291 P.3d 106
Mont.2012Background
- Duncan's second appeal challenges the district court's denial of his motion to dismiss re prosecution after postconviction relief.
- The prior direct appeal affirmed Duncan's convictions for two counts of felony sexual assault, and remanded for resentencing; later, postconviction relief was granted for ineffective assistance and prosecutorial misconduct.
- District court vacated the guilty verdicts and granted a new trial; state intended to prosecute again.
- Duncan moved to dismiss citing double jeopardy under Oregon v. Kennedy; the court denied.
- Montana statute 46-11-505(2) allows reprosecution when a prior conviction is held invalid in a postconviction proceeding; Duncan's challenge centers on this provision and double jeopardy protections.
- The Montana Supreme Court held that reprosecution is permissible under §46-11-505(2) and declined to extend Kennedy to postconviction reversals; the case is remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does double jeopardy bar reprosecution after postconviction relief for prosecutorial misconduct? | Duncan urges Kennedy/Mallak extension to postconviction reversals. | State argues Kennedy not extended to postconviction context; statute allows reprosecution. | No; reprosecution allowed under §46-11-505(2). |
| Should the Kennedy goad-the-defendant exception apply when conviction is overturned on postconviction relief? | Duncan contends Kennedy should apply to postconviction reversals. | State argues Kennedy framework does not apply here. | Not adopted; court declines extension of Kennedy. |
Key Cases Cited
- Oregon v. Kennedy, 456 U.S. 667 (1982) (goaded into mistrial exception not extended to postconviction reversals)
- State v. Mallak, 326 Mont. 165, 109 P.3d 209 (2005 MT) (mistrial-based double jeopardy exception)
- State ex rel. Nelson v. Ellsworth, 141 Mont. 78, 375 P.2d 316 (1962) (retrial after conviction reversed on appeal not barred)
- DiFrancesco, 449 U.S. 117 (1981) (double jeopardy and re prosecution after reversal; cautions against oppression)
- U.S. v. Tateo, 377 U.S. 463 (1964) (context of prosecutorial misconduct and remedy)