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Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

DOUBLE JEOPARDY (033)

Also see: Allied Offenses of Similar Import; Collateral Estoppel.

For cases on double jeopardy claims tied to mistrials, including those based on hung juries, see Mistrials.

In general

When jeopardy attaches

Sentencing blunders

Juvenile court cases

Multiple jurisdictions

Cumulative punishment for same or related acts and offenses

Cumulative punishment for same or related acts - civil or quasi-criminal proceedings

Litigation of jeopardy claims and appellate review

Retrial or resentencing following appellate review or as trial de novo

In general

Bobby v. Bies (2009), 129 S.Ct. 2145 – Death row inmate back in court in a post-Atkins postconviction action claimed double jeopardy and issue preclusion based on his retardation having been given some weight by reviewing courts in the past. Held that Ohio courts were not barred from conducting a full hearing on retardation. State is not trying to increase punishment. Nor was retardation in the past an issue of ultimate fact.

State v. Speer, 190 Ohio App. 389, 2010-Ohio-5648 – Defendant reported his long time friend fell from a 24 foot boat at 2:00 a.m. Body was found the following day. Initial charges were aggravated vehicular homicide and involuntary manslaughter, but he was subsequently indicted for aggravated murder and murder after telling a stoned cousin he had pushed the deceased into the water. The jury found he defendant guilty of the initial counts, but not guilty of aggravated murder and murder. The vehicular homicide and manslaughter convictions were reversed because a hearing impaired juror had been seated. State v. Speer, 124 Ohio St. 3d 564, 2010-Ohio-649. Before retrial the state sought to resurrect the aggravated murder and murder counts, maintaining it had been denied its opportunity for a full and fair trial of its case against the defendant. The trial court denied the state’s motions, finding reinstatement would violate double jeopardy. Affirmed and the Supreme Court denied further review.

Toledo v. Pena, 185 Ohio App. 3d 645, 2010-Ohio-184 – Defendant was charged with F-4 disorderly conduct. After a jury returned a not guilty verdict the judge amended the complaint to state a minor misdemeanor violation of the statute premised on intoxication, and found the defendant guilty. Since the minor misdemeanor offense is not a lesser included to the F-4, amendment changed the identity of the crime charged. Court does not address a second assignment of error sounding in double jeopardy and due process.

Smith v. Massachusetts (2005), 125 S.Ct. 1129 -- Judge granted a motion for acquittal on one count at the close of the state's case, then at the end of the trial submitted that count to the jury. Ruling on the motion qualified as acquittal for jeopardy purposes. State law did no treat that ruling as open to reconsideration.

State v. Zima, 102 Ohio St. 3d 61, 2004-Ohio-1807 -- When the Blockberger test is applied to a statute containing alternate elements constituting the offense, each statutory alternative should be construed as constituting a separate offense. Defendant pleaded guilty to driving under the influence. This barred prosecution for aggravated vehicular assault under R.C. 2903.08(A)(1) where driving under the influence is an element. But it does not bar prosecution under (A)(2) premised on recklessness.

State v. Mobley, Montgomery App. No. C.A. 19176, 2002-Ohio-5535 -- Double jeopardy may be applied in cases involving contempt charges, but only if the contempt penalty is criminal in nature, and not civil. Lack of a purge order meant contempt for nonsupport was criminal. Prosecution for criminal nonsupport was barred. Also see Dayton Women's Health Center v. Enix (1991), 68 Ohio App. 3d 579, 591.

State v. Best (1975), 42 Ohio St. 2d 530 -- Paragraph two of the syllabus: "To sustain a plea of former jeopardy it must appear: (1) That there was a former prosecution in the same state for the same offense; (2) that the same person was in jeopardy on the first prosecution; (3) that the parties are identical in the two prosecutions; and (4) that the particular offense, on the prosecution of which the jeopardy attached, was such an offense as to create a bar."

Cleveland v. Fogos (1995), 103 Ohio App. 3d 39, 48 -- "We hold that a conviction or acquittal of a zoning code violation does not win the accused a right to create a perpetual nuisance by virtue of prior conviction or acquittal, as the prior offense does not necessarily constitute a bar to subsequent prosecution."

State v. Gonzalez (1996), 112 Ohio App. 3d 19 -- Through a dubious application of authority, court concludes defendant was estopped from raising double jeopardy claim, having pleaded no contest to a misdemeanor charge which was also the subject of a subsequent felony indictment.

Ricketts v. Adamson (1987), 483 U.S. 1 -- No double jeopardy violation found in the following circumstances: Defendant plead guilty to second-degree murder in exchange for agreement to testify against codefendants, did so and was sentenced. Codefendants' conviction was reversed and defendant refused to testify at their retrial. As a result, his conviction was vacated and he was tried and convicted of first degree murder.

State v. Sallee (1966), 8 Ohio App. 2d 9 -- No double jeopardy problem created when a juror is excused because a family member is seriously ill and an alternate is seated in her place.

State v. Reed (1985), 23 Ohio App. 3d 119, 122-123 -- When a jury's verdict is void because it fails to establish the precise drug trafficking offense the defendant has been found guilty of, jeopardy did not terminate and retrial is not barred. (Question whether the better view would be that by erroneously accepting the verdict, the court nonetheless terminated jeopardy.)

State v. Miller (1988), 47 Ohio App. 3d 113 -- Headnote 2: "A municipal court does not acquire competent jurisdiction in a criminal case when the complaint and affidavit are not properly signed by the complainant." But jeopardy did not bar second trial on properly executed complaint.

State v. Worsencroft (1995), 100 Ohio App. 3d 255 -- Pharmacist and pharmacies he operated as a sole proprietorship were indicted in separate accounts for the same acts. After Rule 29 motion for acquittal was granted as to the pharmacies, continued trial and conviction of the pharmacist constituted double jeopardy. Dissent maintains sole proprietorship was not properly the subject of prosecution and those counts were a nullity. Therefore, jeopardy was not a bar as it might have been were they a business entity legally indistinguishable from the defendant.

State v. Urvan (1982), 4 Ohio App. 3d 151 -- Successful completion of a diversion program is the equivalent of serving a sentence or completing probation. If related charges would have merged if pursued initially, they may not be pursued upon completion of diversion. Court views diversion as a contract between the defendant and the prosecutor. Also see State v. Monk (1994), 64 Ohio Misc. 2d 1. Compare State v. Mutter (1983), 14 Ohio App. 3d 356 (prosecution allowed where drug sales were in separate counties).

