The Double Jeopardy Clause of the Fifth Amendment, applied to
the States through the Fourteenth, held to bar prosecution and
punishment for the crime of stealing an automobile following
prosecution and punishment for the lesser included offense of
operating the same vehicle without the owner's consent. Pp.
432 U. S.
164-170.
(a) "[W]here 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 a fact which the other does not,"
Blockburger v. United States, 284 U.
S. 299,
284 U. S. 304.
In line with that test, the Double Jeopardy Clause generally
forbids successive prosecution and cumulative punishment for a
greater and lesser included offense. Pp.
432 U.S. 166-169.
(b) Here, though the Ohio Court of Appeals properly held that,
under state law, joyriding (taking or operating a vehicle without
the owner's consent) and auto theft (joyriding with the intent
permanently to deprive the owner of possession) constitute "the
same statutory offense" within the meaning of the Double Jeopardy
Clause, it erroneously concluded that petitioner could be convicted
of both crimes because the charges against him had focused on
different parts of the 9-day interval between petitioner's taking
of the car and his apprehension. There was still only one offense
under Ohio law, and the specification of different dates in the two
charges against petitioner cannot alter the fact that he was twice
placed in jeopardy for the same offense in violation of the Fifth
and Fourteenth Amendments. Pp.
432
U.S. 169-170.
Reversed.
POWELL, J., delivered the opinion of the Court, in which
BRENNAN, STEWART, WHITE, MARSHALL, and STEVENS, JJ., joined.
BRENNAN, J., filed a concurring opinion, in which MARSHALL, J.,
joined,
post, p.
432 U. S. 170.
BLACKMUN, J., filed a dissenting opinion, in which BURGER, C.J.,
and REHNQUIST, J., joined,
post, p.
432 U. S.
170.
Page 432 U. S. 162
MR. JUSTICE POWELL delivered the opinion of the Court.
The question in this case is whether the Double Jeopardy Clause
of the Fifth Amendment bars prosecution and punishment for the
crime of stealing an automobile following prosecution and
punishment for the lesser included offense of operating the same
vehicle without the owner's consent.
I
On November 29, 1973, the petitioner, Nathaniel Brown, stole a
1965 Chevrolet from a parking lot in East Cleveland, Ohio. Nine
days later, on December 8, 1973, Brown was caught driving the car
in Wickliffe, Ohio. The Wickliffe police charged him with
"joyriding" -- taking or operating the car without the owner's
consent -- in violation of Ohio Rev.Code Ann. § 4549.04(D) (1973,
App. 342). [
Footnote 1] The
complaint charged that,
"on or about December 8, 1973, . . . Nathaniel H. Brown did
unlawfully and purposely take, drive or operate a certain motor
vehicle to wit; a 1965 Chevrolet . . . without the consent of the
owner one Gloria Ingram. . . ."
App. 3. Brown pleaded guilty to this charge and was sentenced to
30 days in jail and a $100 fine.
Upon his release from jail on January 8, 1974, Brown was
returned to East Cleveland to face further charges, and, on
February 5, he was indicted by the Cuyahoga County grand jury. The
indictment was in two counts, the first charging
Page 432 U. S. 163
the theft of the car "on or about the 29th day of November
1973," in violation of Ohio Rev.Code Ann. § 4549.04(A) (1973, App.
342), [
Footnote 2] and the
second charging joyriding on the same date in violation of §
4549.04(D). A bill of particulars filed by the prosecuting attorney
specified that
"on or about the 29th day of November, 1973, . . . Nathaniel
Brown unlawfully did steal a Chevrolet motor vehicle, and take,
drive or operate such vehicle without the consent of the owner,
Gloria Ingram. . . ."
App. 10. Brown objected to both counts of the indictment on the
basis of former jeopardy.
On March 18, 1974, at a pretrial hearing in the Cuyahoga County
Court of Common Pleas, Brown pleaded guilty to the auto theft
charge on the understanding that the court would consider his claim
of former jeopardy on a motion to withdraw the plea. [
Footnote 3] Upon submission of the motion,
the court overruled Brown's double jeopardy objections. The court
sentenced Brown to six months in jail but suspended the sentence
and placed Brown on probation for one year.
The Ohio Court of Appeals affirmed. It held that, under Ohio
law, the misdemeanor of joyriding was included in the felony of
auto theft:
"Every element of the crime of operating a motor vehicle without
the consent of the owner is also an element of the crime of auto
theft. 'The difference between the crime of stealing a motor
vehicle, and operating a motor vehicle without the consent of the
owner is that conviction for stealing requires proof of an intent
on the part of the thief to permanently deprive the owner of
possession.' . . . [T]he crime of operating a motor vehicle without
the
Page 432 U. S. 164
consent of the owner is a lesser included offense of auto theft.
