The Milwaukee County District Attorney's office saw a felon in possession of a firearm case slip away in 2014 when Joshua Java Berry's lawyer discovered that Berry was not a convicted felon.
And so,unable to use a 10-year-old felony conviction in its pursuit of Berry, as it originally planned to do, the DA's office turned to a case almost 20 years old -- Berry's adjudication as a delinquent when he was 13 or 14 -- and charged him with being an adjudicated delinquent in possession of a firearm.
Berry is now 35.
Both "in possession" charges are part of the same state statute and carry penalties of fines up to $50,000 or imprisonment of up to 15 years.
Berry in 2014 was a passenger in a car involved in a traffic stop by police. He was arrested after telling officers that he had a gun and a Florida concealed carry permit on him.
The DA's office first was going to use Berry's 2004 conviction for felony obstructing an officer to nail him for the felon-in-possession. It looked like an easy win. After the 2014 arrest, Berry conceded that he had been convicted of the 2004 felony charge; Wisconsin Circuit Court Access records showed the felony conviction, as did certified court records and the judgment of conviction.
Berry's defense in his felon-in-possession trial was simply that he believed his Florida concealed carry permit allowed him to carry a gun in Wisconsin, despite his conviction.
Milwaukee County Circuit Judge Carolina Stark found Berry guilty of the felon-in-possession charge.
But wait. It turns out Berry wasn't a convicted felon. All those records and Berry's memory were wrong. Berry in 2004 actually was convicted of a misdemeanor.
Whoops. On Oct. 10, 2014, McAdams vacated the felon-in-possession conviction and dismissed the case with prejudice.
All done? Of course not.
Three days later, the DA's office came back with a new charge based on Berry's 1995 felony-level adjudication as a juvenile delinquent.
The district attorney's office reached back well over half of Berry's lifetime (his birth date is April 27, 1981) to bring the charge.
Berry appealed while the case was still pending, arguing that trying him again would amount to double jeopardy, but a District 1 Court of Appeals panel on Tuesday disagreed.
"This new charge is different in law from the previously dismissed charge," Appeals Judge William W. Brash III wrote in an opinion joined by Appeals Judges Kitty K. Brennan and Patricia S. Curley. "Accordingly, we conclude that the current charge ... does not violate Berry’s constitutional right to be free from double jeopardy."
The case is not over. Berry's now 21-year-old crime, committed as a child, may yet play a big part in sending him to prison.
Meanwhile, everyone involved in the case knows that the court records saying that Berry was found guilty of a felony in 2004 are wrong. They have known that since August 2014, when Berry's lawyer, Scott F. Anderson, told them.
So why, more than 1-1/2 years later, does CCAP still show this?
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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