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When jeopardy attaches

State v. Annable, 194 Ohio App. 3d 336, 2011-Ohio-2029, ¶19-25 – Entry mistakenly stated dismissal was with prejudice. Nunc pro tunc entry corrected this “clerical error.” Circumstances did not call for dismissal with prejudice. No double jeopardy violation found in subsequent prosecution.

State v. Lee, 180 Ohio App. 3d 739, 2009-Ohio-299 – Court sua sponte dismissed an aggravated robbery charge mistakenly believing the indictment was defective. Double jeopardy does not bar retrial as the dismissal was on legal grounds without determination of guilt or innocence.

Cleveland v. Simpkins, 192 Ohio App. 3d 808, 2011-Ohio-1249 – Complaint was dismissed with prejudice as defective. City appealed. Reversed. Though the complaint was missing the date and time stamp of the clerk of courts office the electronic docket indicates that it was actually filed. Second, though the complaint was missing the date it was signed by a deputy clerk, the accompanying statement of facts and probable cause determination was signed and dated by the clerk. Since defects went to jurisdiction of the court matter could be raised even though trial had commenced. Double jeopardy does not preclude retrial.

State v. Nelson (1977), 51 Ohio App. 2d 31 -- A preliminary hearing does not place the defendant in jeopardy. If the court determines that there is not probable cause to bind a defendant over on a felony charge, but is probable cause to believe he committed a misdemeanor, the court may not proceed to dispose of the misdemeanor without causing a complaint to be filed. Thus, a plea to a misdemeanor, without a complaint, is unauthorized and jeopardy does not bar subsequent prosecution for the original felony. (Decision may be subject to challenge.)

Crist v. Bretz (1978), 437 U.S. 28, 37-38 -- In both state and federal courts, the Fifth and Fourteenth Amendments dictate that jeopardy attaches when the jury is empaneled and sworn.

State v. Johnson (1990), 68 Ohio App. 3d 272, 277 -- When a nolle prosequi is entered before the jury is sworn, the defendant has not been placed in jeopardy. Dismissal of a duplicitous indictment following a mistrial does not bar further prosecution.

Downum v. United States (1963), 372 U.S. 734 -- At first trial both sides announced that they were ready, a jury was selected, but then discharged at the prosecutor's request after he had discovered a key witness was not present. Jeopardy barred any retrial.

State, ex rel. Leis, v. Gusweiler (1981), 65 Ohio St. 2d 60 -- Jeopardy attaches when a no contest plea is accepted. Court found defendant guilty of attempt instead of rape. Prosecutor not entitled to a writ of mandamus to compel judge to find defendant guilty of principal offense.

United States v. Sanchez (5th Cir. 1980), 609 F. 2d 761 -- Jeopardy attaches when a plea has been accepted. Therefore, conditional acceptance of plea, pending probation report, did not bar judge from later rejecting plea agreement submitted by the parties.

State v. Larabee (1994), 69 Ohio St. 3d 357 -- Jeopardy did not attach where the trial court sustained a motion to dismiss an indictment for failure to state an offense, following a hearing at which sworn testimony was taken. The court of appeals had construed this hearing as being, in effect, a trial on the merits and faulted the prosecutor for failing to seek leave to appeal pursuant to R.C. 2945.67(A).

State v. Peek (1996), 110 Ohio App. 3d 165 -- Defendant entered a no contest plea to receiving stolen property, specifically a motor vehicle. Judge found him guilty of unauthorized use of a motor vehicle. Defendant appealed. Held that the no contest plea placed defendant in jeopardy, and that double jeopardy bars reprosecution for RSP. Further held that unauthorized use is not a lesser included offense, leading to reversal of that conviction. However, defendant may still be prosecuted for unauthorized use.

State v. Musick (1997), 119 Ohio App. 3d 361 -- Defendant was charged with an M-4 deer hunting violation. Following a procedure only applicable to minor misdemeanor offenses, the clerk took payment of a fine and costs in lieu of a court appearance. Defendant failed to sign guilty plea portion of citation. Jeopardy did not attach.

State v. Reddick (1996), 113 Ohio App. 3d 788 -- Juvenile entered admission to unauthorized use of a motor vehicle and assault before a referee. Before the hearing concluded, the prosecutor announced an intention to seek bindover. Resulting trial as an adult violated double jeopardy. Jeopardy attached when hearing before the referee commenced. Bindover must be sought prior to adjudicatory hearing.

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Sentencing blunders

Also see Judgment

State v. Bell, Franklin App. No. 02AP-1282, 2004-Ohio-5256 --Double jeopardy violation found where judgment entry was filed and court later added a restitution order. At sentencing the judge indicated the victim would be heard from, but the entry did not reflect the issue of restitution remained open.

Bozza v. United States (1947), 330 U.S. 160 -- No jeopardy violation where case is recalled after court learns it failed to impose mandatory minimum sentence of fine and imprisonment. Also see Breest v. Helgemoe (1st Cir. 1978), 579 F. 2d 95; State v. Beasley (1984), 14 Ohio St. 3d 74.

State v. Dickens (1987), 41 Ohio App. 3d 354 -- A sentence outside statutory limits is void and may be corrected by the trial court, even if it means the defendant, who has been released on parole, must be returned to custody. (Question whether double jeopardy dictates a different result where state fails to appeal original sentence.)

State v. McCollough (1991), 78 Ohio App. 3d 42 -- Court mistakenly sentenced defendant to concurrent ten year terms under a revised sentencing statute when it should have applied the sentencing statute in force at the time of the offense. Because the initial sentence was void, the court did not violate the Double Jeopardy Clause when resentencing defendant to consecutive 5-25 year terms, even though maximum was increased from 25 to 50 years.

State v. Parsons (1997), 122 Ohio App. 3d 284 -- Original judgment entry mistakenly said jail sentence for a misdemeanor was suspended. Nunc pro tunc corrected entry did not violate double jeopardy.

State v. Ballard (1991), 77 Ohio App. 3d 595 -- Double jeopardy violation found where court sentenced defendant to concurrent misdemeanor terms, under mistaken belief it was required to do so, then resentenced her to consecutive terms. Original sentence had not been reduced to writing, but the defendant had commenced serving it.

