Waller v. Florida, 397 U. S. 387
which bars on the ground of double jeopardy two prosecutions, state
and municipal, based on the same act or offense, is fully
retroactive. Pp. 409 U. S.
452 F.2d 370, vacated and remanded.
REHNQUIST, J., delivered the opinion for a unanimous Court.
BRENNAN, J., filed a separate opinion, in which DOUGLAS and
MARSHALL, JJ., joined, post,
p. 409 U. S.
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
In 1962, petitioner was tried and convicted in the Chattanooga
municipal court of three counts of assault and battery in violation
of a city ordinance. He was fined $50 and costs on each count. He
was later indicted by the grand jury of Hamilton County, Tennessee,
which, out of the same circumstances giving rise to the municipal
trial, charged him with three offenses of assault with intent to
commit murder in violation of state law. The petitioner pleaded
guilty to the state charges and received consecutive sentences of
three to 10 years for two offenses and three to five years for the
third offense. He is presently in the custody of the respondent
warden of the Tennessee State Penitentiary.
Page 409 U. S. 506
In 1966, the petitioner unsuccessfully sought habeas corpus
relief in state courts on the ground that the second convictions
for state offenses violated his federal constitutional guarantee
against twice being placed in jeopardy for the same offense. In
1967, federal courts denied a similar request for habeas corpus
relief. Robinson v. Henderson, 268 F.
(ED Tenn. 1967), aff'd,
391 F.2d 933 (CA6
1968). In 1970, the petitioner renewed his claims for habeas
relief, basing his arguments on this Court's intervening decisions
in Benton v. Maryland, 395 U. S. 784
(1969), and Waller v. Florida, 397 U.
(1970). Holding that Waller
was to be
accorded retrospective effect, the District Court granted the
petitioner habeas corpus relief. 320 F. Supp. 894 (ED Tenn. 1971).
The Sixth Circuit reversed (452 F.2d 370 (1971)), and we granted
certiorari to decide the retroactivity of Waller v.
406 U.S. 916 (1972).
The Fifth Amendment's guarantee that no person be twice put in
jeopardy for the same offense was first held binding on the States
in Benton v. Maryland, supra.
Our subsequent decision in
Waller v. Florida, supra,
held that the scope of this
guarantee precluded the recognition of the "dual sovereignty"
doctrine with respect to separate state and municipal prosecutions.
involved the theft of a mural from the City Hall of
St. Petersburg, Florida. The petitioner there was first tried and
convicted of violating city ordinances with respect to the
destruction of city property and breach of the peace. Subsequently,
he was convicted of grand larceny in violation of state law
involving the same theft. The Court stated:
"the Florida courts were in error to the extent of holding that
"even if a person has been tried in a municipal court for the
identical offense with which he is charged
Page 409 U. S. 507
in a state court, this would not be a bar to the prosecution of
such person in the proper state court."
397 U.S. at 397 U. S.
Prior to this Court's 1965 decision in Linkletter v.
Walker, 381 U. S. 618
there would have been less doubt concerning the retroactivity of
holding. For, until that time, both the common
law and our own decisions recognized a general rule of
retrospective effect for the constitutional decisions of this
Court, e.g., Norton v. Shelby County, 118 U.
, 118 U. S. 442
(1886), subject to limited exceptions of a nature such as those
stated in Chicot County Drainage District v. Baxter State
Bank, 308 U. S. 371
(1940). In Linkletter,
the Court, declaring that it was
charting new ground (381 U.S. at 381 U. S. 628
and n. 13), held that, with respect to new constitutional
interpretations involving criminal rights, "the Constitution
neither prohibits nor requires retrospective effect." Id.
at 381 U. S. 629
and succeeding cases established a set of
factors for determining which constitutional rules were to be
accorded retrospective and which prospective effect only.
Court and the Sixth Circuit in this case applied the factors
enunciated by these cases to the Waller
holding. The Sixth
Circuit held, contrary to the conclusion of the District Court,
is not to be applied retroactively.
We do not believe that this case readily lends itself to the
analysis established in Linkletter.
Certainly, there is
nothing in Linkletter
or those cases following it to
indicate that all rules and constitutional interpretations arising
under the first eight Amendments must be subjected to the analysis
there enunciated. Linkletter
itself announced an exception
to the general rule of retroactivity
Page 409 U. S. 508
in a decision announcing that the exclusionary rule of Mapp
v. Ohio, 367 U. S. 643
(1961), would be given prospective effect only.
and the other cases relied upon by the Sixth
Circuit, dealt with those constitutional interpretations bearing on
the use of evidence or on a particular mode of trial. Those
procedural rights and methods of conducting trials, however, do not
encompass all of the rights found in the first eight Amendments.
Guarantees that do not relate to these procedural rules cannot, for
retroactivity purposes, be lumped conveniently together in terms of
analysis. For the purpose and effect of the various constitutional
guarantees vary sufficiently among themselves so as to affect the
necessity for prospective, rather than retrospective,
indicated, for instance, that only those
procedural rules affecting "the very integrity of the factfinding
process" would be given retrospective effect. 381 U.S. at
381 U. S. 639
In terms of some nonprocedural guarantees, this test is simply not
appropriate. In Furman v. Georgia, 408 U.
(1972), for example, this Court held that, in the
situation there presented, imposition of the death penalty was not
constitutionally permissible. Yet, while this holding does not
affect the integrity of the factfinding process, we have not
hesitated to apply it retrospectively without regard to whether the
rule meets the Linkletter
criteria. E.g., Walker v.
