Lewis v. Warner

DISPOSITION

Reversed and remanded with directions judgment

to enter N.O.V. in favor of St.

Paul. GERBER,

CLABORNE, P.J., J.,

concur. LEWIS, Petitioner, Dudley

Robert WARNER, a

The Honorable Nanette

Judge Superior Arizona, County Pima, Re

State

spondent, Arizona, Real STATE

Party in Interest. 90-0117.

No. CA-SA Appeals of

Court of 2, Department B.

Division

Sept. for Review Denied

Petition Jan. Kettlewell, County Public A. Pima

Susan Lerch, Tucson, peti- Kevin Defender tioner. Atty. by Neely, Pima Co.

Stephen D. Shovlin, Tucson, par- for real M. Catherine in interest. ty 28-1203, a class 2 Pursu- OPINION misdemeanor. § prosecutor’s in ant to the recommendation HOWARD, Judge. petitioner ordered agreement, the was to special This action from was taken remaining charges, fine pay a $110 denying petitioner’s the trial court’s order including felony, the were dismissed. motion to dismiss. The double grand jury the indicted Also on March presented out applica issue arises of the petitioner charge driving while Supreme tion of the United States Court’s intoxicating liquor under the influence of — Grady Corbin, in recent decision suspended. while his license was A.R.S. U.S.-, 28-692.02. § (1990). is a Because this matter of state upon legal concern entirely wide and turns 3, petitioner a July On filed motion to principles rather than controverted issues felony grounds. charge on two dismiss the fact, accept jurisdiction. University we First, petitioner argued felony the that Arizona Health Sciences Center v. Su previ- he should dismissed because had be Court, perior 136 Ariz. ously pled guilty to the misdemeanor below, (1983). For the reasons set forth driving license, suspended on a however, relief. deny we States, relying Blockburger on v. United are undisputed. essential facts On 76 L.Ed. 306 20,1990, Department March of Public Safe- Second, that, petitioner argued un- ty petitioner Officer Hernandez observed the der state was Grady driving weaving his lane vehicle and from introducing from evidence of the petitioner lane. to pulling to After over change any prosecution unsafe in lane road, side of the Officer Hernandez driving the lesser-included offense of while petitioner that signs noticed exhibited intoxicating liquor under influence of subsequent intoxilyzer intoxication. A test “prose- had been petitioner already because .224 indicated a blood alcohol content of justice cuted” for that conduct in peti- percent. The officer also learned that granted The trial court suspended license on tioner’s had contention, finding motion as to the first March 1988. felony charge that for the Petitioner with was arrested barred the lesser-in- driving while under the influence of intoxi- cluded offense. The court denied the mo- cating liquor his suspend- license was tion, however, issue, Grady ap- to the ed, a in felony, class 5 violation of A.R.S. 2 concluding parently that also 28-692.02. He was issued citations § attach of unsafe 1) driving suspended a on license because it is denominated a misdemeanor), (A.R.S. 28-473, a class § than civil rather a criminal offense and 2) making (A.R.S. an unsafe lane because dismissal offense), 3) civil traffic use § prosecu- ment did not constitute a formal (A.R.S. 28-326(B)(l), plates fictitious § meaning jeop- double tion within misdemeanor), 4) and' class noncurrent ardy special This action followed. clause. (A.R.S. 28-326(C), registration a civil § Although advanced a offense). 30,1 pursuant March traffic On grounds resolving different number of plea agreement, petitioner entered a matter, question one only this we find that on a need is a suspended license in violation of A.R.S. be addressed: petitioner’s entirely on How- is not clear both reflect ever, incarceration. record our is not relevant to decision. point, appears his this fact it that this appearance felony charge on initial on custody entry 21 and that he has remained in court’s minute is not included March The trial However, the state that date of his arrest in the record before us. on through disagree petition petitioner’s with character- the date this was filed. ruling. ization of the trial court’s court orders of March 23 and March poses are dismissed3 of the double clause. plea agreement, such Supply United States v. Martin Linen encompassed by evidence of conduct