State v. DoughtyState v. Doughty
The question raised by this criminal appeal is whether the double jeopardy prohibitions bar multiple conviction and punishment at a single trial for the crimes of forgery and theft which occurred when defendant knowingly obtained cash and merchandise with a check bearing a false signature. Defendant‘s conviction and sentence for theft must be reversed. Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not. In the present case, the evidence required to support a conviction of theft would have been sufficient to warrant a conviction of forgery, without the proof of any additional facts. Where multiple punishment has been erroneously imposed the proper appellate procedure is to eliminate the effect of the less severely punishable offense.
In a two-count bill of information filed on April 7, 1978, defendant Robert L. Doughty was charged with forgery and felony theft, in violation of
On November 19, 1977, at approximately 4:00 p. m., defendant Robert Doughty and his wife entered Butler‘s Check and Save Grocery on Foster Drive in Baton Rouge. After shopping awhile, defendant asked the check-out clerk to cash his payroll check. When she agreed, defendant endorsed the check with the name “Roy Fruge.” The check was drawn on the account of Charles Ellis Construction Company and made payable to Roy Fruge in the amount of one hundred sixty-nine dollars. After the clerk cashed the check the defendant used some of the money to pay for approximately twenty dollars worth of groceries.
Defendant Doughty was charged with the offenses of forgery,
The Double Jeopardy Clause of the Fifth Amendment, applicable to the states through the Fourteenth, provides that no person shall “be subject for the same offenses to be twice put in jeopardy of life or limb.”
Because it was designed originally to embody the protection of the common-law pleas of former jeopardy, see United States v. Wilson, 420 U.S. 332, 339-340, 95 S.Ct. 1013, 1019-1020, 43 L.Ed.2d 232 (1975), the double jeopardy guarantee serves principally as a restraint on courts and prosecutors. The legislature remains free under the Double Jeopardy Clause to define crimes and fix punishments; but once the legislature has acted courts may not impose more than one punishment for the same offense and prosecution ordinarily may not attempt to secure that punishment in more than one trial. Brown v. Ohio, 432 U.S. at 166, 97 S.Ct. at 2225, 53 L.Ed.2d at 193-194.
The Double Jeopardy Clause “protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction, and it protects against multiple punishment for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes omitted).
In determining whether two offenses are the same for purposes of barring multiple punishments at a single trial, the Supreme Court, in Brown v. Ohio, supra, 432 U.S. at 167, 97 S.Ct. at 2220, made clear that the test which had been formulated in the federal system is constitutionally required of the states:
“The established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932);
“`The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not....’
This test emphasizes the elements of the two crimes. `If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes....’ Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1294, 43 L.Ed.2d 616 (1975).
“* * *
“Unless `each statute requires proof of an additional fact which the other does not,’ Morey v. Commonwealth, 108 Mass. 433, 434 (1871), the Double Jeopardy Clause prohibits successive prosecutions as well as cumulative punishment.” 432 U.S. at 166, 97 S.Ct. at 2225-26, 53 L.Ed.2d at 194-195. See also Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489 (1911).
Applying the distinct fact test, we conclude that there is only one offense in this case because the evidence required to support a conviction on the theft charge would have been sufficient to warrant a conviction on the forgery charge. Theft is defined as the misappropriation or taking of anything of value of another either without his consent or by means of fraudulent conduct.
Since the sentences in the present case were made to run concurrently, it may be argued that the concurrent sentences are presumed to be no greater punishment than a single sentence of equal length. See Claasen v. United States, 142 U.S. 140, 12 S.Ct. 169, 35 L.Ed. 966 (1891); Green v. United States, 365 U.S. 301, 306, 81 S.Ct. 653, 656, 5 L.Ed.2d 670 (1961); Note, 107 U.Pa.L.Rev. 726 n. 4 (1959). However, “[t]he validity of this presumption is questionable ... [i]t does not take into account the stigma which attaches for an accused from the conviction of two or more crimes, rather than one, or the practical effect on a prisoner, now that the parole system is so widely applied.” United States v. Hines, 256 F.2d 561, 563 (2d Cir. 1958). Concurrent sentences are more prejudicial than a single sentence because “it is well understood that a multiplicity of sentences impairs a prisoner‘s opportunities for pardon or parole.” Hibdon v. United States, 204 F.2d 834, 839 (6th Cir. 1953); see Comment, Twice in Jeopardy, 75 Yale L.J. 262, 300 (1965).
Because of the prejudicial effect of concurrent sentences where, as in the present case, the convictions are found to be in violation of the state and federal provisions which proscribe double jeopardy, one of the sentences must be vacated. Where multiple punishment has been erroneously imposed, the appropriate procedure at the appellate level is to eliminate the effect of the judgment as to the less severely punishable offense. State v. Ballez, 102 Ariz. 174, 427 P.2d 125 (1967); State v. Hopper, 25 Ariz.App. 65, 540 P.2d 1284 (1975). This action consists of eliminating both conviction and sentence. Id. Cf. In re Wright, 65 Cal.2d 650, 56 Cal.Rptr. 110, 422 P.2d 998 (1967); People v. Laster, 18 Cal.App.3d 381, 96 Cal.Rptr. 108 (1971).
In the present case forgery,
VACATED IN PART; AFFIRMED IN PART.