81 Wash. App. 640 | Wash. Ct. App. | 1996
George Lewis Corrado was tried without a charge. The jury found him. not guilty of attempted first degree murder, but guilty of the lesser included offense of attempted second degree murder. The primary issue is whether he can. be retried for one or both crimes. "We hold he can be retried for attempted second degree murder, but not for attempted first degree murder.
On July 30, 1993, Corrado was jailed for shooting Dorothy Gardner. On August 2, 1993, the State charged him with attempted murder in the first degree. On September 24, 1993, the State moved to dismiss without prejudice, saying it had been unable to locate Gardner. The trial court granted the motion and dismissed without prejudice. Corrado remained in jail on other matters, and Gardner was soon found.
On October 25,1993, Corrado was brought back to court. Although the State had not filed a new charge, the arraignment judge ordered that trial commence on November 1.
. On November 1, at the beginning of trial, the trial judge advised counsel in open court that the court file did not contain a charge. The prosecutor said he would file one, but he never did.
After both parties had presented their evidence, the judge instructed the jury on attempted first degree murder and the lesser included offense of attempted second degree murder. The judge also instructed the jury that it could convict of attempted first degree murder; acquit of attempted first degree murder but convict of attempted second degree murder; or acquit entirely. The jury acquitted of attempted first degree murder, but convicted of attempted second degree murder.
In July 1995, in Corrado I,
A week after our ruling, the State filed an information charging attempted second degree murder. Shortly thereafter, it filed an amended information charging attempted first degree murder. Corrado moved to dismiss the amended information, arguing (1) double jeopardy, (2) violation of his constitutional right to speedy trial, and (3) governmental misconduct in violation of CrR 8.3(b). Agreeing with the first argument, but rejecting the other two, the trial court dismissed the action. The State appealed, and Corrado cross-appealed.
I.
The State argues that Corrado was not in jeopardy during the previous trial because we held, in Corrado I, that the trial court "lacked jurisdiction”
A.
The double jeopardy clause guarantees that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb”.
Each element furthers a different policy or idea. The attachment element arises from the idea that a defendant is not in jeopardy until he or she is actually at risk of conviction; in other words, jeopardy should "attach” when an accused is at risk, but not otherwise.
As a general rule, jeopardy attaches in a jury trial when the jury is sworn, and in a bench trial when the first witness is sworn.
As a general rule, jeopardy terminates with a verdict of acquittal.
As a general rule, jeopardy terminates with a conviction that becomes unconditionally final,
Incidentally, jeopardy may or may not terminate when a trial ends without a verdict.
Once jeopardy has attached and terminated, the "same elements test,” also known as the Blockburger test,
Applying these principles to this case, we hold that Corrado can be retried at least for attempted second degree murder. In his prior appeal, he succeeded in having his conviction set aside. Thus, his original jeopardy did not terminate; it is "continuing” rather than "former,” and in the absence of "former” jeopardy he cannot show "double” jeopardy.
Although Corrado can be retried for attempted second degree murder, it would appear, at first glance, that he cannot be retried for attempted first degree murder. Jeopardy attached when the jury was sworn; jeopardy terminated when the jury acquitted; and the State now seeks to prosecute for the same offense as before. Thus, all three elements of double jeopardy are met, and the double jeopardy clause bars retrial for the higher crime
B.
The United States Supreme Court first pronounced a jurisdictional exception in United States v. Ball,
An acquittal before a court having no jurisdiction is, of course, like all the proceedings in the case, absolutely void, and therefore no bar to subsequent indictment and trial in a court which has jurisdiction of the offence. Commonwealth, v. Peters, 12 Met. 387; 2 Hawk. P.C. c. 35, § 3; 1 Bishop’s Crim. Law, § 1028.
The Court made similar statements in at least three turn-
Clearly, the exception does not apply every time a court chooses to intone "lack of jurisdiction” for state procedural law purposes. The phrase "lack of jurisdiction” has many meanings,
Three cases illustrate these vagaries. In Boyd v. Meachum,,
On appeal, the defendant argued double jeopardy. The State argued "that because the verdict of acquittal was in violation of Rule 770, the District Court lacked jurisdiction, and the acquittal did not result in a favorable termination of the defendant’s jeopardy.”