Mansfield v. Hout (1996), 116 Ohio App. 3d 497 -- Defendant pleaded no contest and was sentenced for a first offense OMVI. Later in the day it was discovered that he had a prior, leading to rearraignment and conviction for second offense OMVI. Since the court was misinformed as to the nature of the offense, but imposed a correct sentence, which the defendant had begun to serve, a double jeopardy violation was found. Also see State v. Waddell (1995), 106 Ohio App. 3d 600.

State v. Knaff (1998), 128 Ohio App. 3d 90 -- Defendant pleaded guilty to reckless operation, but before a "finding" was made, the prosecutor moved to dismiss in light of a pending indictment for fleeing. Jeopardy attacked at the time the plea was entered. Furthermore, applying Blockburger, prosecution for the greater offense was barred.

State v. Mader (1994), 97 Ohio App. 202 -- Defendant pleaded guilty to two offenses under a single case number. Initial sentencing entry ordered him to serve six months in jail. Prosecutor claimed that this was the sentence for only one of the two charges and the court ultimately imposed a twelve month sentence, after the defendant had begun serving the initial sentence. Held to be double jeopardy.

State v. Sawicki (1998), 128 Ohio App. 3d 585 -- Prison escapee pleaded to F-3 escape and received a one-year sentence. Prison wrote the court pointing out he had been serving time for an F-1 and should have received more time for an F-2 violation of the escape statute. Plea was vacated, the indictment amended, and ultimately a longer sentence was imposed. Held to be double jeopardy since the error lay in the nature of the offense charged and not the sentencing.

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Juvenile court cases

In re S.J., 106 Ohio St. 3d 11, 2005-Ohio-3215 -- Juvenile court did not find probable cause in support of bindover. Prosecutor appealed. Juvenile admitted delinquency. Syllabus: "(1) A juvenile court lacks jurisdiction to proceed with an adjudication of a child after a notice of appeal has been filed from an order of that court. (2) During the pendency of an appeal, any adjudication of a child made by a juvenile court is void. Therefore the Double Jeopardy clause of the United States Constitution does not apply, and the court of appeals may review the merits of the appeal."

Swisher v. Brady (1978), 438 U.S. 204 -- Special masters in Maryland had powers comparable to juvenile court referees in Ohio. Issue was whether double jeopardy barred prosecutor taking exceptions to a master's proposed findings before a judge. Held that it did not, provided the judge was limited to a review of the record made before the master, with additional material being considered only with the consent of the defendant. Also see United States v. Scott (1978), 437 U.S. 82.

In the Matter of Kettapong Phommarath (November 14, 1995), Franklin Co. App. No. 95APF05-539, unreported (1995 Opinions 4686) -- Double jeopardy violation found where judge signed an entry adopting the report and recommendations of the referee that the defendant be found not guilty before the period for objections had expired, then later sustained objections filed after the entry had been put on and found the defendant guilty.

In re Mojica (1995), 107 Ohio App. 3d 461 -- Juvenile court judge conducted a single hearing addressed to motion to suppress and guilt or innocence, granting the motion to dismiss and immediately dismissing the case. Held: (1) Since the judge did not have authority to dismiss the case the prosecutor retains the right to appeal. (2) Ordering suppression was erroneous. (3) Because of the dismissal, double jeopardy bars further proceedings.

Johnson v. Perini (6th Cir. 1981), 644 F. 2d 573 -- Probable cause determination as a part of bindover proceedings in juvenile court does not constitute jeopardy. Compare Breed v. Jones (1975), 421 U.S. 517 where jeopardy barred further prosecution as an adult, since the juvenile proceedings required an adjudication that the accused was guilty of the acts charged.

In re Williams (1986), 31 Ohio App. 3d 241 -- When a juvenile court referee improperly intervenes to assist the prosecutor in proving the enhanced penalty element of a theft offense, then declares a mistrial based on that intervention, the juvenile may be retried for theft, but not on the enhancement element.

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Multiple jurisdictions

United States v. Lara (2004), 124 S.Ct. 1628 -- Though Congress lifted or relaxed restrictions on prosecution of non-member Indians in tribal courts, prosecution here rested ultimately on inherent tribal sovereignty rather than delegated federal authority. Under the dual sovereignty doctrine, the defendant could be successively prosecuted in federal court for assault on a federal officer.

State v. Schooler, Greene App. No. 2003 CA 65, 2004-Ohio-2430 -- Municipal court judge mistakenly accepted a plea to carrying concealed weapons after being misinformed by the bailiff that it was a misdemeanor. Court did not have subject matter jurisdiction. Therefore subsequent felony prosecution was not barred by double jeopardy.

Heath v. Alabama (1985), 474 U.S. 82 -- The dual sovereignty doctrine applies equally as between states as between the federal government and state governments.

State v. Best (1975), 42 Ohio St. 2d 530 -- There is no "dual sovereignty" between the state and municipalities. Municipalities are the creation of the state and may not separately prosecute ordinance offenses already prosecuted under state law.

State v. Fletcher (1971), 26 Ohio St. 2d 221 -- Syllabus: "The conviction or acquittal of a defendant in a federal court on charges of violation of federal law is not a bar to criminal prosecution in Ohio courts for violation of Ohio penal statutes, where both prosecutions relate to and arise from the same criminal acts."

State v. Brown (1981), 2 Ohio App. 3d 321 -- Headnote 1: "Where a continuous course of conduct produces violations of the criminal laws of Kentucky and Ohio, a defendant may be constitutionally prosecuted in each state for the violations of its respective laws. Each state may exercise its sovereign powers to punish lawbreakers. (Abbate v. United States, 359 U.S. 187, Bartkus v. Illinois, 359 U.S. 121, and State v. Fletcher, 26 Ohio St. 2d 221, applied.)"

State v. McKinney (1992), 80 Ohio App. 3d 470 -- Victim was killed in Ohio, but body was dumped in Indiana. After Indiana conviction was reversed, defendant was tried and convicted in Ohio. Applying the principle of dual sovereignty between states as set forth in Heath v. Alabama (1985), 474 U.S. 82, the Ohio prosecution was not barred by double jeopardy.

