“One Incident – One Sentence, Many Verdicts”:
State v. McAdory and the Revival Power of Wis. Stat. § 346.63(1)(c)

I. Introduction

State v. Carl Lee McAdory, 2025 WI 30, is the Wisconsin Supreme Court’s first comprehensive examination of what happens to companion drunk- / drug-driving verdicts after one of them is reversed on appeal. The decision addresses four interlocking questions:

  1. Does Wis. Stat. § 346.63(1)(c) give a circuit court authority to reinstate a companion guilty verdict that it had earlier dismissed at sentencing as “duplicative”?
  2. Did the State forfeit (or waive) its right to seek that reinstatement by staying silent during the first appeal?
  3. Did reinstatement violate the Court of Appeals’ mandate (“reverse and remand for a new OWI trial”) or deprive the circuit court of competency to proceed?
  4. Does the Double Jeopardy Clause bar revival of a previously dismissed verdict?

The majority—per Justice Dallet—answers all four in the State’s favour, creating a new procedural rule: when multiple § 346.63(1) counts are joined, a previously dismissed verdict may be revived and converted into the operative conviction if the verdict that originally supported the sentence is later overturned.

II. Summary of the Judgment

  • Authority to Reinstate — § 346.63(1)(c) “implicitly” authorises revival because the statute’s goal (“a single conviction for purposes of sentencing and counting”) would be frustrated if no conviction remained after reversal.
  • No Forfeiture — The State could not have cross-appealed the dismissal (it was not “adverse to the State”) and had no duty to preview reinstatement in its appellate brief.
  • Mandate Rule / Competency — The Court of Appeals’ earlier mandate did not expressly or implicitly forbid alternative dispositions on remand; therefore the circuit court retained full competency.
  • Double Jeopardy — Reinstatement of a guilty verdict does not constitute a “second prosecution”; it is simply the enforcement of the original jury finding.

Holding: Circuit courts may revive and enter judgment on a companion OWI/PAC/RCS verdict that was dismissed solely to comply with the “single conviction” language of § 346.63(1)(c), after the operative conviction is vacated on appeal.

III. Analysis

1. Precedents Cited and Their Influence

  1. Town of Menasha v. Bastian (Ct. App. 1993)
    – Established the long-standing “dismiss-extra-counts” practice: when multiple § 346.63(1) verdicts issue, the court sentences on one and dismisses the rest. In McAdory the majority declines to disturb Bastian, calling it irrelevant to the question of reinstatement. Justice Ziegler’s concurrence, however, declares Bastian “indefensible” and would overrule it.
  2. State v. Bohacheff (1983)
    – Addressed similar “single conviction” language in an earlier statute (§ 940.25). The concurrence brands it erroneous and urges overruling; the majority sidesteps the issue.
  3. State v. McAdory I, 2021 WI App 89
    – Vacated McAdory’s OWI conviction and remanded “for a new trial.” Whether that mandate barred reinstatement lay at the heart of the present appeal.
  4. United States v. Wilson, 420 U.S. 332 (1975);
    Rutledge v. United States, 230 F.3d 1041 (7th Cir. 2000)
    – Federal authority that reinstating a guilty verdict does not offend double jeopardy.
  5. Canonical double-jeopardy tests: Blockburger (same-elements), Pearce, Brown, Burks.

2. The Court’s Legal Reasoning

a) Textual “Silence” and Implicit Power

Section 346.63(1)(c) is explicit about two matters—joinder and the requirement of a single conviction for limited purposes—but says nothing about procedure when one conviction disappears on appeal. The majority treats this silence as an invitation, not a prohibition. Because the statute assumes only one conviction will remain, the court must have inherent or implicit power to select which conviction survives post-appeal; otherwise the statutory design collapses.

b) Practicality and Legislative Purpose

The court adverts to § 967.055(1)(a)’s statement that the legislature wants “vigorous prosecution” of impaired-driving offences. Letting a defendant walk away unconvicted because of appellate reversal would undermine that goal. Reinstatement best aligns with legislative intent.