[T]he fact that the court may not have been authorized under the rules to render the verdict does not make it void for double jeopardy purposes. The cases make it clear that an improper or defective exercise of jurisdiction does not deprive an acquittal of its finality. Instead, as long as the court rendering a non-guilty verdict has jurisdiction over the of*654 fense, the verdict is a bar to further criminal proceedings on the same charge.[58 ]
In People v. Marks,
When the defendant appealed the second degree murder conviction, the California Supreme Court reversed and remanded for further proceedings. It said that when a trial is in doubt concerning competency, it "lacks jurisdiction” to conduct further proceedings until after it has found the defendant competent.
responded that the trial court’s . . . error rendered it without jurisdiction . . . and that all other proceedings were a nullity. Since jeopardy never attached, the proffered pleas were unavailable.[62 ]
The California Court of Appeals adopted the State’s position, and the matter again found its way to the California Supreme Court. That court ruled, in effect, that jeopardy had attached when the jury was sworn at the first trial;
[T]he trial court does not lose subject matter jurisdiction when it fails to hold a competency hearing, but rather acts in excess of jurisdiction by depriving the defendant of a fair trial. Although the judgment may be a nullity, for double jeopardy purposes the proceedings are not.[63 ]
Having established that the jurisdictional exception does not apply every time a court intones "lack of jurisdiction,” we must determine when it applies and when it does not. At the root of the exception is the following hypothesis: Lack of jurisdiction for purposes of state procedural law equals lack of jeopardy for purposes of double jeopardy law. The underlying assumptions are (1) that a defendant is not at risk when tried by a court that "lacks jurisdiction,” and (2) that a defendant not at risk is a defendant not in jeopardy. Thus, it is our view that the test for whether the exception applies is whether a trial court’s "lack of jurisdiction” causes the defendant not to be at risk of conviction and punishment.
We derive this lack-of-risk test not only from the assumptions underlying the exception, but also from the seminal case of Ball v. United States.
Illinois v. Somerville
Benton v. Maryland
In light of this analysis, the question here is this: When a trial court "lacks jurisdiction” due to the complete absence of a charging document, is the defendant at risk of conviction and punishment? If so, the trial court’s "lack of jurisdiction” for purposes of state procedural law does not equate with a lack of jeopardy for purposes of double jeopardy law, and the jurisdictional exception should not be applied.
In answering this question, we must assume that a trial court judgment is entered and becomes final immediately after trial. We may not assume that the trial court would have discovered the defect in its proceedings in time to forestall judgment; that either party would have appealed after judgment; or that the defect in the trial court’s proceedings would have been discovered on appeal. As the Ball Court noted, "the infallibility of the courts” is not to be assumed or admitted when dealing with double jeopar
In answering the question at hand, at least two factors are key. The first, exemplified by State v. Haye,
In this case, the State never objected to the trial court’s lack of jurisdiction; on the contrary, it actively sought to obtain and enforce a judgment of conviction. Nor did the judgment show on its face the trial court’s lack of jurisdiction; the superior court had power to hear and determine felonies, and its judgment gave no indication that its power had not properly been invoked. As explained in Ball, Corrado would have served out the judgment had he not appealed, and in fact he was imprisoned on the judgment from the time it was entered to the time his first appeal succeeded. Under these circumstances, we think Corrado was at risk of conviction and punishment during his previous trial, despite the trial court’s "lack of jurisdiction” for purposes of state procedural law. Thus, we also think Corrado was in jeopardy for purposes of double jeopardy law, and that the jurisdictional exception to attachment does not apply.
Before closing this part of our opinion, we make several additional observations. First, this case was fully tried, up to and including verdicts on the merits. Thus, the State had a full and complete opportunity to prosecute for attempted first degree murder, even though it hampered that opportunity by not filing a charge. And, correspondingly, Corrado "ran the gauntlet” one complete time.
This case, in short, presents the novel and unheard of spectacle of a public officer, whose business it was to frame a correct bill, openly alleging his own inaccuracy or neglect, as a reason for a second trial, when it is not pretended that the merits were not fairly in issue on the first. That a party shall be deprived of the benefit of an acquittal by a jury, on a suggestion of this kind, coming too from the officer who drew the indictment, seems not to comport with that universal and humane principle of criminal law, 'that no man shall be brought into danger more than once for the same offence.’ It is very like permitting a party to take advantage of his own wrong.[81 ]
Although the case at bar involves the failure to file a charge, as opposed to a defectively drafted charge, the same considerations apply here.
