Dissenting Opinion
dissenting.
Petitioner was indicted for murder in Alabama state court, convicted of second-degree murder after a jury trial, and sentenced to 25 years’ imprisonment. Thereafter, he was brought to trial on a separate indictment charging the additional offense of robbery arising out of the same episode, over his objection that this indictment violated the Double Jeopardy Clause. He was convicted after a second trial, and sentenced to- an additional term of 10 years’ imprisonment. On appeal, the Alabama Court of Appeals affirmed the robbery conviction, but ordered that the robbery sentence run concurrently with the sentence imposed for the murder conviction. 352 So. 2d 836 (1976). The Supreme Court of Alabama reversed the Court of Appeals’ determination as to sentencing, holding that because it found robbery and murder to be separate offenses for double jeopardy purposes, each offense could be the subject of a separate prosecution even if both crimes
I would grant the petition for certiorari and reverse the judgment of the Supreme Court of Alabama. I adhere to the view that the Double Jeopardy Clause of the Fifth Amendment, applied to the States through the Fourteenth Amendment, requires the prosecution in one proceeding, except in extremely limited circumstances not present here, of “all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction.” Ashe v. Swenson, 397 U. S. 436, 453-454 (1970) (Brennan, J., concurring). See Thompson v. Oklahoma, 429 U. S. 1053 (1977) (Brennan, J., dissenting), and cases collected therein.
Lead Opinion
Sup. Ct. Ala. Certiorari denied.