dismiss. 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). We disagree and affirm.
[¶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
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 ...