State v. BoudreauxState v. Boudreaux
At approximately midnight on the night of June 27, 1978, one Cecil Drake, a casuаl
While imprisoned at Angola, dеfendant filed in the trial court an application for a writ of habeas corpus alleging that his guilty plea should be set aside for the reason that he was not informed of his right to confront witnesses against him and his right to compulsory process. The trial court denied thе writ. Subsequently, the defendant sought relief in this Court. Accordingly, on June 13, 1980, this Court granted defendant‘s writ, setting aside defendant‘s plea for the reason that he was not advised of his confrontation rights.
Defendant was thereafter returned from Angola to the trial court where, on July 15, 1980, he was rearraigned on the crime of armed robbery. At this time defendant entered a plea of “not guilty“. Subsequently, defendant filed a motion to quash on July 31, 1980. By this motion defendant claimed that rearraignment on armed robbery subjected him to double jeopardy. Defendant argued thе motion on August 25, 1980; on August 26, 1980, the motion was denied. The matter is now before this Court on a writ seeking review of the trial court‘s denial of the motion to quash.
Defendant argues that his guilty plea to simple robbery acted as an acquittal on the greater offense of armed robbery such that reinstatement of the armed robbery charge, after this Court vacated the simple robbery plea, twice placed him in jeopardy for the same offense. Defendant bases his argument on
“Art. 598. Effect of verdict of lesser offense
When a person is found guilty of a lesser degree of the offense charged, the verdict or judgment of the court is an acquittal of all greater offenses charged in the indictment and the defendant cannot thereafter be tried for those offenses on a new trial. Amended by Acts 1978, No. 133, § 1.”
Both the United States and the Louisianа Constitutions prohibit placing an accused twice in jeopardy for the same offense.
Every federal circuit court that has confronted this or a like question has ruled that the vacated plea does not act as an acquittal on thе greater offense, barring reprosecution. See, Hawk v. Berkemer, 610 F.2d 445 (6th Cir. 1979) (Plea bargain to murder with aggravated murder counts dismissed);1United States v. Williams, 534 F.2d 119 (8th Cir. 1976) (charged with aggravated bank robbery and plea bargained to lesser included offense of bank robbery); United States v. Anderson, 514 F.2d 583 (7th Cir. 1975) (indicted for armed robbery and plea bargained to lesser included offense of robbery); United States ex rel. Williams v. McMann, 436 F.2d 103 (2d Cir. 1980) (charged with felonious sale of narcotic drug and plea bargained to lesser included offense of attempted felonious sale); Ward v. Page, 424 F.2d 491 (10th Cir. 1970) (charged with first degree murder and plea to lesser included offense of first degree manslaughter); United States v. Myles, 430 F.2d 161 (D.C.Cir.1978) (plea bargained to one gambling offense and other gambling charges dismissed); See also, United States v. Johnson, 537 F.2d 1170 (4th Cir. 1976) (court suggests, without holding, that plea to two of four counts is not acquittal on remaining two).
In Hardwick v. Doolittle, 558 F.2d 292 (5th Cir. 1977), the Fifth Circuit was confronted with a case in which charges not originally brought against the aсcused were added at retrial. While the primary issue concerned alleged prosecutorial vindictiveness, see, Blackledge v. Perry, 417 U.S. 21, 99 S.Ct. 2098, 40 L.Ed.2d 628 (1974), the Court nonetheless noted that “a prosecutor may, without explanation, refile charges against a defendant whose bargained for guilty plea to a lesser charge has been withdrawn or overturned on appeal, provided that an increase in the charges is within the limits set by the original indictment.” 558 F.2d at 301. It is submitted that the quoted language demonstrates that the Fifth Circuit is in accord with the other noted Circuits: a vacated verdict on a plea to a lesser included offense does not bar prosecution on the greater offense.
The Circuits have reached consistent results but have done so employing varying techniques. In United States v. Anderson, supra, the 7th Circuit reasoned that the Government‘s acceptance of a plea is conditional on the accused‘s being convicted and remaining convicted of the offense to which he pled. When the plea to conviction is vacated, the condition precedent to the Government‘s agreement not to prosecute on the greater offense no longer existed. “The Government was then free to prosecute [the accused] without placing him twice in jeopardy. To hold otherwise is to find that the Double Jeopardy Clause gives the defendant more than thе `benefit of his bargain’ and ensures that he will not even be placed in jeopardy once under certain circumstances.” Anderson, supra, 514 F.2d at 587. In United States v. Williams, supra on the other hand, the Eighth Circuit finds
Williams also confronts the argument that for double jeopardy purposes it is immaterial whether the former conviction оn the lesser charge resulted from a trial on both the greater and lesser charges or from a plea to the lesser charge only. The Court rejects this argument, writing:
First, a jury‘s verdict of guilty on a lesser charge is an“implicit acquittal” on the greater charge. Seсond, a defendant‘s jeopardy on the greater charge ends when the first jury is given a “full opportunity” to return a verdict on that charge and instead returns a verdict on the lesser charge only. Neither premise is applicable when the original conviction on the lesser charge follows a guilty plea rather than a trial on both charges. Green, supra, 355 U.S. at 190, 78 S.Ct. at 225, 2 L.Ed.2d at 206, reveals quite clearly why the Supreme Court concluded that an “implicit acquittal” had occurred there:
Green was in direct peril of being convicted and punished for first degree murder at his first trial. He was forced to run the gauntlet once on that charge and the jury refused to convict him. When given the choice between finding him guilty of either first or second degree murder it chose the latter. In this situation the great majority of cases in this country have regarded the jury‘s verdict as an implicit acquittal on the charge of first degree murder.
Williams, supra, 534 F.2d at 121.
In contrast to the defendant in Green, the defendant at bar was not, in the proceedings in which his guilty plea was accepted, in direct peril of being convicted and punished for violating
This Court must next analyze the resolution of the issue in terms of the effect it may have on a defendant‘s decision to attack his conviction on appeal.
North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), established that a due process deprivation may result if a defendant receives harsh treatment when he is retried and reconvicted after a successful appeal. Specifically, Pearce held that after a new trial a defendant cannot be given a more severe sentence unless objective reasons concerning conduct occurring after the time of original sentencing affirmatively appear.2 The Court stated:
Due process of law, then, requires that vindictiveness against a defendant for having successfully attаcked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant‘s exercise of the right to appeal or collaterally attack his first conviсtion, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.
In the case at bar, it appears that retrial on the greater charge will impose no Pearce due process limitation on the possible sentence imposed, provided of course
This case is remanded for further proceedings consistent with this opinion.
CALOGERO, Justice, concurring.
I concur in the majority opinion based on the facts here presented. However, in my view, if defendant on remand again offers to plead guilty to simple robbery and the trial court or the district attorney refuses to allow him to do so the defendant‘s contentions may then have merit.