Co., 1354- charges may used not be in a subse- the Court quent prosecution establish to an essential stated: of element another offense? emphasized have that what consti- [W]e against protection The constitutional dou- “acquittal” an is not to be con- tutes jeopardy is ble threefold: judge’s by trolled the form of the action. protects against prosecution It a second Rather, must we de- [Citations omitted.] the same acquittal. for offense after It ruling judge, the termine whether against prosecution protects a second label, actually represents whatever its a the same offense after conviction. And resolution, not, correct or of some or all protects against multiple punishments it of the of the offense elements factual for the same offense. charged. Pearce, 711, North Carolina v. U.S. (Emphasis supplied.) 717, 2076, 656, Supreme the has not Court ad- (1969) omitted). (footnotes 664-665 As the us, precise it dressed the issue before has Johnson, Supreme Court noted in Ohio analyzed significance charges the of dis- guilty plea proceedings missed the (1984): L.Ed.2d the double clause. context of following acquittal to or bar retrial [T]he Johnson, supra, Ohio v. the defendant was conviction ensures that the State does subject charging the of an indictment mur- repeated attempts not make to convict an der, involuntary manslaughter, aggravated individual, thereby exposing him to con- grand arraign- robbery and theft. At his embarrassment, anxiety, tinued and ex- ment, objection, the state’s the over trial pense, increasing while the an risk of accepted guilty plea the defendant’s impermissibly erroneous or an conviction to of involun- the lesser-included offenses enhanced sentence. tary manslaughter and theft and grand dis- inquiry, necessarily, The first is remaining charges missed the on double prior to whether has attached the jeopardy grounds. Supreme The Court regard, In that the has preclude held that double attach, not “jeopardy stated that does and prosecuting the state prohibition can no the constitutional charges greater on the in the indictment. ‘put application, until defendant is to trial exposed not Respondent has con- facts, the trier of whether the trier before ” plead- he viction on to which or a jury judge.’ be a v. United Serfass guilty, ed nor the State had the not States, opportunity to its evidence and marshal (1975).5 hone more than once or to its resources case, present because the presentation through its case trial. neither of the unsafe lane convicted therefor, acceptance guilty plea of a to lesser charge punishment subject nor offenses included issue is whether the dismissal of the greater pending, more- charge “acquittal” pur- offenses remain serves as an Blockburger ap- is order indi- 4. No contention made that Since the court’s otherwise, presumed plies must prevent cate the dismissal be of the misdemeanor prejudice. without See Ariz.R.Crim.P. 16.- to be DUI. 5(d), Accordingly, A.R.S. we do address not preju- issue of the of a dismissal with effect acceptance 5. Of course the Moreover, have not dice. since finding guilt pursuant is to such question before either the trial court raised the equivalent Smith of a trial. See functional court, the use or this we do not decide whether District, Municipal Judicial Court Western in a of evidence the unsafe Costa, Cal.Rptr. County Contra subsequent prosecution violates the Cal.App.3d 151 agreement. over, implications has none of the of an trier of fact refused to convict him on “implied acquittal” results from a given none was convicting verdict a defendant on lesser finding choice him on ei- between included offenses jury rendered [simple robbery]. ther that or greater to consider both judge prosecutor and had the lesser included offenses. omit- [Citations options accepting rejecting sole or simply There has been none of the ted.] charge. By accepting on the lesser governmental overreaching that double it, made, explicit no determination was supposed prevent. is On the implicit, on the merits of the hand, ending prosecution other now plea. embraced in the There was no deny right would the State to one full its A implicit acquittal. plea to a lesser opportunity and fair to convict those who charge necessarily deprives the court of have violated its laws. opportunity greater an to consider the Johnson, v. Ohio 467 at 104 charge.