Third, the result we reach is consistent with cases like State v. Vangerpen,
Fourth, the result we reach is consistent with the result in State v. Cockrell,
Fifth, we are unpersuaded by Hamilton v. State,
We think Hamilton is wrong. Without analysis, it assumes that procedural nomenclature controls the applicability of the double jeopardy clause; in effect, it holds that an acquitted accused may be subjected to retrial whenever a court arbitrarily affixes the label "jurisdictional” to mere trial error. It is contrary to Marks, Boyd, Block, and, more importantly, to cases like Fong Foo v. United States,
Concluding this part of our discussion, we hold that jeopardy attached and terminated with respect to attempted first degree murder, and that the defendant cannot be retried for that offense. We also hold, however, that jeopardy has not terminated with respect to attempted second degree murder, and that the defendant can be retried for that offense.
II.
By cross appeal, Corrado argues his constitutional right to speedy trial has been violated because he was im
III.
Also by cross appeal, Corrado argues the case must be dismissed due to governmental misconduct. He relies on CrR 8.3(b), which provides:
The court on its own motion in the furtherance of justice, after notice and hearing, may dismiss any criminal prosecution and shall set forth its reasons in a written order.
Here, the only evidence of "misconduct” is the State’s omission to file a charge. Obviously, the omission was not intentional; rather, it was a single instance of negligence. The trial court believed it was not the type of prejudicial mismanagement that necessitates dismissal, and we review the trial court’s decision only for abuse of discretion.
The parties’ remaining arguments lack merit or need not be discussed.
The order of dismissal is affirmed as to the charge of attempted first degree murder. The order of dismissal is reversed as to the charge of attempted second degree murder. The case is remanded for further proceedings consistent with this opinion.
Br. of Appellant at 14.
State v. Corrado, 78 Wn. App. 612, 898 P.2d 860 (1995) (Corrado I).
Br. of Appellant at 2.
U.S. Const, amend. V. The double jeopardy clause applies to the states through the due process clause of the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969), and is coextensive with Article I, § 9 of the Washington Constitution. State v. Gocken, 127 Wn.2d 95, 896 P.2d 1267 (1995).
Serfass v. United States, 420 U.S. 377, 388, 95 S. Ct. 1055, 43 L. Ed. 2d 265 (1975); State v. Higley, 78 Wn. App. 172, 902 P.2d 659, review denied, 128 Wn.2d 1003 (1995).
Richardson v. United States, 468 U.S. 317, 325, 104 S. Ct. 3081, 82 L. Ed. 2d 242 (1984); Higley, 78 Wn. App. 172.
United States v. Dixon, 509 U.S. 688, 113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993); Brown v. Ohio, 432 U.S. 161, 166, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977); Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932).
See Serfass, 420 U.S. at 393 ("an accused must suffer jeopardy before he can suffer double jeopardy”); People v. Marks, 1 Cal. 4th 56, 820 P.2d 613, 2 Cal. Rptr. 2d 389 (1991) (same).
Serfass, 420 U.S. at 391; Price v. Georgia, 398 U.S. 323, 329, 90 S. Ct. 1757, 26 L. Ed. 2d 300 (1970); Kepner v. United States, 195 U.S. 100, 133, 24 S. Ct. 797, 49 L. Ed. 114 (1904).
Arizona v. Washington, 434 U.S. 497, 509, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978); United States v. Scott, 437 U.S. 82, 100, 98 S. Ct. 2187, 57 L. Ed. 2d 65 (1970).
Green v. United States, 355 U.S. 184, 190, 78 S. Ct. 221, 2 L. Ed. 2d 199 (1957); Abney v. United States, 431 U.S. 651, 662, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977); Smalis v. Pennsylvania, 476 U.S. 140, 144 n.4, 106 S. Ct. 1745, 90 L. Ed. 2d 116 (1986). "At the heart of this policy is the concern that permitting the sovereign freely to subject the citizen to a second trial for the same offense would arm Government with a potent instrument of oppression.” United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S. Ct. 1349, 51 L. Ed. 2d 642 (1977) .
Arizona v. Washington, 434 U.S. at 505.
Crist v. Bretz, 437 U.S. 28, 38, 98 S. Ct. 2156, 57 L. Ed. 2d 24 (1978); Martin Linen Supply Co., 430 U.S. at 569; Serfass, 420 U.S. at 388; Illinois v. Somerville, 410 U.S. 458, 467, 93 S. Ct. 1066, 35 L. Ed. 2d 425 (1973).