408 U.S. 936.
The prohibition against being placed in double jeopardy is
likewise not readily susceptible of analysis under the
line of cases. Although the Court has not
handed down a fully reasoned opinion on the retroactivity of
Benton v. Maryland,
it has indicated that it is
retroactive without examination of the Linkletter
criteria. North Carolina v. Pearce, 395 U.
(1969); Ashe v. Swenson, 397 U.
, 397 U. S. 437
n. 1 (1970). These
Page 409 U. S. 509
decisions do not directly control the question of whether
should be given retrospective effect, but they bear
upon its disposition.
The guarantee against double jeopardy is significantly different
from procedural guarantees held in the Linkletter
cases to have prospective effect only. While this guarantee, like
the others, is a constitutional right of the criminal defendant,
its practical result is to prevent a trial from taking place at
all, rather than to prescribe procedural rules that govern the
conduct of a trial. A number of the constitutional rules applied
prospectively only under the Linkletter
cases were found
not to affect the basic fairness of the earlier trial, but to have
been directed instead to collateral purposes such as the deterrence
of unlawful police conduct, Mapp v. Ohio, supra.
however, the Court's ruling was squarely directed
to the prevention of the second trial's taking place at all, even
though it might have been conducted with a scrupulous regard for
all of the constitutional procedural rights of the defendant.
We would not suggest that the distinction that we draw is an
ironclad one that will invariably result in the easy classification
of cases in one category or the other. The element of reliance
embodied in the Linkletter
analysis will not be wholly
absent in the case of constitutional decisions not related to trial
procedure, as indeed this case when contrasted with Furman
In Furman v. Georgia, supra,
our mandate was tailored
so as to deny to the State only the authority to impose a
punishment that we held unconstitutional, without the necessity of
a redetermination of the factual question of whether the offense
had in fact been committed. Thus, the prejudice to the State
resulting from the necessity of an entirely new trial because of
procedures newly found to be constitutionally defective, with
Page 409 U. S. 510
attendant difficulties of again assembling witnesses whose
memories would of necessity be dimmer for the second trial than for
the first, was not present. That which was constitutionally invalid
could be isolated and excised without requiring the State to begin
the entire factfinding process anew.
The application of Waller
retrospectively may, on the
other hand, result in a form of prejudice to the State because, in
reliance upon the "dual sovereignty" analogy, the municipal
prosecution may have occurred first and the sentence already have
been served prior to the commencement of the state prosecution. If
the offense involved was a serious one under state law, as it
apparently was in this case, the defendant may have been
unintentionally accorded a relatively painless form of immunity
from the state prosecution. But the Court's opinion in
makes clear that the analogy between state and
municipal prosecutions, and federal and state prosecutions
permitted in Bartkus v. Illinois, 359 U.
(1959), had never been sanctioned by this Court,
and was not analytically sound. Since the issue did not assume
federal constitutional proportions until after Benton v.
held the Double Jeopardy Clause applicable to the
States, this Court had not earlier had occasion to squarely pass on
the issue. But its decision in Waller
cannot be said to
have marked a departure from past decisions of this Court.
Therefore, while Waller
-type cases may involve a form of
practical prejudice to the State over and above the refusal to
permit the trial that the Constitution bars, the justifiability of
the State's reliance on lower court decisions supporting the dual
sovereignty analogy was a good deal more dubious than the
justification for reliance that has been given weight in our
line of cases. We intimate no view as to what
weight should be accorded
Page 409 U. S. 511
to reliance by the State that was justifiable under the
test in determining retroactivity of a
nonprocedural constitutional decision such as Waller.
We hold, therefore, that our decision in Waller v.
is to be accorded full retroactive effect. We refrain
from an outright reversal of the judgment below, however, because
statements of counsel at oral argument raised the issue of whether
the state and municipal prosecutions were actually for the same
offense. We therefore vacate the judgment of the Court of Appeals
and remand the case so that respondent may have an opportunity to
present this issue there or in the District Court.
It is so ordered.
* See Desist v. United States, 394 U.
(1969), which carefully examined all of the cases
decided since Linkletter
and more fully enunciated the
guiding criteria of those cases.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS and MR.
JUSTICE MARSHALL concur.
Although I otherwise join the opinion of the Court, I would
reverse the judgment of the Court of Appeals outright. I adhere to
my view that, regardless of the similarity of the offenses, the
Double Jeopardy Clause of the Fifth Amendment, which is applicable
to the States through the Fourteenth Amendment, Benton v.
Maryland, 395 U. S. 784
(1969), requires the prosecution, except in most limited
circumstances not present here, "to join at one trial all the
charges against a defendant that grow out of a single criminal act,
occurrence, episode, or transaction." Ashe v. Swenson,
397 U. S. 436
397 U. S.
-454 (1970) (BRENNAN, J., concurring); see Grubb
v. Oklahoma, post,
p. 1017 (1972) (BRENNAN, J., dissenting);
Miller v. Oregon, 405 U. S. 1047
(1972) ( BRENNAN, J., dissenting); Harris v. Washington,
404 U. S. 55
404 U. S. 57
(1971) (separate statement of DOUGLAS, BRENNAN, and MARSHALL, JJ.).
Under this "same transaction" test, all charges against petitioner
should have been brought in a single prosecution.