State v. Anderson (1989), 57 Ohio App. 3d 108 -- Headnote: "The Double Jeopardy Clauses of the United States and Ohio Constitutions forbid the prosecution of a defendant for drunk driving by a political subdivision when that defendant has already been placed in jeopardy by another political subdivision of the same state for the same offense, stemming from the same underlying course of conduct."

State v. Liston (1991), 70 Ohio App. 3d 663 -- Defendant was convicted of theft in Cuyahoga County based on use of stolen credit card to obtain various items. Charges in Lake county were attempted theft, based on attempt to exchange some of property for cash, and RSP based on possession of the other items. Held that jeopardy did not bar attempted theft conviction, but did bar the RSP conviction. Also see State v. Urvan (1982), 4 Ohio App. 3d 151; State v. Barnett (1998), 124 Ohio App. 3d 746.

State v. DeLong (1990), 70 Ohio App. 3d 402 -- Conviction for receiving stolen property in one county barred prosecution for robbery in another based on the same conduct.

State v. Wood (1996), 112 Ohio App. 3d 621 -- Being declared persona non grata in university proceedings did not create a double jeopardy barrier to prosecution for disorderly conduct in municipal court.

Middleton v. Roberds (1996), 112 Ohio App. 3d 678 -- Termination of state employment for "failure of good behavior" did not create a jeopardy barrier to prosecution for menacing by stalking based upon the same conduct.

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Cumulative punishment for same or related acts and offenses

State v. Fairbanks, 117 Ohio St. 3d 543, 2008-Ohio-1470 – Defendant pled guilty to reckless operation and later interposed that as the basis for a double jeopardy claim when facing prosecution for fleeing with a risk of serious physical harm specification. Majority concludes addition of the specification does not render the two charges alike for double jeopardy purposes. Dissent finds the specification is an element and a bar should exist.

State v. Barr, 178 Ohio App. 3d 318, 2008-Ohio-4754 – Defendant tried to interpose his no contest plea to marijuana possession in Municipal Court as the basis for double jeopardy barring subsequent prosecution for felony drug possession, on the basis that the factual recitation in support of the no contest plea referred to both the marijuana and "a bottle of pills." Double jeopardy doesn‘t apply as the offenses are separate and the misdemeanor complaint referred only to marijuana. Plain error reasonable reliance pitch fails for failure to articulate a basis for believing the no contest plea would resolve everything.

State v. Sutherlin, 154 Ohio App. 3d 765, 2003-Ohio-5265 -- Double jeopardy violation found where revocation of community control was based on the testimony of the victim of a subsequent offense the defendant had been acquitted of at trial.

State v. Gonzales, 151 Ohio App. 3d 160, 2002-Ohio-4937-- (1) ¶24-38 -- Defendant claimed acquittal on a crack possession charge at his first trial barred subsequent prosecution on any offense involving the same quantity of drug. Following Rance allied offense of similar import analysis, possession and trafficking are distinguishable under Blockburger. At ¶37: "Were it possible to sell or offer to sell without possessing the drug we would have a difficult time reconciling Rance with common sense. But the unique juxtaposition of the elements here gives us no problem." (2) ¶39-42 -- Ohio's statutory scheme for punishing major drug offenders does not violate double jeopardy.

State v. Martello, 97 Ohio St. 3d 398, 2002-Ohio-6661 -- Syllabus: "R.C. 2967.28(F)(4), which specifies that a person released on postrelease control who violates conditions of that postrelease control faces a term of incarceration for the violation as well as criminal prosecution for the conduct that was the subject of the violation as a felony in its own right, does not violate the Double Jeopardy Clauses of the United States and Ohio Constitutions."

State v. Morton, Montgomery App. No. 20358, 2005-Ohio-308 -- Plea to reckless in municipal court barred prosecution for fleeing as a felony, where recklessness elevated the degree of the offense. Also see State v. Knaff (1998), 128 Ohio App. 3d 90; State v. Morton (April 30, 1999), Hamilton App. No. C-980391.

Brown v. Ohio (1977), 432 U.S. 161 -- The Double Jeopardy Clause forbids successive prosecution and cumulative punishment for a greater and lesser included offense. The state may not avoid the consequences of the Double Jeopardy Clause by dividing a single crime into a series of temporal or spatial units.

Harris v. Oklahoma (1977), 433 U.S. 682 -- If the defendant has been convicted of a greater offense incorporating all of the elements of a lesser offense, he may not be tried for the lesser offense.

Blockburger v. United States (1931), 284 U.S. 299, 304 -- "...(W)here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Also see Whalen v. United States (1980), 445 U.S. 684 (construction of statutes indicates no authority for multiple sentences).

Albernaz v. United States (1981), 450 U.S. 333, 340-343 -- Where there is clear legislative intent, Blockburger is not controlling. Where the legislative record is silent, it should be assumed legislation was passed with Blockburger in mind, and the Congress "is predominantly a lawyer's body." Also see United States v. Woodard (1985), 469 U.S. 105; Ball v. United States (1985), 470 U.S. 856.

State v. Moss (1982), 69 Ohio St. 2d 515 -- Paragraphs three and four of the syllabus: "(3) The Blockburger test is a rule of statutory construction that is inapplicable where the intent of the General Assembly is manifest. (Albernaz v. United States, 450 U.S. 333; Ianelli v. United States, 420 U.S. 770, approved and followed.) (4) The Blockburger test is not to be used alone to ascertain legislative intent, but is to be utilized in conjunction with other tests employed for purposes of statutory construction."

State v. Rance (1999), 85 Ohio St. 3d 632 -- Paragraph three of the syllabus: "In Ohio it is unnecessary to resort to the Blockburger test in determining whether cumulative punishments imposed within a single trial for more than one offense resulting from the same criminal conduct violate the federal and state constitutional provisions against double jeopardy. Instead, R.C. 2941.25's two-step test answers the constitutional and state statutory inquiries. The statute manifests the General Assembly's intent to permit, in appropriate cases, cumulative punishments for the same conduct..."

State v. Thomas (1980), 61 Ohio St. 2d 254 -- Paragraphs four and five of the syllabus: "(4) Even though the same act or transaction may constitute a violation of two distinct statutory provisions and would permit the imposition of multiple sentences, successive prosecutions will be barred in certain circumstances where the second prosecution requires relitigation of factual issues already resolved by the first...(5) An exception to the rule of Ashe v. Swenson (397 U.S. 436) may exist where the state is unable to proceed with one of the charges at the time of the first trial because additional facts necessary to sustain the charge have not occurred or have not been discovered despite the exercise of due diligence..." (Victim died after defendant pleaded to robbery.)

