The Fifth Amendment to the United States Constitution declares, “No person shall… be subject for the same offense to be twice put in jeopardy of life or limb….” The phrase “twice put in jeopardy” — or “double jeopardy” means being tried or punished twice for the same offense. In other words, if a defendant receives a state criminal conviction for violent crimes they committed in Florida, then it’s possible for the defendant to assert a double jeopardy defense.
While the constitutional protections against double jeopardy look great on paper, they are much more narrow in practice — and vary a little bit from state to state. For instance, if a defendant commits a repeat crime in Florida that is punishable on a federal level (such as the distribution of narcotics), then that violates both state and federal law. In this case, double jeopardy would not protect the defendant from being prosecuted by both the State of Florida and the United States government.
This is called the “dual sovereignty” doctrine, with the sovereign powers here pertaining to the state and federal government. In essence, what double jeopardy actually protects against is a second prosecution for the same crime by the same government. It does not protect against a civil lawsuit for the crime (as in the O.J. Simpson trials), nor does it protect defendants from being charged with multiple crimes for the same incident. For instance, a defendant may be charged with a DUI and vehicular homicide as the result of the same car accident. To ensure that all of a defendant’s constitutional rights are protected, it’s crucial to contact an experienced criminal defense lawyer immediately.
Definition & Application
Definition of Double Jeopardy
In practice, double jeopardy is a procedural defense to criminal prosecution that protects you from double prosecution or punishment for the same crime within the same jurisdiction. The law can not subject you to trial for the same crime after an acquittal or conviction, or receive more than one punishment for one crime.
The constitution offers protection from double jeopardy for several reasons:
- To stop the government from using its authority to convict innocent persons wrongly.
- To protect people from financial and emotional damage caused by multiple prosecutions.
- To prevent the government from overlooking jury decisions it did not like.
- To restrict the government from giving exceedingly harsh charges against a defendant.
In essence, the framers of the constitution were trying to regulate how the government used its power and authority to get what attorneys call the ‘second bite of the apple.’ Double jeopardy applies in both felony and misdemeanor criminal cases. However, it is not applicable in civil or administrative proceedings. Therefore, whether or not acquitted of the crime, you are not immune to civil lawsuits for damages caused by that particular crime.
Application of Double Jeopardy
As mentioned earlier, double jeopardy applies to a criminal case only. However, it prohibits multiple prosecutions for the same offense and can be held as a valid defense when:
- An individual has been charged with a crime. According to the General Clauses Act of 1897, the term offense is described as any act or omission that is criminal under the law in force at the time.
- An investigation or proceeding has occurred before a court or a judicial tribunal.
- A person has been arrested and punished in the process prior.
- The offense in question is the same as the one for which one was previously convicted and sentenced.
Generally, the Double Jeopardy Clause of the Fifth Amendment applies to any proceeding in Florida whose goal is to serve punishment. This is withstanding whether the prosecution occurs at the State or Federal level. Other than in a civil lawsuit, jeopardy will also not apply if the defendant is yet to be put in jeopardy. This means that you cannot use double jeopardy as a defense until you are tried first. After trial, the jury is called in, and that is when jeopardy begins or attaches to the case. Additionally, the case must come to a close before a defendant can use the double jeopardy doctrine.
When Jeopardy Reaches “Attachment”
Double jeopardy does not apply until jeopardy has “attached.” Attachment happens when the case proceedings have progressed to a point where your double jeopardy rights are being implicated. You can show up to trial several times, but until the attachment of jeopardy, no constitutional violation has occurred, and you cannot bar retrial. According to courts, jeopardy attaches at the following stages of a criminal proceeding:
- In a jury trial, after the jury is sworn in.
- In a bench trial (where only the judge listens to the case, without a jury), after the first witness is sworn in.
- In a plea agreement, after the court accepts the plea.
The rule is that once jeopardy attaches, the prosecution cannot retry you for the same case. This applies even after the prosecution claims to have found new evidence on the case after you have been acquitted or accepted a plea.
- It helps to remember that double jeopardy does not apply immediately after arrest, but at a certain point of the criminal proceeding — as indicated in the above scenarios. For example, if you are arrested and released on the grounds of insufficient or lack of evidence, jeopardy has yet to attach, and you can be re-arrested in light of new evidence. The same thing applies to an indictment that is later dismissed. However, you cannot be retried for the same case once jeopardy attaches, even if the prosecution gets new evidence.
Multiple Prosecutions for the Same Offense
There are cases where a crime provides a basis for prosecuting and punishing a defendant for multiple offenses. The court will have to consider if the offenses are distinct and separate from warranting multiple punishments, one for each of the offenses. If the offenses are not distinguishable and stem from the same crime, the double jeopardy principles apply to prevent multiple prosecutions.
- Florida and federal courts use the ”blockburger” or ”same elements” tests to determine if two offenses arising from the same crime are ”separate.” The ”blockburger” test asks if each offense contains a unique element from the others. If not, then the offenses are considered ”same offense,” and double jeopardy applies.
Jeopardy as to “Lesser Included” Offense
If a defendant is tried and convicted of a lesser offense, double jeopardy prevents the prosecution for a greater offense arising from the same crime. For instance, if a defendant is tried and convicted for reckless driving, double jeopardy will not allow the prosecution of another trial on the grounds of homicide as vehicular homicide if the alleged homicide was due to the same crime.
The argument is that reckless driving is a lesser offense of vehicular homicide for which the defendant is already in ‘jeopardy.’ The same case applies when a defendant is tried and convicted for second-degree murder; they cannot later be charged with first-degree murder.
Jeopardy as to “Greater” Offense
In situations where a defendant cannot be convicted of a greater crime without conviction of a lesser crime, the double jeopardy rule stops the prosecution of the lesser crime after being convicted of the greater one. So, for example, if you are convicted of capital murder during a robbery incident, you cannot be charged with robbery relating to the same criminal trial after that.
Attorney for Double Jeopardy Defenses in Tampa, Florida | Mike G Law
When facing criminal charges, you must get the assistance of a lawyer as soon as possible to ensure the best chances for your defense. Our skilled team is prepared to fight aggressively to protect your rights in Tampa, Florida. Contact us and book your free consultation with Mike G Law today.