S. Ct. at 81 L.Ed.2d at 435. succinctly, 402 So.2d at 632. More a dis- Other courts which have addressed the charges following guilty missal of other issue have concluded that dismissal of plea “in way to one no indicate[s] trial, charges prior part as of a United that the defendant innocent.” was otherwise, agreement operate v. Myles, States F.Supp. 430 at 101. Such acquittal preclude pros as an so as to later a dismissal cannot therefore be considered ground jeopardy. ecution on the of double acquittal purposes an jeopar- of double Estelle, (5th Lowery v. 696 F.2d 333 Cir. dy. Barker, 1983); United States v. 681 F.2d case, In present the unsafe lane (9th Cir.1982); United States v. John pursuant citation was dismissed son, (4th Cir.1976); United 537 F.2d 1170 petitioner’s plea agreement with the state. Williams, (8th States Cir. nothing suggest, There is in the record to 1976); Myles, United States v. F.Supp. contend, accept nor do the that in aff'd, (D.D.C.1977), (D.C. F.2d ing petitioner’s plea guilty Boudreaux, Cir.1978); State v. 402 So.2d any any court heard evidence or made fac Ward, (La.1981); Commonwealth v. tual respect determinations with to the cert. 493 Pa. 425 A.2d 401 change charge. merits of the unsafe lane denied, v. Pennsylvania, Ward 451 U.S. Accordingly, the dismissal was not an ac (1981).6 68 L.Ed.2d 354 quittal of that The common thread of these decisions is proceedings attach to the with finding that the dismissal of respect charge. to that presentation involved neither the any Grady any findings evidence nor factual as Su- charges. to the merits of those As the preme Jeopar- Court held that “the Double Boudreaux, supra: court stated in State v. dy any subsequent prosecution Clause bars in not, government, which the an establish defendant at bar was in the [T]he essential element of an offense proceedings in which his [to prosecution, prove that conduct simple robbery] accepted, was in direct will that peril being punished constitutes an offense for which the defen- convicted and - robbery]. already prosecuted.” dant been He was not forced to has [armed charge. at-, gauntlet” “run the on that No U.S. 110 S.Ct. at informations, only original 6. The decision we have found to the con- offenses as the State, pled guilty trary is Mason v. 302 Md. 488 A.2d defendant to one identical to case, pled In that the defendant had one agreement. appellate guilty to one count of a four-count information reversed this conviction, finding exchange a double violation. for the state’s to enter prosequi remaining conduct no doubt constituted nolle counts and While the state’s plea agreement, and therefore due three counts in a second information. The state breach of the process, covering agree prose- that the second then obtained a nine-count indictment we cannot jeopardy. period at one the same cution violated double the same least pled he had acts to which holding presupposes that the cause the same at 564. This basis for already prosecuted, guilty constituted the been at-, is, charges. the new acquitted, punished convicted or L.Ed.2d at 565-566. Grady, S.Ct. at prior a result proving con- prohibited from the state was cited for Lewis was On March previous- for which the defendant duct license, unsafe lane driving suspended on a plea. guilty ly convicted been having a current license change, and not however, precluded, The state was not against complaint also filed plate. A was the ex- the defendant to prosecuting from DUI, arising alleg- from felony Lewis for for which rely it could on conduct tent that edly committing the offense of DUI already prose- had not been the defendant suspended. March On his license Corbin, supra. Grady v. cuted. Lewis entered case, petitioner has not In this because and the ad- suspended on a license alleged prosecuted for the unsafe unsafe lane ditional require that the change, Grady does not plate were having a current license offering evidence state be day, in- That same Lewis was dismissed. charge to in that of the conduct involved suspended license. for DUI on a dicted of the misdemeanor prove the elements now seeks to introduce evidence The state Ac- driving while intoxicated. charge of prove DUI. Lewis’ unsafe lane did not err cordingly, the trial court jeopardy to criminal Clearly attaches on petitioner’s motion to dismiss denying pled charges to which a defendant ground. this Ly v. guilty. Grady, supra; Fransaw Relief denied. Cir.1987), 518, (5th 523 naugh, 810 F.2d 3237, 1008, denied, 483 U.S. 107 S.Ct. cert. FERNANDEZ, C.J., concurs. (1987); Superi v. 742 Williams 497, 209, 210, Court, P.2d 130 Ariz. 635 ROLL, dissenting. Presiding Judge, (1981). here is question presented 498 dissent. respectfully I also attaches to jeopardy whether whether, in a us is The issue before plea to a dismissed DUI, may intro- for the state prosecution majority main agreement. violations duce evidence prosecution of a defendant tains that plea in a disposed of plea charges dismissed upon jeopardy agreement. Based double jeopardy agreement is not barred double and the recent decision considerations considerations, upon by relied the cases U.S.-, 110 S.Ct. 495 Grady v. inapposite to the matter majority are (1990), 2084, I believe the 109 L.Ed.2d 548 upon relied us. The cases presented before is no. answer agree majority all involved by the either vacated or with ments which were cited for the defendant was Grady, Estelle, 333 696 F.2d Lowery v. medi- drawn. failing keep right of the and DUI Cir.1983) (first (5th conviction under charges. He pled guilty to these an. He aside); v. set United States manslaugh- agreement reckless indicted for was later Cir.1982) (9th (plea Barker, homicide, 681 F.2d 589 ter, negligent criminally aside); States v. set United state’s assault. The degree reckless third (4th Cir.1976)(plea Johnson, 537 F.2d 1170 for a request to the defendant’s response v. appeal); States United vacated showed that basis particulars bill Cir.1976), (8th cert. Williams, homicide, and assault manslaughter, 255, 894, denied, driving, 429 U.S. drunk the defendant’s (1976) (first under conviction median, L.Ed.2d he was left of the fact that aside); States agreement set United majority of the Su- speed. A excessive (D.D.C.1977), F.Supp. 98 Myles, v. double held that the preme Court (D.C.Cir.1978) (plea F.2d 161 aff'd, consti- the fifth amendment clause of Boudreaux, withdrawn); State of Corbin be- prosecution tution barred (La.1981) vacated); So.2d 629 Com (plea attached; because no may be Ward, monwealth v. 493 Pa. 425 A.2d plea agreement). breach of denied, cert. 451 U.S. prove The state seeks to (1981) (plea 68 L.Ed.2d 354 chal driving under the by introducing influence lenged and reversed on appeal). evidence that Lewis made an unsafe lane change. plea agreement Because When a defendant moves to withdraw his Lewis in as to that con- guilty plea he waives the double duct, the state cannot introduce evidence of defense if his accepted by motion is prosecu- unsafe lane in Lewis’ Superior Court, Lombrano v. court. tion for DUI. (1980). Ariz. defendant must enter a new proceed