State v. Konicek (1984), 16 Ohio App. 3d 17 -- If all elements of a greater offense have not occurred when the state concludes prosecution for an included offense, prosecution for the greater offense is not barred. Death of person injured in accident after defendant had been convicted of OMVI.

State v. Wilkin (1983), 11 Ohio App. 3d 149 -- Defendant was arrested in possession of both a knife and loaded firearm. Disposition in Municipal Court of the misdemeanor charge based on the knife did not bar prosecution for felony charge based on the gun.

State v. Harris (1979), 58 Ohio St. 2d 257 -- Syllabus: "Where a conviction of grand theft in violation of R.C. 2913.01 does not require proof of any element not required to be proved for a conviction of robbery in violation of R.C. 2911.02, both are the same offense for purposes of double jeopardy."

State v. Sanders (1978), 59 Ohio App. 2d 187, 192 -- A single of act of receiving multiple items of stolen property is a single offense. Multiple sentences constitutes double jeopardy. Also see Smith v. State (1898), 59 Ohio St. 350; State v. Wilson (1985), 21 Ohio App. 3d 171.

State v. Truitt (1981), 1 Ohio App. 3d 65 -- The Double Jeopardy Clause did not bar defendant being prosecuted for a direct sale of drugs after he had been convicted of a misdemeanor possession charge based on drugs on his person at the time he was arrested.

State v. Kassen (1984), 20 Ohio App. 3d 323 -- Possession of dangerous ordinance and criminal endangering have such a commonality of elements that jeopardy bars prosecution of the one after conviction of the other.

State v. Johnson (1983), 6 Ohio St. 3d 420 -- Paragraph two of the syllabus: "The offenses of murder, R.C. 2903.02, and involuntary manslaughter, R.C. 2903.04, share the common element of causing the death of another and are distinguishable only by the offender's mental state. The prohibition against double jeopardy requires that in any one killing, the offender may be convicted of one or the other of the offenses but not both." Reversed on other grounds, Ohio v. Johnson (1984), 467 U.S. 493.

State v. Torres (1986), 31 Ohio App. 3d 118 -- Where a single death is the result of an accident caused by the defendant's drunken driving, he may not be convicted of both involuntary manslaughter and aggravated vehicular homicide.

Ohio v. Johnson (1984), 467 U.S. 493 -- When the same homicide has been indicted in several counts based on different theories of culpability, a plea to one count at arraignment does not prevent the state from proceeding to trial on the remaining counts.

Garrett v. United States (1985), 471 U.S. 773 -- No jeopardy violation in using offense defendant has been convicted of as predicate for further continuing criminal enterprise charge.

State v. Vasquez (1984), 18 Ohio App. 3d 92 -- Added time for firearm specification in aggravated robbery prosecution is not contrary to the Double Jeopardy Clause. Also see Missouri v. Hunter (1983), 459 U.S. 359; State v. Sims (1984), 19 Ohio App. 3d 87; State v. Loines (1984), 20 Ohio App. 3d 69.; State v. Price (1985), 24 Ohio App. 3d 186; State v. Mullins (1986), 34 Ohio App. 3d 192.

State v. Price (1985), 26 Ohio App. 3d 41 -- Prior conviction for contributing to the delinquency of a minor does not bar prosecution of adult for related burglary. [Might argue are allied offenses of similar import pursuant to R.C. 2941.25. See Newark v. Vazirani (1990), 48 Ohio St. 3d 81.] Also see State, ex rel. Wall, v. Grossman (1980), 61 Ohio St. 2d 4; State v. Gose (1986), 33 Ohio App. 3d 288 (liquor law violation).

State v. Gose (1986), 33 Ohio App. 3d 288 -- Jeopardy does not bar prosecution for furnishing alcohol to a minor and related contributing to delinquency charge.

State v. Gartrell (1995), 103 Ohio App. 3d 588 -- Double jeopardy did not bar prosecution for robbery following M-4 disorderly conduct conviction arising from the same incident. Though minor misdemeanor disorderly might have barred subsequent prosecution, M-4 violation had the additional element of persistence. See concurring opinion on bumbling bifurcation of prosecutions.

State v. McMullen (1983), 6 Ohio St. 3d 244 -- Syllabus: "A judge may, pursuant to R.C. 2951.09, impose a longer sentence after revocation of a defendant's probation without violating the defendant's constitutional right against double jeopardy. (United States v. DiFrancesco, 449 U.S. 117, followed.)" Also see State v. Emerick (1995), 108 Ohio App. 3d 401, 407-408.

State v. Jacot (1993), 97 Ohio App. 3d 415, appeal dismissed as improvidently granted 71 Ohio St. 3d 1217 (1995) -- Per se and impaired driving violations of the OMVI statute are said to be distinct for purposes of double jeopardy as each requires proof of an additional fact the other does not. Case arises in the context of a speedy trial claim resolved in the defendant's favor. Per se charge was filed while impaired driving charge was already pending and both were continued pending determination of a motion to suppress test results. Court found time was not tolled on the impaired driving charge, which the motion did not relate to, and rejected the state's claim double jeopardy considerations required the cases be tried together. Note that if separate convictions had resulted, they would have merged under R.C. 2941.25.

State v. Mergy (1996), 105 Ohio App. 3d 646 -- Defendant's license was suspended on four different occasions, leading to four DUS charges after the defendant was stopped for a single incident of driving. Held to be allied offenses of similar import. Further found to be a double jeopardy violation.

Shearman v. Van Camp (1992), 64 Ohio St. 3d 468 -- Double jeopardy does not bar prosecution for CCW merely because another person has already been convicted of possession of the same weapon.

State v. Wilson (1996), 113 Ohio App. 3d 737, 748 -- Convictions for engaging in a pattern of corrupt activity and conspiring to do so did not amount to double jeopardy.

State v. Moore (1996), 110 Ohio App. 3d 649 -- Municipal ordinance offense based on possession of a semiautomatic weapon and weapons under disability charge arising from the same incident were not allied offense of similar import, nor was there a double jeopardy violation.