Smalis, 476 U.S. at 145; Richardson, 468 U.S. at 325; Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 308, 104 S. Ct. 1805, 80 L. Ed. 2d 311 (1984); Sanabria v. United States, 437 U.S. 54, 64, 69, 78, 98 S. Ct. 2170, 57 L. Ed. 2d 43 (1978) ; Martin Linen Supply Co., 430 U.S. at 571-72, 576; Price v. Georgia, 398 U.S. at 329 ("this Court has consistently refused to rule that jeopardy for an offense continues after an acquittal”); Green, .355 U.S. at 188 ("a verdict of acquittal is final, ending a defendant’s jeopardy”); Kepner, 195 U.S. at 133; United States v. Ball, 164 U.S. 662, 671, 16 S. Ct. 1192, 41 L. Ed. 300 (1896); State v. Ridgley, 70 Wn.2d 555, 424 P.2d 632 (1967).
Ball, 163 U.S. at 671; see also United States v. DiFrancesco, 449 U.S. 117, 130, 101 S. Ct. 426, 66 L. Ed. 2d 328 (1980); Burks v. United States, 437 U.S. 1, 16, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978); Serfass, 429 U.S. at 392.
Fong Foo v. United States, 369 U.S. 141, 143, 82 S. Ct. 671, 7 L. Ed. 2d 629 (1962); see also Sanabria, 437 U.S. at 64; DiFranceseo, 449 U.S. at 129.
Smalis, 476 U.S. at 144; Richardson, 468 U.S. at 325; Burks, 437 U.S. at 10-11; Scott, 437 U.S. at 91.
Tibbs v. Florida, 457 U.S. 31, 41, 102 S. Ct. 2211, 72 L. Ed. 2d 652 (1982); Jackson v. Virginia, 444 U.S. 890, 100 S. Ct. 195, 62 L. Ed. 2d 126 (1979).
Swisher v. Brady, 438 U.S. 204, 218, 98 S. Ct. 2699, 57 L. Ed. 2d 705 (1978); Brown v. Ohio, 432 U.S. at 165-66; United States v. Wilson, 420 U.S. 332, 343, 95 S. Ct. 1013, 43 L. Ed. 2d 232 (1975) ("[w]hen a defendant has been once convicted and punished for a particular crime, principles of fairness and finality require that he not be subjected to the possibility of further punishment by being again tried or sentenced for the same offense”).
Justices of Boston Mun. Court, 466 U.S. at 308; Tibbs v. Florida, 457 U.S. at 39-40; Ludwig v. Massachusetts, 427 U.S. 618, 631-32, 96 S. Ct. 2781, 49 L. Ed. 2d 732 (1976); United States v. Tateo, 377 U.S. 463, 465, 84 S. Ct. 1587, 12 L. Ed. 2d 448 (1964); Ball, 163 U.S. at 671-72.
Price v. Georgia, 398 U.S. at 326; see also Justices of Boston Mun. Court, 466 U.S. at 308; Jeffers v. United States, 432 U.S. 137, 152, 97 S. Ct. 2207, 53 L. Ed. 2d 168 (1977).
Tibbs v. Florida, 457 U.S. at 40 (quoting North Carolina v. Pearce, 395 U.S. 711, 720, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969)).
Scott, 437 U.S. at 90-91; see also Tibbs v. Florida, 457 U.S. 31, 40, 102 S. Ct. 2211, 72 L. Ed. 2d 652 (1982); DiFrancesco, 449 U.S. at 131 (same); Ball, 163 U.S. at 671-72. .
Scoff, 437 U.S. 91; see also Justices of Boston Mun. Court, 466 U.S. at 310; Tibbs v. Florida, 457 U.S. at 40.
Tibbs v. Florida, 457 U.S. at 40 (citing Tateo, 377 U.S. at 466).
Crist v. Bretz, 437 U.S. at 34-35; Arizona v. Washington, 434 U.S. at 505; Wade v. Hunter, 336 U.S. 684, 688-90, 69 S. Ct. 834, 93 L. Ed. 974 (1949).
Swisher v. Brady, 438 U.S. at 218; Wilson, 420 U.S. at 344; United States v. Jorn, 400 U.S. 470, 487, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1971); Green, 355 U.S. at 191.
Scott, 437 U.S. at 93-94, Lee v. United States, 432 U.S. 23, 32-33, 97 S. Ct. 2141, 53 L. Ed. 2d 80 (1977); Jeffers, 432 U.S. at 152; United States v. Dinitz, 424 U.S. 600, 607-08, 96 S. Ct. 1075, 47 L. Ed. 2d 267 (1976).
Richardson, 468 U.S. at 324; Arizona v. Washington, 434 U.S. at 509; United States v. Perez, 22 U.S. (9 Wheat) 579, 580, 6 L. Ed. 165 (1824).