c) Forfeiture Analysis

• Cross-appeal: Only “adverse” orders are appealable for the State (§ 974.05(1)(a)). The State itself requested dismissal; hence no adversity.
• Appellate briefing: Raising reinstatement on appeal would not have “sustained” the OWI judgment because OWI and RCS are separate offences. Therefore no obligation under Alles or similar cases.

d) Mandate Rule / Competency

Appellate mandates bind lower courts only as to the specific issues decided. The Court of Appeals, faced with its own earlier mandate, declared that nothing in McAdory I forbade alternative motions on remand. The Supreme Court defers to that self-interpretation.

e) Double Jeopardy

  • Reinstatement is not a “second prosecution”—the same jury’s verdict is merely revived.
  • No “multiple punishments”—only one sentence is ever in place at a time.
  • The hypothetical risk of a second OWI trial is immaterial because the State actually dismissed the OWI count; even if it had not, a defendant may be retried after successful appeal (Burks exception not triggered here because reversal was for instructional error, not insufficiency).

3. Likely Impact of the Decision

  1. Procedural Roadmap
    Prosecutors now have clear authority to move for reinstatement of dismissed § 346.63(1) verdicts; circuit courts have discretion to grant such motions.
  2. Appellate Strategy
    Defendants appealing one § 346.63(1) count must anticipate that a previously dismissed companion verdict could be revived.
  3. Pressure on Bastian/Bohacheff
    Although not overruled by the majority, the vigorous critique in the concurrence signals vulnerability; future litigants may press the court to abandon the “dismiss-extra-counts” practice entirely.
  4. Beyond OWI
    The logic—reviving alternative verdicts to preserve “one conviction” schemes—may influence other statutory frameworks employing single-conviction language (e.g., certain homicide-by-intoxication provisions).

IV. Complex Concepts Simplified

“Single Conviction” Phrase
Think of § 346.63(1)(c) as allowing several verdicts but only one file folder to count for sentencing and licence-revocation purposes. The folder can hold any one of the verdicts; if the chosen verdict is later ripped out on appeal, the court can drop another verdict into the folder so it is not left empty.
Dismiss vs. Acquit
A dismissal “with prejudice” ends the charge procedurally, but is not an acquittal. An acquittal reflects factual innocence and bars any future prosecution. Because the RCS verdict was guilty, its dismissal did not create the factual finality that an acquittal would.
Attachment of Jeopardy
Jeopardy “attaches” when a jury is sworn. After that moment the State gets only one full opportunity to obtain a conviction on that charge—unless the defendant himself gains a reversal on appeal, which opens the door to retrial.
Competency vs. Jurisdiction
Wisconsin courts always have subject-matter jurisdiction over criminal cases. “Competency” is narrower: it looks at whether the court has authority to act in the particular way the statute prescribes. Violating an appellate mandate can strip competency, but here the mandate was not violated.

V. Conclusion

State v. McAdory settles a previously untested question in Wisconsin criminal procedure: when multiple intoxicated-driving verdicts arise from one incident, and the operative conviction is vacated on appeal, the trial court may reach back and revive a companion guilty verdict that had been dismissed solely to comply with the “single conviction” rule. The decision safeguards legislative intent that impaired drivers not escape punishment because of appellate error, clarifies that the State’s silence during the first appeal does not forfeit reinstatement, and harmonises Wisconsin practice with federal double-jeopardy doctrine.

The vigorous concurrence—calling for the abandonment of Bohacheff and Bastian—suggests future litigation over whether dismissal of extra verdicts is required at all. For now, however, McAdory supplies prosecutors and courts with a new tool: the “revival motion” under § 346.63(1)(c). Defence counsel must factor this tool into appellate strategy, and trial judges must be ready to decide whether revival serves the public interest and comports with due-process limitations in each case.