. . ."
Id. at 22. Although this analysis led the court to
agree with
Brown that, "for purposes of double jeopardy
the two prosecutions involve the same statutory offense,"
id. at 23, [
Footnote
4] it nonetheless held the second prosecution permissible:
"The two prosecutions are based on two separate acts of the
appellant, one which occurred on November 29th and one which
occurred on December 8th. Since appellant has not shown that both
prosecutions are based on the same act or transaction, the second
prosecution is not barred by the double jeopardy clause."
Ibid. The Ohio Supreme Court denied leave to
appeal.
We granted certiorari to consider Brown's double jeopardy claim,
429 U.S. 893 (1976), and we now reverse.
II
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 offence to be twice put in jeopardy of
life or limb." It has long been understood that separate statutory
crimes need not be identical -- either in constituent elements or
in actual proof -- in order to be the same within the meaning of
the constitutional prohibition. 1 J. Bishop, New Criminal Law §
1051 (8th ed. 1892); Comment, Twice in Jeopardy, 75 Yale L.J. 262,
268-269 (1965). The principal question in this case is whether auto
theft and joyriding, a greater and lesser included offense under
Ohio law, constitute the "same offence" under the Double Jeopardy
Clause.
Page 432 U. S. 165
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,
420 U. S.
339-340 (1975), the Fifth Amendment 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 prosecutors ordinarily may not
attempt to secure that punishment in more than one trial. [
Footnote 5]
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
punishments for the same offense."
North Carolina v. Pearce, 395 U.
S. 711,
395 U. S. 717
(1969) (footnotes omitted). Where consecutive sentences are imposed
at a single criminal trial, the role of the constitutional
guarantee is limited to assuring that the court does not exceed its
legislative authorization by imposing multiple punishments for the
same offense.
See Gore v. United States, 357 U.
S. 386 (1958);
Bell v. United States,
349 U. S. 81
(1955);
Ex parte
Lange, 18 Wall. 163 (1874). Where successive
prosecutions are at stake, the guarantee serves "a constitutional
policy of finality for the defendant's benefit."
United States
v. Jorn, 400 U. S. 470,
400 U. S. 479
(1971) (plurality opinion). That policy protects the accused from
attempts to relitigate the facts underlying a prior acquittal,
See Ashe v.
Swenson, 397 U.S.
Page 432 U. S. 166
436 (1970);
cf. United States v. Martin Linen Supply
Co., 430 U. S. 564
(1977), and from attempts to secure additional punishment after a
prior conviction and sentence,
see Green v. United States,
355 U. S. 184,
355 U. S.
187-188 (1957);
cf. North Carolina v. Pearce,
supra.
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,
284 U. S. 304
(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 a 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,
420 U. S. 785
n. 17 (1975).
If two offenses are the same under this test for purposes of
barring consecutive sentences at a single trial, they necessarily
will be the same for purposes of barring successive prosecutions.
See In re Nielsen, 131 U. S. 176,
131 U. S.
187-188 (1889);
cf. Gavieres v. United States,
220 U. S. 338
(1911). Where the judge is forbidden to impose cumulative
punishment for two crimes at the end of a single proceeding, the
prosecutor is forbidden to strive for the same result in successive
proceedings. 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. [
Footnote 6]
Page 432 U. S. 167
We are mindful that the Ohio courts "have the final authority to
interpret . . . that State's legislation."
Garner v.
Louisiana, 368 U. S. 157,
368 U. S. 169
(1961). Here the Ohio Court of Appeals has authoritatively defined
the elements of the two Ohio crimes: joyriding consists of taking
or operating a vehicle without the owner's consent, and auto theft
consists of joyriding with the intent permanently to deprive the
owner of possession. App. 22. Joyriding is the lesser included
offense. The prosecutor who has established joyriding need only
prove the requisite intent in order to establish auto theft;
Page 432 U. S. 168
the prosecutor who has established auto theft necessarily has
established joyriding as well.
Applying the
Blockburger test, we agree with the Ohio
Court of Appeals that joyriding and auto theft, as defined by that
court, constitute "the same statutory offense" within the meaning
of the Double Jeopardy Clause. App. 23. For it is clearly not the
case that "each [statute] requires proof of a fact which the other
does not." 284 U.S. at
284 U. S. 304.
As is invariably true of a greater and lesser included offense, the
lesser offense -- joyriding -- requires no proof beyond that which
is required for conviction of the greater -- auto theft. The
greater offense is therefore, by definition, the "same" for
purposes of double jeopardy as any lesser offense included in
it.