Rutledge v. United States,_U.S___ 116 S. Ct. 1241, 1244, 134 L. Ed. 2d 419 (1996); Dixon, 509 U.S. 688; Brown v. Ohio, 432 U.S. at 166; Blockburger v. United States, 284 U.S. at 304.
Rutledge v. United States, 116 S. Ct. at 1244; Witte v. United States, 515 U.S. 389, 115 S. Ct. 2199, 2204, 132 L. Ed. 2d 351 (1995); Dixon, 113 S. Ct. at 2856; State v. Maxfield, 125 Wn.2d 378, 400-01, 886 P.2d 123 (1994); Higley, 78 Wn. App. at 178.
See Price v. Georgia, 398 U.S. 323; Green, 355 U.S. 184.
See Price v. Georgia, 398 U.S. 323; Green, 355 U.S. 184.
163 U.S. 662, 669, 16 S. Ct. 1192, 41 L. Ed. 300 (1896). Ball was the first case "in which this [United States Supreme] Court considered in any detail the double jeopardy implications of an appellate reversal.” Burks, 437 U.S. at 13.
Grafton v. United States, 206 U.S. 333, 345, 27 S. Ct. 749, 51 L. Ed. 1084 (1907); Diaz v. United States, 223 U.S. 442, 449, 32 S. Ct. 250, 56 L. Ed. 500 (1912); Kepner, 195 U.S. at 129.
Serfass, 420 U.S. at 391.
Mead School Dist. No. 354 v. Mead Educ. Ass’n, 85 Wn.2d 278, 282-83, 534 P.2d 561 (1975) (quoting Carter v. United States, 135 F.2d 858, 861 (5th Cir. 1943).
State v. Canady, 116 Wn.2d 853, 858, 809 P.2d 203 (1991); In re Eng, 113 Wn.2d 178, 180, 181, 191, 195, 776 P.2d 1336 (1989).
State v. Haye, 72 Wn.2d 461, 464, 433 P.2d 884 (1967); Ridgley, 70 Wn.2d at 557; United States v. Dunbar, 591 F.2d 1190, 1194 (5th Cir. 1979), aff’d in part and remanded, 611 F.2d 985 (5th Cir.), aff’d, 614 F.2d 39 (5th Cir.), cert denied, 447 US 926 (1980); Black’s Law Dictionary 854 (6th ed. 1990).
Commonwealth v. Peters, 53 Mass. (12 Met.) 387 (1847).
In re Shanea J., 150 Cal. App. 3d 831, 198 Cal. Rptr. 228 (1984).
Corrado, 78 Wn. App. 612.
People v. Pitts, 223 Cal. App. 3d 606, 273 Cal. Rptr. 757 (1990); Rogers v. State, 336 So. 2d 1233 (Fla. App. 1976), cert. dismissed, 348 So. 2d 952 (Fla. 1977); State v. Love, 625 P.2d 7 (Kan. App. 1981); State v. Nicholson, 839 S.W.2d 593, 595 (Mo. App. 1992); People v. Hartmann, 473 N.Y.S.2d 935 (1984); see Benton v. Maryland, 395 U.S. 784; Ball, 163 U.S. 662; but see State v. Kjorsvik, 117 Wn.2d 93, 107, 812 P.2d 86 (1991).
Harbor Enterprises, Inc. v. Gudjonsson, 116 Wn.2d 283, 285, 803 P.2d 798 (1991); State v. Cockrell, 102 Wn.2d 561, 567, 689 P.2d 32 (1984).
People v. Marks, 1 Cal. 4th 56, 820 P.2d 613, 2 Cal. Rptr. 2d 389 (1991).
Hamilton v. State, 754 P.2d 857 (N.M. App.), cert. denied, 753 P.2d 1320 (N.M. 1988).
State v. Boyd, 570 A.2d 1125, 1129 (Conn. 1990).
Daniel v. Warden, 794 F.2d 880 (3d Cir. 1986); but see State v. McCorkell, 63 Wn. App. 798, 800, 822 P.2d 795 (citing State v. Hardamon, 29 Wn.2d 182, 188, 186 P.2d 634 (1947) and State v. Escue, 6 Wn. App. 607, 607-09, 495 P.2d 351 (1972)), review denied, 119 Wn.2d 1004 (1992).
Block v. State, 407 A.2d 320 (Md. 1979) (prosecutor’s argument). For additional meanings of "jurisdiction,” see Black’s Law Dictionary 853-54 (6th ed. 1990).