State v. Colegrove (1998), 123 Ohio App. 3d 565 -- Defendant pleaded guilty to misdemeanor public indecency after offering to pay two girls to follow his car to a driveway where they noticed he was naked from the waist down and engaged in auto-eroticism. Jeopardy did not bar subsequent indictment for kidnapping and disseminating matter harmful to juveniles with repeat violent offender, sexual motivation, and sexually violent predator specifications (= potential life sentence).

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Cumulative punishment for same or related acts - civil or quasi-criminal proceedings

State v. Fairbanks, 117 Ohio St. 3d 543, 2008-Ohio-1470 – Defendant pled guilty to reckless operation and later interposed that as the basis for a double jeopardy claim when facing prosecution for fleeing with a risk of serious physical harm specification. Majority concludes addition of the specification does not render the two charges alike for double jeopardy purposes. Dissent finds the specification is an element and a bar should exist.

State v. Barr, 178 Ohio App. 3d 318, 2008-Ohio-4754 – Defendant tried to interpose his no contest plea to marijuana possession in Municipal Court as the basis for double jeopardy barring subsequent prosecution for felony drug possession, on the basis that the factual recitation in support of the no contest plea referred to both the marijuana and “a bottle of pills.” Double jeopardy doesn’t apply as the offenses are separate and the misdemeanor complaint referred only to marijuana. Plain error reasonable reliance pitch fails for failure to articulate a basis for believing the no contest plea would resolve everything.

State v. Palmer, Montgomery App. No. 19221, 2004-Ohio-779 --Whether or not a sentence for contempt creates a jeopardy bar to criminal prosecution turns on whether it was civil or criminal in nature. Defendant served one day of ten attached to a prior purge order, and was place under a new purge order. Since he "held the keys to the jailhouse" under the previous order, and was punished for inaction, that penalty was civil in nature. Thus nonsupport prosecution may go forward.

United States v. Dixon (1993), 509 U.S. 688 -- (1) Double jeopardy bars prosecution for criminal acts already punished as criminal contempt if, applying the same elements test of Blockburger v. United States (1932), 284 U.S. 299, proof of the contempt incorporated the elements of the alleged crime. Defendants were found in contempt for violation of term of release that they not commit a criminal offense in one case or commit or threaten an interfamily offense in the other. (2) Grady v. Corbin (1990), 495 U.S. 508, which enunciated a "same conduct" test is overruled. Also see State v. Crawley (1994), 96 Ohio App. 3d 149 holding Dixon may be applied retroactively.

United States v. Halper (1989), 490 U.S. 435 -- Punitive civil action not calculated to recover the government's actual loss amounts to double jeopardy after the defendant has already been criminally prosecuted.

Department of Revenue of Montana v. Kurth Ranch (1994), 511 U.S. 767 -- Attempt to collect "tax" on possession and storage of dangerous drugs, in the amount of eight times the value of harvested marijuana, after disposition of criminal case amounted to double jeopardy, as the "tax" is punitive in nature.

Hudson v. U.S. (1997), 522 U.S. 93 -- Bankers were fined and occupationally disbarred by the Office of the Comptroller of the Currency for violations, then indicted for essentially the same conduct. Prosecution was not barred by double jeopardy, which applies only to criminal prosecution. United States v. Halper (1989), 490 U.S. 435 largely disavowed. United States v. Ward (1980), 248 U.S. 242 endorsed.

State v. Varney (1995), 105 Ohio App. 3d 195 -- Defendant failed to report income to the welfare department, leading to a six-month disqualification from the food stamp program. This being a "remedial civil sanction," subsequent prosecution for tampering with records and theft was not barred.

State v. Nutt (September 16, 1999), Pickaway Co. App. No. 98CA36, unreported -- Double jeopardy violation found in prosecution of an inmate for an offense based on conduct already punished as bad time added to his existing sentence.

State v. Keller (1976), 52 Ohio App. 2d 217 -- Headnote: "Administrative sanctions imposed upon a prisoner for a violation of prison rules of conduct do not raise the bar of double jeopardy against the prosecution of that prisoner for a statutory offense arising from the course of conduct for which the disciplinary measures were taken." Also see State v. Proctor (1977), 151 Ohio App. 2d 151 (escape); State v. Hart (April 1, 1980), Franklin Co. App. No. 79AP-877, unreported (1980 Opinions 1034).

State v. Vasquez (1997), 122 Ohio App. 3d 692 -- Inmate received fifteen days in disciplinary control after marijuana, LSA, heroin, "hooch," a needle and cash were found in his cell. This discipline did not bar prosecution for aggravated trafficking.

Columbus v. Bedbarz (January 24, 1995), Franklin Co. Case No. 94APC06-890 (1995 Opinions 155) -- Payment of the amount demanded by Meijer store in a "letter of demand for civil damages," even if excessive and punitive, did not bar criminal prosecution. Government was not a party to those proceedings.

Cleveland v. Hogan (1998), 92 Ohio Misc. 2d 34 -- Wife didn't prevail when she sought a protection order in domestic relations court. Husband claimed prosecution for domestic violence was barred by double jeopardy and collateral estoppel. Held that there was no bar as wife and city were not in privity.

State v. Gustafson (1996), 76 Ohio St. 3d 425 -- (1) At 432: "Ohio courts have historically treated the protections afforded by the Double Jeopardy Clauses of the Ohio Constitution and the United States Constitution as coextensive...We therefore proceed on the premise that the Double Jeopardy Clause of each Constitution prohibits (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense." (2) At 436: "The administrative suspension of one's driver's license is simply not the type of proceeding to which double jeopardy protection attaches so as to preclude a subsequent criminal prosecution." (3) At 438: "We hold that an ALS imposed pursuant to R.C. 4511.191, and a criminal DUI prosecution for violation of R.C. 4511.19 arising out of the same arrest constitute separate proceedings for double jeopardy purposes." (4) At 438-443: The Ohio administrative license suspension laws violate double jeopardy only to the extent they impose multiple punishments for the same offense. This threshold is crossed when an ALS extends beyond adjudication of the related criminal charge.

Seven Hills v. Wankewycz (1996), 114 Ohio App. 3d 652 -- Trial court stayed OMVI sentence pending appeal, but allowed ALS to continue. Applying Gustafson to now impose sentence would violate double jeopardy.

State v. Uskert (1999), 85 Ohio St. 3d 593 -- Syllabus: "The reinstatement fee of former R.C. 4511.191(L)(2) does not violate the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution or Section 10, Article I of the Ohio Constitution."