This conclusion merely restates what has been this Court's
understanding of the Double Jeopardy Clause at least since
In
re Nielsen was decided in 1889. In that case, the Court
endorsed the rule that
"where . . . a person has been tried and convicted for a crime
which has various incidents included in it, he cannot be a second
time tried for one of those incidents without being twice put in
jeopardy for the same offence."
131 U.S. at
131 U. S. 188.
Although in this formulation the conviction of the greater precedes
the conviction of the lesser, the opinion makes it clear that the
sequence is immaterial. Thus, the Court treated the formulation as
just one application of the rule that two offenses are the same
unless each requires proof that the other does not.
Id. at
131 U. S. 188,
131 U. S. 190,
citing
Morey v. Commonwealth, supra at 434. And as another
application of the same rule, the Court cited, 131 U.S. at
131 U. S. 190,
with approval the decision of
State v. Cooper, 13 N.J.L.
361 (1833), where the New Jersey Supreme Court held that a
conviction for arson barred a subsequent felony murder indictment
based on the death of a man killed in the fire.
Cf.
397 U. S.
Florida, 397 U.S.
Page 432 U. S. 169
387,
397 U. S. 390
(1970): whatever the sequence may be, the Fifth Amendment forbids
successive prosecution and cumulative punishment for a greater and
lesser included offense. [
Footnote
7]
III
After correctly holding that joyriding and auto theft are the
same offense under the Double Jeopardy Clause, the Ohio Court of
Appeals nevertheless concluded that Nathaniel Brown could be
convicted of both crimes because the charges against him focused on
different parts of his 9-day joyride. App. 23. We hold a different
view. The Double Jeopardy Clause is not such a fragile guarantee
that prosecutors can avoid its limitations by the simple expedient
of dividing a single crime into a series of temporal or spatial
units.
Cf. Braverman v. United States, 317 U. S.
49,
317 U. S. 52
(1942). The applicable Ohio statutes, as written and as construed
in this case, make the theft and operation of a single car a single
offense. Although the Wickliffe and East Cleveland authorities may
have had different perspectives on Brown's offense, it was still
only one offense under Ohio law. [
Footnote 8] Accordingly, the specification of
Page 432 U. S. 170
different dates in the two charges on which Brown was convicted
cannot alter the fact that he was placed twice in jeopardy for the
same offense in violation of the Fifth and Fourteenth
Amendments
Reversed.
[
Footnote 1]
Section 4549.04(D) provided at the time: "No person shall
purposely take, operate, or keep any motor vehicle without the
consent of its owner." A violation was punishable as a misdemeanor.
Section 4549.04 was repealed effective January 1, 1974.
[
Footnote 2]
Section 4549.04(A) provided: "No person shall steal any motor
vehicle." A violation was punishable as a felony.
[
Footnote 3]
The joyriding count of the indictment was nol prossed.
[
Footnote 4]
As the Ohio Court of Appeals recognized, the Wickliffe and
Cuyahoga County prosecutions must be viewed as the acts of a single
sovereign under the Double Jeopardy Clause.
Waller v.
Florida, 397 U. S. 387
(1970).
[
Footnote 5]
We are not concerned here with the double jeopardy questions
that may arise when a defendant is retried on the same charge after
a mistrial,
e.g., United States v. Jorn, 400 U.
S. 470 (1971), or dismissal of the indictment or
information,
e.g., United States v. Jenkins, 420 U.
S. 358 (1975), or after a conviction is reversed on
appeal,
e.g., United States v. Ball, 163 U.
S. 662 (1896). Nor are we concerned with the
permissibility of separate prosecutions on closely related criminal
charges when the accused opposes a consolidated trial,
e.g.,
Jeffers v. United States, ante p.
432 U. S. 137.
[
Footnote 6]
The
Blockburger test is not the only standard for
determining whether successive prosecutions impermissibly involve
the same offense. Even if two offenses are sufficiently different
to permit the imposition of consecutive sentences, successive
prosecutions will be barred in some circumstances where the second
prosecution requires the relitigation of factual issues already
resolved by the first. Thus in
Ashe v. Swenson,
397 U. S. 436
(1970), where an acquittal on a charge of robbing one of several
participants in a poker game established that the accused was not
present at the robbery, the Court held that principles of
collateral estoppel embodied in the Double Jeopardy Clause barred
prosecutions of the accused for robbing the other victims. And in
In re Nielsen, 131 U. S. 176
(1889), the Court held that a conviction of a Mormon on a charge of
cohabiting with his two wives over a 2 1/2-year period barred a
subsequent prosecution for adultery with one of them on the day
following the end of that period.