ment or to trial. See Santobello v. York,

New 263 n. 499 n. 433 n. 2 802 P.2d 1058 essence, TAYLOR, Petitioner, John Hubert defense return positions to their prior to

entry of the plea agreement. vacated SHERRILL, The Honorable William This case does not involve a vacated or Judge Superior plea agreement, withdrawn but rather a Pima, County State of Re agreement, valid accepted by the court. spondent. The state is attempting now to utilize a proof of an essential element of charge. the DUI Whether this Arizona, The STATE of Real would permissible have been prior to Gra- Party in Interest. dy is irrelevant. I precluded believe it is Nos. 2 CA-SA by Grady. CA-CR 90-0399-PR. Superior Court, Williams v. Appeals Court of pled guilty Williams to lewd and lascivious 2, Department Division B. exchange acts in rape dismissal of sodomy charges. He appear failed to Sept. court for sentencing. When Williams was Petition for Review Granted apprehended, although plea agreement part part and Denied in accepted by the trial Jan. court, the trial court set aside the and ordered a trial on all charges. supreme court held that the

trial acceptance court’s of the court,

ment over Williams’

objection, rejecting thereafter

plea agreement. The court stated that “ac-

ceptance plea agreement by the trial in jeopardy____” Id. at 635 P.2d at 498. See Ariz. State,

Mason v. 302 Md. 488 A.2d 955 (double

(1985) barred which was the same crime dis- but plea agreement);

missed to a

see Vaughan, United States v. (9th Cir.1983) (dismissal plea agreement no bar to

subsequent prosecution of

Case Details

Case Name: Lewis v. Warner

Court Name: Court of Appeals of Arizona

Date Published: Sep 4, 1990

Citation: 802 P.2d 1053

Docket Number: 2 CA-SA 90-0117

Court Abbreviation: Ariz. Ct. App.