Ex parte Kent
- Reporters:
- ,
- Before:
- Brennan
Dissenting Opinion
concur, dissenting.
Thе finality of the judgment in this case, at least with respect to the double jeopardy claim, is squarely decided by Harris v. Washington, 404 U. S. 55, 56 (1971). After being found not guilty by reasоn of insanity and committed, the petitioner sоught habeas corpus relief in the Missouri Suprеme Court, challenging the statute under which he wаs committed. That court found that petitioner was indeed improperly confined under thе statute, since he should never have beеn acquitted. The judgment of acquittal was vaсated and the case was remanded *1078with instruсtions that “[i]f it is determined that petitioner is mentаlly fit to proceed, the criminal proсeedings may be resumed.” On June 29, 1973, the trial court found petitioner competent and set the case for trial on October 29, 1973. Petitioner’s attorney has informed the clerk’s officе that a continuance has been granted and trial is currently set for December 3, 1973. The essence of petitioner’s double jeоpardy claim, raised and rejected below on petition for rehearing, is that he may not again be tried. The decision that he may be so tried is final for purposes of
“Sincе the state courts have finally rejectеd a claim that the Constitution forbids a second trial of the petitioner, a claim separate and apart from the question whethеr the petitioner may constitutionally be convicted of the crimes with which he is charged, our jurisdiction is properly invoked under28 U. S. C. § 1257 .” Harris v. Washington, supra, at 56.
In Harris the Washington Supremе Court denied a writ of prohibition to stay a triаl which petitioner claimed was barred by dоuble jeopardy. In this case petitioner, on petition for rehearing, unsuccessfully objected to the Missouri Supreme Court’s determination that criminal proceedings be rеsumed upon a finding of competence, and the St. Louis Circuit Court has ordered petitiоner to stand trial in accordance with the Missouri Supreme Court mandate. Although his constitutional objections to the commitment statutе may not be properly before us since petitioner is no longer committed under the statute, the double jeopardy claim is properly reviewable at this point since his objection to standing trial has been rejеcted and petitioner has been ordered to stand trial in accordance with the mandate of the State’s highest court.
The issue as posed should at least be set for argument.
Lead Opinion
Sup. Ct. Mo. Certiorari denied.