. Meachum, 77 F.3d 60, 64 (2d Cir. 1996).
Boyd v. Meachum, 77 F.3d at 65 (citing Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 1991)).
77 F.3d 60 (2d Cir. 1996).
407 A.2d 320 (Md. 1979).
407 A.2d at 322 (quoting Grafton, 206 U.S. at 345).
407 A:2d at 324.
1 Cal. 4th 56, 820 P.2d 613, 2 Cal. Rptr. 389 (1991). Two earlier opinions in the same case can be found at People v. Marks, 788 P.2d 1155, 268 Cal. Rptr. 283 (1990) and People v. Marks, 264 Cal. Rptr. 910 (Cal. App. 1989).
820 P.2d at 620 (citation omitted).
For a peculiar case in which a defendant was at risk of conviction but not punishment, see United States v. Sabella, 272 F.2d 206 (2d Cir. 1959). We have no occasion to consider that type of case here.
163U.S. at 668.
163U.S. at 668.
395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969).
395 U.S. 796-97.
72 Wn.2d 461, 433 P.2d 884 (1967).
In Haye, according to assumptions made by the Washington Supreme Court, the district court convicted the defendant for a felony, even though it "lacked jurisdiction” to hear and determine felonies. Because the face of the judgment would have shown both the issuing court and the subject crime, the face of the judgment also would have shown the district court’s lack of jurisdiction. Thus, it seems unlikely that prison or jail officials would have accepted the defendant for incarceration, even if the district court had purported to commit him. Possible variations on the same idea include Dunbar, 591 F.2d 1190, in which a trial court lacked power to hear and determine a case that was pending on appeal, and In re Shanea J., 150 Cal. App. 3d 831, in which a juvenile court lacked power to hear and determine a case brought against a person who had previously been remanded to adult court.
885 P.2d 1316 (Nev. 1994).
In Parsons, the State filed a complaint in justice court in which it alleged that the defendant had committed felony driving under the influence of alcohol. The defendant asked to plead guilty to a misdemeanor. "The State objected, arguing that the justice court had no jurisdiction to accept a plea to a felony charge, and could only determine whether or not to bind Parsons over to [the trial court of general jurisdiction].” 885 P.2d at 1318. The justice court overruled the objection, accepted a plea to a misdemeanor, and imposed sentence. The State appealed, and the defendant argued that further proceedings would violate double jeopardy. The Nevada Supreme Court vacated the plea and allowed a new trial. Holding that "the justice court had no jurisdiction,” it said that "[a]n acquittal or a conviction by a court having no jurisdiction is void; therefore it is not a bar to subsequent indictment and trial by a court which has jurisdiction over the offense.” 885 P.2d at 1321.
A third possible factor, lack of territorial jurisdiction, was held to defeat jeopardy in Commonwealth v. Peters, 53 Mass. (12 Met.) 387 (1847), cited in Ball v. United States, 163 U.S. 662. Modernly, however, that factor may be better
163 U.S. at 667-68.
125 Wn.2d 782, 888 P.2d 1177 (1995).
11Wn.2d 623, 836 P.2d 212 (1992).
118 Wn.2d 424, 439-41, 823 P.2d 1101 (1992).
111 Wn.2d 591, 595-96, 763 P.2d 432 (1988).
In the first two cases, the charge was improper because it failed to state an essential element. In the third and fourth cases, the charge was improper because it was first advanced in the middle of trial.
Markle, 118 Wn.2d at 440 (emphasis in original).
102 Wn.2d 561, 567, 689 P.2d 32 (1984); see also Gudjonsson, 116 Wn.2d at 285.
Two cases cited by the State confuse attachment with termination in the same way. They are Parks v. State, 397 A.2d 212 (Md. App. 1979), aff'd, 410 A.2d 597 (Md. 1980), and Palm v. State, 656 S.W.2d 429 (Tex. Crim. App. 1981).
754 P.2d 857 (N.M. App.), cert. denied, 753 P.2d 1320 (N.M. 1988).
Fong Foo, 369 U.S. at 143; see also DiFraneesco, 449 U.S. at 129; Sanabria, 437 U.S. at 64.
State v. Warner, 125 Wn.2d 876, 882, 889 P.2d 479 (1995); State v. Dailey, 93 Wn.2d 454, 459, 610 P.2d 357 (1980); State v. Martinez, 78 Wn. App. 870, 875, 899 P.2d 1302 (1995), review denied, 128 Wn.2d 1017 (1996).