459 U.S. 957 (1982)

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U.S. Supreme Court

RIVERA v. OHIO , 459 U.S. 957 (1982)

459 U.S. 957

No. 82-5109

Supreme Court of the United States

October 18, 1982

On petition for writ of certiorari to the Court of Appeals of Ohio, Cuyahoga County.

The petition for writ of certiorari is denied.

Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.

Petitioner was arrested on August 13, 1980, after one Francis J. Kelley reported that petitioner has taken his motorcycle from him at knife point earlier that day, along with title to the motorcycle and some cash. On August 26, two weeks later, a Cuyahoga County grand jury handed down a one-count indictment charging petitioner with receiving stolen property. Petitioner appeared on the following September 26, pleaded guilty to the charge, and received a sentence. Then, on October 7, the grand jury returned a second indictment that charged petitioner with receiving stolen property, aggravated robbery, and intimidating a witness. The receiving and aggravated robbery counts were based upon the same theft of Mr. Kelley's belongings for which petitioner had already been convicted. Petitioner moved to dismiss the second indictment on the ground that it violated the Double Jeopardy Clause of the Fifth Amendment as applied to the states under the Fourteenth Amendment. The trial court dismissed the receiving count in the second indictment at the state's request, but overruled petitioner's motion to dismiss the remaining counts.

Petitioner took an interlocutory appeal. With one judge dissenting, the Ohio Court of Appeals, Eighth District, affirmed the trial court's ruling. It held:

Page 459 U.S. 957 , 958

"The intimidation and aggravated robbery charges raise no double jeopardy issue.... (T)he aggravated robbery count implicates not a duplicate, but an allied offense....

"The allied offense issue will arise only if the defendant is found guilty of aggravated robbery. He may be tried, but cannot be convicted, for both the aggravated robbery and for receiving the stolen property acquired in the theft offense, Maumee v. Geiger (1976 ), 45 Ohio St.2d 238, 244 (344 N.E.2d 133). Accordingly, the error assigned is without merit." Petition for Writ of Certiorari, Appendix, at 17-18.

The Ohio Supreme Court overruled petitioner's motion for leave to appeal, and this petition followed.

We have jurisdiction to review final judgments by state courts denying a defendant's pre-trial motion to dismiss an indictment on former jeopardy grounds. Harris v. Washington, 404 U.S. 55, 56, 184 (1971); see Abney v. United States, 431 U.S. 651, 656-661, 2038-2041 (1977). I would grant the petition for certiorari and set the case for oral argument. The Double Jeopardy Clause prohibits "a second prosecution for the same offense after conviction," North Carolina v. Pearce, 395 U.S. 711, 717, 2076 (1969), and I adhere to the view that this prohibition requires states to prosecute in one proceeding "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, 453- 454, 1199 (1977) (BRENNAN, J., concurring); see Brooks v. Oklahoma, -- U.S. -- (1982) ( BRENNAN, J., dissenting from denial of certiorari); Thompson v. Oklahoma, 429 U.S. 1053 (1977) (BRENNAN, J., dissenting from denial of certiorari), and cases cited therein. Petitioner's indictment for aggravated robbery manifestly arose from the selfsame criminal act supporting his earlier conviction for receiving stolen property. None of the exceptions discussed in my opinion in Ashe v. Swenson, 397 U.S., at 453, n. 7 and 455, n. 11, n. 7 and 1200, n. 11, excuse the state's failure to prose- [459 U.S. 957 , 959]

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