United States v. Ursery (1996), 518 U.S. 267 -- Settlement of an in rem forfeiture action against property held not to have constituted a punishment for purposes of baring subsequent prosecution for manufacturing marijuana on the premises. Marijuana cultivation had also been the basis for the forfeiture action.

United States v. $405,089.23 U.S. Currency (9th Cir. 1994), 33 F.3d 1210, amended on denial of rehearing en banc, (9th Cir. 1995), 56 F.3d 41, cert. granted, (U.S. Jan. 12, 1996), 64 U.S.L.W. 3161, 58 Cr.L. 3133 -- Double jeopardy violation found where criminal prosecution and civil forfeiture action arising from the same offense were not brought in a single proceeding. Compare United States v. Milan (2d Cir. 1993), 2 F.3d 17; United States v. Smith (8th Cir. 1996), 58 Cr.L. 1417 (both cases commenced and resolved within a few days of each other).

State v. Adams (1995), 105 Ohio App. 3d 492 -- Double jeopardy violation found where state pursued criminal forfeiture action against a bobcat carcass after related criminal charges had been dismissed on speedy trial grounds. At p. 498: "...(T)he dismissal of a criminal complaint for speedy trial violations amounts to a dismissal with prejudice, or an acquittal, and bars any further punitive actions by the state based on the same act or omission." Civil forfeiture would not have been banned, though opinion does not address whether it would have been available.

State v. Casalicchio (1991), 58 Ohio St. 3d 178 -- State failed to seek forfeiture until after sentencing. Because forfeiture was criminal in nature, additional penalty was a double jeopardy violation. Syllabus: "Where property is ruled contraband pursuant to R.C. 2933.42(B), forfeiture of that property pursuant to R.C. 2933.43 constitutes a separate criminal penalty in addition to the penalty the defendant faces for conviction of the underlying felony." Also see State v. DePue (1994), 96 Ohio App. 3d 513.

State v. Wegmiller (1993), 88 Ohio App. 3d 68 -- (1) No double jeopardy problem where forfeiture petition was filed after plea was entered but before sentencing. State v. Casalicchio (1991), 58 Ohio App. 3d 178, distinguished. (2) Forfeiture was proper where defendant was found to be the actual owner of car titled in his father's name in order to save on insurance. Compare In re Forfeiture of Certain Real Property (1994), 99 Ohio App. 3d 565 finding a double jeopardy violation where petition seeking forfeiture was filed after guilty verdict, but before sentencing, though house in question was otherwise subject to forfeiture.

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Litigation of jeopardy claims and appellate review

State v. Hubbard (1999), 135 Ohio App. 3d 518 -- The overruling of a motion to dismiss on the basis of double jeopardy does not qualify as an order denying a provisional remedy and thus is not a final appealable order under revised R.C. 2505.02. Also see State v. Hubbard, 150 Ohio App. 3d 623, 2002-Ohio-6904, ¶ 40-51 concluding prosecutor's questions were not calculated to goad the defense into moving for a mistrial.

United States v. DiFrancesco (1980), 449 U.S. 117 -- No jeopardy violation found in racketeering prosecution where prosecutor was permitted to appeal sentence.

Menna v. New York (1975), 423 U.S. 61 -- Guilty plea does not bar appeal of double jeopardy issue. Also see Blackledge v. Perry (1974), 423 U.S. 21. Compare State v. Hicks (June 26, 1979), Franklin Co. App. No. 79AP-2, unreported (1979 Opinions 1729) applying Crim. R. 12(G) and holding jeopardy claims are waived if not raised by motion before trial.

Morris v. Matthews (1986), 475 U.S. 237 -- Where the defendant has been convicted of an offense an appellate court concludes is barred by jeopardy, in appropriate circumstances the remedy is to enter conviction on a lesser included offense as to which there is no jeopardy bar. Defendant confessed to the murder of an accomplice after he pleaded to the robbery they committed. Aggravated murder conviction barred but murder conviction was not. Also see Matthews v. Marshall (6th Cir. 1984), 754 F. 2d 158 (same case).

Fong Foo v. United States (1962), 369 U.S. 141 -- A judgment of acquittal is final and may not be reviewed, even if it is the result of a motion for acquittal granted erroneously. Also see State v. Lewis (1982), 4 Ohio App. 3d 275, 279-281).

Smalis v. Pennsylvania (1986), 476 U.S. 140 -- Demurrer challenging sufficiency of state's proof was sustained after the state had rested. This was in effect an acquittal and retrial was barred. Compare United States v. Bertrand (6th Cir. 1980), 634 F. 2d 338 where appeal was taken from the post-verdict granting of a Rule 29 motion.

Wenzel v. Enright (1993), 68 Ohio St. 3d 63 -- Syllabus: "(1) The decision of a trial court denying a motion to dismiss on the ground of double jeopardy is not a final appealable order, and is not subject to judicial review through an action in habeas corpus or prohibition, or any other action or proceeding invoking the original jurisdiction of an appellate court. (2) In Ohio, the proper remedy for seeking judicial review of the denial of a motion to dismiss on the ground of double jeopardy is a direct appeal to the court of appeals at the conclusion of the trial court proceedings." Also see Borsick v. State (1995), 73 Ohio St. 3d 258; State v. Crago (1990), 53 Ohio St. 3d 243. Compare Richardson v. United States (1984), 468 U.S. 317; Abney v. United States (1977), 431 U.S. 651; Burks v. United States (1978), 437 U.S. 1.

Harpster v. Ohio (1997), 128 F. 3d 322 -- Since Ohio law does not provide for interlocutory appeal of double jeopardy claims, such matters may be raised through habeas corpus in federal court.

State v. Bell (1992), 78 Ohio App. 3d 781 -- Defendant pleaded guilty to reduced charge of petty theft at initial appearance. Prosecutor sought to revive greater charge through appeal, claiming plea was irregular since there was no new complaint filed. Court of appeals defeats this attempt by interposing lack of a record demonstrating prosecutor's claim and presuming proceedings in the trial court to have been regular.

