Section 939.71. Limitation on the number of convictions.

  If an act forms the basis for a crime punishable under more than one statutory provision of this state or under a statutory provision of this state and the laws of another jurisdiction, a conviction or acquittal on the merits under one provision bars a subsequent prosecution under the other provision unless each provision requires proof of a fact for conviction which the other does not require.

Misdemeanor battery is an included crime of felony battery, but they are not the same offense. Acquittal on felony battery charges does not prevent subsequent prosecution for misdemeanor battery. State v. Vassos, 218 Wis. 2d 330 , 579 N.W.2d 35 (1998), 97-0938 .

This section does not bar a subsequent prosecution for an offense arising from the same acts that could not have been charged at the time of the first prosecution and thus did not bar prosecuting a defendant for 1st-degree intentional homicide for the same act which led to battery convictions when the victim died after having been in a coma for 4 years. State v. McKee, 2002 WI App 148 , 256 Wis. 2d 547 , 648 N.W.2d 34 , 01-1966 .

Under this section, a subsequent prosecution is not prohibited if each provision requires proof of a fact for conviction that the other does not require, even if the same conduct was involved in the two prosecutions. In contrast, s. 961.45 provides that if a violation of ch. 961 is a violation of a federal law or the law of another state, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this state. The difference in the 2 statutes does not violate equal protection. State v. Swinson, 2003 WI App 45 , 261 Wis. 2d 633 , 660 N.W.2d 12 , 02-0395 .