Amy Brasfield Marlow v. Joseph Charles Marlow
563 S.W.3d 876
Tenn. Ct. App.2018Background
- Amy Marlow (Mother) filed Petition 1 alleging Father violated the parenting plan by making derogatory communications; after a three‑day trial the court convicted Father of 60 counts of criminal contempt and sentenced him to concurrent/suspended jail time.
- One alleged text (10:11 a.m. June 20, 2015) was acquitted at the October 2015 trial; five other June 20 texts were among convictions.
- Mother filed Petition 2 with 133 contempt counts; the parties submitted an agreed order in May 2016 in which Father purportedly pled guilty to 10 unspecified counts and Mother agreed to dismiss the rest and to other concessions; the court approved the order but did not conduct a Rule 11 plea colloquy.
- Mother later filed Petition 3 (13 counts). Father moved to set aside most convictions from Petition 1 (Rule 42(b) notice defects) and to vacate the May 2016 plea (Rule 11(b) procedural defect).
- The trial court vacated 55 of the 60 original convictions for defective notice but, erroneously, re‑adjudicated contempt as to the previously acquitted 10:11 a.m. text; it also set aside Father’s guilty plea to the 10 unspecified counts for lack of Rule 11(b) colloquy but allowed Mother to re‑prosecute the 133 counts in Petition 2 and continued to enforce other provisions of the May 2016 agreed order.
- On interlocutory appeal, the Court of Appeals held the conviction for the 10:11 a.m. text violated double jeopardy and must be vacated; it also held double jeopardy did not bar prosecution of Petition 2 because (1) the plea was set aside on procedural (not insufficiency) grounds and (2) the plea did not identify the specific 10 counts, so jeopardy never attached to particular counts; but the court ruled that non‑plea provisions of the May 2016 order could not be enforced after the plea was set aside because the agreement was a conditional contract whose approval was rescinded.
Issues
| Issue | Plaintiff's Argument (Mother) | Defendant's Argument (Marlow) | Held |
|---|---|---|---|
| Whether re‑adjudicating contempt for the 10:11 a.m. text (previously acquitted) violates double jeopardy | Mother concedes this single contempt may be barred but sought affirmance of other rulings | Marlow: reconviction for an acquitted act violates double jeopardy | Court: Reconviction for the 10:11 a.m. text violated double jeopardy; vacated that conviction |
| Whether setting aside Father’s guilty plea to 10 unspecified counts bars reprosecution of Petition 2 under double jeopardy | Mother: plea was set aside for procedural error; double jeopardy does not bar reprosecution; plea did not identify specific counts so jeopardy never attached | Marlow: plea set‑aside equates to acquittal of those counts; double jeopardy bars reprosecution and related enforcement | Court: Because plea was vacated for procedural Rule 11(b) error (not insufficiency) and no specific counts were identified, jeopardy never attached; Mother may reprosecute the 133 counts |
| Whether remaining non‑plea provisions of the May 2016 agreed order remain enforceable against Father after plea vacatur | Mother: provisions are severable and enforceable despite plea vacatur | Marlow: the agreed order is a conditional contract; vacatur of the plea (condition precedent) voids the entire agreement | Court: Agreement was a conditional contract dependent on judicial acceptance; by rescinding approval the court nullified the contract, so the non‑plea provisions cannot be enforced against Father |
| Whether defective notice under Tenn. R. Crim. P. 42(b) invalidates convictions from Petition 1 | Mother: trial court originally specified communications; later argued sufficient proof existed for certain counts | Marlow: Rule 42(b) required specific notice of essential facts for each contempt count; lack of specificity violated due process | Court: Vacated 55 of 60 convictions for failure to plead essential facts; retained five properly pled counts (except the 10:11 a.m. one, which was vacated for double jeopardy) |
Key Cases Cited
- Baker v. State, 417 S.W.3d 428 (Tenn. 2013) (criminal contempt can implicate criminal‑defendant protections)
- Ahern v. Ahern, 15 S.W.3d 73 (Tenn. 2000) (double jeopardy applies to criminal contempt proceedings)
- State v. Watkins, 362 S.W.3d 530 (Tenn. 2012) (explaining double jeopardy protections and categories)
- Burks v. United States, 437 U.S. 1 (1978) (retrial permitted after reversal for trial error but barred after reversal for insufficiency)
- State v. Hutcherson, 790 S.W.2d 532 (Tenn. 1990) (applies Burks distinction to state law issues regarding retrial)
- State v. Howington, 907 S.W.2d 403 (Tenn. 1995) (plea agreements treated as contracts binding upon judicial acceptance)
- State v. Clark, 452 S.W.3d 268 (Tenn. 2014) (prosecution must elect particular offense to protect against double jeopardy)