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Retrial or resentencing following appellate review or as trial de novo

State v. Roberts, 119 Ohio St. 3d 294, 2008-Ohio-3835 – Syllabus: "When a defendant‘s sentence is stayed on appeal, but the defendant is released from prison under the assumption that the sentence has been served, the defendant has no expectation of finality in that sentence for purposes of the Double Jeopardy Clause." Blakely claim netted defendant a reduced sentence from the Court of Appeals but ultimately the Supreme Court‘s decision in Foster permitted a return to the original sentence. Meanwhile the defendant had completed the reduced term. United States v. DiFrancesco (1980), 449 U.S. 117, followed.

Sattazahn v. Pennsylvania (2003), 123 S.Ct. 732 -- Under Pennsylvania law, if the jury is deadlocked at the sentencing phase of a death penalty trial, the judge must impose a life sentence. Because this is not in effect an acquittal as to the death penalty, if there is a reversal based on error at the guilt phase, the defendant may face the death penalty at the retrial. Majority finds no double jeopardy or due process violation.

State v. Nelloms (2001), 144 Ohio App. 3d 1 -- North Carolina v. Pearce (1969), 395 U.S. 711 creates a presumption of vindictiveness when a greater sentence is imposed following a successful appeal or other postconviction relief. To overcome the presumption the court must make affirmative findings on the record regarding conduct or events discovered after the initial sentence was imposed, demonstrating that the defendant was not punished for exercising his rights. Pearce does not apply when the new sentence does not exceed the old, despite reversal on some counts because an Ohio court did not have jurisdiction to tray rapes committed in Kentucky. Court endorses the view that a sentence is to be viewed as a package and court may consider the overall situation at resentencing.

State v. Gonzales, 151 Ohio App. 3d 160, 2002-Ohio-4937, ¶64-65 -- The presumption of vindictiveness that exists when a harsher sentence is imposed following retrial does not apply when the retrial includes additional counts or is in front of a different judge.

State v. Smith, 168 Ohio App. 3d 141, 2006-Ohio-3720, ¶75-82 -- Prior conviction was reversed because the defendant was denied his right to self-representation. This nullifies the results of the prior trial, including the merger of felonious assault counts. Only if the defendant had been acquitted of those crimes would retrial be barred. With respect to a single victim the cumulative punishment prong of the Double Jeopardy Clause does not preclude consecutive sentences for counts of felonious assault premised on serious physical harm and the use of a deadly weapon. ¶85: There is no presumption of vindictiveness when resentencing following a second conviction is done by a different judge.

Burks v. United States (1977), 437 U.S. 1 -- Double jeopardy does not bar retrial based on trial error. It does bar retrial when reversal is because the evidence was insufficient. Also see United States v. Scott (1978), 437 U.S. 82, 87-92; Greene v. Massey (1978), 437 U.S. 19.

Tibbs v. Florida (1982), 457 U.S. 31 -- Double jeopardy bars retrial when a case is reversed because the evidence is insufficient, but not when reversal is because conviction is against the manifest weight of the evidence. Also see State v. Thompkins (1997), 78 Ohio St. 3d 380, 386-389.

Lockhart v. Nelson (1988), 488 U.S. 33 -- Retrial is not barred merely because the evidence is insufficient once erroneously admitted evidence is discounted. Sufficiency is determined based on the sum of the evidence before the trial court.

Justices of Boston Municipal Court v. Lydon (1984), 466 U.S. 294 -- In some misdemeanor cases Massachusetts law allows trial de novo to a jury following a conviction at a bench trial. This corresponds to Ohio practice following conviction in a Mayor's Court. Held that trial de novo is not barred by jeopardy even if evidence at initial bench trial was insufficient.

Hudson v. Louisiana (1981), 450 U.S. 40 -- Retrial is barred if the court grants a motion for a new trial based on the insufficiency of the evidence.

Montana v. Hall (1987), 481 U.S. 400 , 404 -- "...(T)he Constitution permits retrial after a conviction is reversed because of a defect in the charging instrument." Also see Oakwook v. Ramnath (1987), 35 Ohio App. 3d 156.

Monge v. California (1998), 524 U.S. 721 -- Double Jeopardy does not bar retrial on sentencing issues in a non capital case. Issue arose under California's three strikes law.

State v. Sage (1987), 31 Ohio St. 3d 173 -- Paragraph three of the syllabus: "Double jeopardy principles do not bar retrial where an appellate court reverses a conviction based upon prosecutorial misconduct when such conduct was not calculated to goad the defense into seeking a mistrial."

Price v. Georgia (1970), 398 U.S. 323 -- When a defendant has been found guilty of a lesser-included offense and that conviction is reversed on appeal, be may be retried on the lesser offense, but not on the original charge. Also see Green v. United States (1957), 355 U.S. 184.

Poland v. Arizona (1986), 476 U.S. 147 -- Where the death penalty has been erroneously imposed, but the issue of sufficiency of proof has not been conclusively resolved against the state, the death penalty may again be considered at a subsequent sentencing hearing.

Bullington v. Missouri (1981), 451 U.S. 430 -- Where sentence at a death penalty trial is determined in proceedings resembling a trial and the defendant has not been sentenced to death, this has the effect of an acquittal on that issue. In the event his conviction is reversed and a new trial results, he will not face the death penalty. Also see Arizona v. Rumsey (1984), 467 U.S. 207.

State v. Soke (1995), 105 Ohio App. 3d 226, 256-259 -- When case was tried to a three judge panel, defendant was given a life sentence. Following reversal and retrial to a jury, the sentence was death. Double jeopardy violation found.

North Carolina v. Pearce (1969), 395 U.S. 711 -- (1) The Double Jeopardy Clause does not bar imposition of an increased sentence upon conviction at a retrial, though it is a violation of due process for an increased sentence to be the product of vindictiveness. (2) The Double Jeopardy Clause does require that any punishment imposed as a result of the first conviction be fully credited against the subsequent sentence.

Pennsylvania v. Goldhammer (1985), 474 U.S. 28 -- Where court of appeals has reversed conviction on which sentence was imposed, court may proceed to impose sentence on counts as to which imposition of sentence had previously been suspended.

State v. Hamilton (1994), 97 Ohio App. 3d 648 -- At arraignment the defendant entered a no contest plea. The judge found him not guilty, stating that the arresting officer was without authority to search the defendant's vehicle. It was error to in effect suppress evidence and proceed to judgment without allowing the prosecutor an opportunity to appeal on the suppression issue. Nonetheless, double jeopardy bars further proceedings against the defendant.

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