Rivera v. Ohio
459 U.S. 957
SCOTUS
1982
Check Treatment

*1 No. 82-211. Borton Parcel Inc. Service, United denied. C. A. 7th Cir. Certiorari Justice Blackmun grant certiorari. App. Div., New York v. Willette. respondent Dept. for leave to Motion Y., Ct. N. Jud. granted. proceed pauperis denied. Certiorari forma Cuyahoga Ohio, Rivera Ohio. County. denied. Certiorari Brennan, with whom Justice Marshall joins, August was arrested on

Petitioner Kelley reported petitioner had Francis J. taken his mo- torcycle point day, along him knife earlier that with motorcycle August title to the and some cash. On two Cuyahoga County grand jury later, weeks handed down a charging petitioner one-count indictment sto- appeared following Septem- len Petitioner on the pleaded guilty charge, ber to the received sentence. grand jury Then, on October returned second indict- charged petitioner property, ment that aggravated robbery, a witness. The re- upon counts were based Kelley’s belongings same theft of Mr. for which been convicted. moved Petitioner to dismiss the ground second indictment on the that it violated the Double the Fifth Amendment States under the Fourteenth Amendment. The trial court dismissed the the second indictment at the request, State’s but overruled motion to dismiss remaining counts. interlocutory judge Petitioner appeal. took an With one dissenting, Appeals, Eighth the Ohio Court of District, af- ruling. firmed the trial court’s It held: robbery charges raise *2 and “The intimidation aggravated [T]he jeopardy . rob- . . issue. no double duplicate, implicates allied bery not a . .. offense. only if the arise defend- issue will offense allied

“The robbery. may guilty He be is found ant for be cannot tried, but property acquired receiving for (1976), Geiger 45 St. Maumee v. Ohio offense, theft assigned Accordingly, is the error 238, for 17-18. to Pet. Cert. merit.” Supreme motion for Court overruled The Ohio petition appeal, this followed. leave to jurisdiction judgments review final state We pretrial denying an in- motion dismiss courts defendant’s grounds. Washing- Harris v. dictment on former (1971); Abney 431 ton, States, 404 U. S. 56 see v. United 55, (1977). petition grant I 651, U. 656-661 for S. argument. the case for The Double certiorari and set oral Jeopardy prohibits “a for the second conviction,” v. Pearce, offense after North Carolina 395 (1969), pro- 711, 717 and I this U. S. adhere the view that prosecute requires proceeding hibition States to “all charges against grow single a defendant that out of a episode, act, occurrence, or transaction.” Ashe v. (1970) Swenson, 397 U. S. J., con- (BRENNAN, (1982) curring); see Brooks v. Oklahoma, 456 999 U. S. dissenting certiorari); Thomp- J., from denial of (Brennan, (1977) son v. 429 Oklahoma, U. J., S. 1053 dis- (Brennan, senting certiorari), from denial of and cases cited therein. aggravated robbery manifestly Petitioner’s indictment for supporting arose from the selfsame criminal act his earlier receiving excep- None of the my opinion tions discussed in in Ashe v. Swenson, n. prose- n. 11, excuse the State’s failure to

[959] single proceeding.1 cute in a I therefore conclude trying petitioner aggravated robbery charge on an receiving charge has been convicted and sentenced Jeopardy violates the Double Clause as States.2 any requires proof addition,

In offense that of all the facts to obtain a conviction for is the “same of- purposes fense” as of the Double (1980); Clause. See Illinois v. Vitale, 447 U. (1977); Brown Ohio, 432 U. S. 161 cf. Harris v. Oklahoma, In Ohio, U. S. crime complete person disposes if a retains of the *3 knowing having of another or reason to believe that acquired through it was theft. See Ohio Rev. Code Ann. §2913.51 Aggravated robbery is defined as the use weapon of a or the infliction of harm in the of course commit- ting, attempting, fleeing or after one of a series of “theft of- by including receiving goods. fenses” defined statute, stolen 2913.01(K). petitioner §§2911.01, See Thus, to of convict aggravated robbery prosecution, in the current the State prove must that he committed a As the “theft offense.” implicitly recognized, petitioner court below cannot be re- tried for stolen Vitale, See Illinois v. supra. allegations Yet, on the in the out- indictment now standing, prove petitioner the State will be unable to committed the same at authority Nor does the by Appeals support cited its Ohio Court holding. It stands merely for could proposition the correct that the State prosecuted petitioner time, long as charges at the only was convicted of one. express

2 1 opinion no propriety indicting petitioner as to the telephone charge witness. The from a intimidation stems call allegedly threatening Kel shortly made Mr. after his arrest ley with prosecuting peti retribution cooperate police should he in with the peti tioner. It arguably thus relates to transaction between tioner and Kelley separate Mr. at from the theft issue aggravated robbery charges. of Mr. disposed Kelley’s property or that he retained

time by pros- it obtained theft.3 Since that was knowledge re- robbery will therefore for ecuting peti- fact every to prove the State quire he has on which charge goods, tioner of current violates been Illinois v. See Clause. Double Jeopardy (Stevens, J., dissenting). Georgia Zant, Warden, Strickland Diagnostic Center. Ct. Super. and Classification Ga., County; Butts Florida. Fla. Hitchcock 82-5305, No. 413 So. below: Reported

Certiorari denied. Marshall, Brennan and Justice is in all cir- that the death penalty our views Adhering unusual prohibited cumstances cruel and punishment §2913.01(K), re besides All three of the “theft offenses” listed itself, arguably relevant to are not even instance, burglary, tampering charged crime. For he has not been events, officer, sports machines, impersonating corrupting with coin possibilities all of which “theft offenses.” The three relevant constitute law, only are and unauthorized use. As a matter of *4 robbery on the basis of way petitioner could have committed committing receiving stolen these crimes without also the crime of use, merely if attempted would be he had or unauthorized actually at obtaining property. But there no such without another’s tempt allegation case, possession of some of in this was in when he was arrested. in Illi- The in this case before the Court situation is different nois in Vitale found that the 447 U. The Court manslaugh- might conceivably prove State the crime of reckless vehicular resorting supported earlier ter without Vitale’s same facts that collision, failing it allowed the speed to reduce avoid a challenge if proceed subject to a later double case, the can- speed. State in fact State relied failure to reduce In this conceivably not

facts sufficient obtain a conviction for