In both cases, strict application of the
Blockburger
test would have permitted imposition of consecutive sentences had
the charges been consolidated in a single proceeding. In
Ashe, separate convictions of the robbery of each victim
would have required proof in each case that a different individual
had been robbed.
See Ebeling v. Morgan, 237 U.
S. 625 (1915). In
Nielsen, conviction for
adultery required proof that the defendant had sexual intercourse
with one woman while married to another; conviction for
cohabitation required proof that the defendant lived with more than
one woman at the same time. Nonetheless, the Court in both cases
held the separate offenses to be the "same" for purposes of
protecting the accused from having to "
run the gantlet' a
second time." Ashe, supra at 397 U. S. 446,
quoting from Green v. United States, 355 U.
S. 184, 355 U. S. 190
(1957).
Because we conclude today that a lesser included and a greater
offense are the same under
Blockburger, we need not decide
whether the repetition of proof required by the successive
prosecutions against Brown would otherwise entitle him to the
additional protection offered by
Ashe and
Nielsen.
[
Footnote 7]
An exception may exist where the State is unable to proceed on
the more serious charge at the outset because the additional facts
necessary to sustain that charge have not occurred or have not been
discovered despite the exercise of due diligence.
See Diaz v.
United States, 223 U. S. 442,
223 U. S.
448-449 (1912);
Ashe v. Swenson, supra at
397 U. S. 453
n. 7 (BRENNAN, J., concurring).
[
Footnote 8]
We would have a different case if the Ohio Legislature had
provided that joyriding is a separate offense for each day in which
a motor vehicle is operated without the owner's consent.
Cf.
Blockburger v. United States, 284 U.S. at
284 U. S. 302.
We also would have a different case if in sustaining Brown's second
conviction the Ohio courts had construed the joyriding statute to
have that effect. We then would have to decide whether the state
courts' construction, applied retroactively in this case, was such
"an unforeseeable judicial enlargement of a criminal statute" as to
violate due process.
See Bouie v. City of Columbia,
378 U. S. 347,
378 U. S. 353
(1964);
cf. In re Snow, 120 U. S. 274,
120 U. S.
283-286 (1887);
Crepps v. Durden, 2 Cowper 640
(K.B. 1777).
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins,
concurring.
I join the Court's opinion, but in any event would reverse on
the ground, not addressed by the Court, that the State did not
prosecute petitioner in a single proceeding. I adhere to the view
that the Double Jeopardy Clause of the Fifth Amendment, applied to
the States through the Fourteenth Amendment, requires the
prosecution in one proceeding, except in extremely limited
circumstances not present here, of "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.
453-454, and n. 7 (1970) (BRENNAN, J., concurring).
See Thompson v. Oklahoma, 429 U.S. 1053 (1977) (BRENNAN,
J., dissenting from denial of certiorari), and cases collected
therein. In my view the Court's suggestion,
ante at
432 U.S. 169 n. 8, that the
Ohio Legislature might be free to make joyriding a separate and
distinct offense for each day a motor vehicle is operated without
the owner's consent would not affect the applicability of the
single-transaction test. Though, under some circumstances, a
legislature may divide a continuing course of conduct into discrete
offenses, I would nevertheless hold that all charges growing out of
conduct constituting a "single criminal act, occurrence, episode,
or transaction" must be tried in a single proceeding.
MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE and MR.
JUSTICE REHNQUIST join, dissenting.
The Court reverses the judgment of the Ohio Court of Appeals
because the Court does not wish this case to slip by
Page 432 U. S. 171
without taking advantage of the opportunity to pronounce some
acceptable but hitherto unenunciated (at this level) double
jeopardy law. I dissent because, in my view, this case does not
deserve that treatment.
I, of course, have no quarrel with the Court's general double
jeopardy analysis.
See Jeffers v. United States, ante p.
432 U. S. 137. I
am unable to ignore as easily as the Court does, however, the
specific finding of the Ohio Court of Appeals that the two
prosecutions at issue here were based on petitioner's separate and
distinct acts committed, respectively, on November 29 and on
December 8, 1973.
Petitioner was convicted of operating a motor vehicle on
December 8 without the owner's consent. He subsequently was
convicted of taking and operating the same motor vehicle on
November 29 without the owner's consent and with the intent
permanently to deprive the owner of possession. It is possible, of
course, that at some point the two acts would be so closely
connected in time that the Double Jeopardy Clause would require
treating them as one offense. This surely would be so with respect
to the theft and any simultaneous unlawful operation. Furthermore,
as a matter of statutory construction, the allowable unit of
prosecution may be a course of conduct rather than the separate
segments of such a course.
See, e.g., United States v.
Universal C. I.T. Credit Corp., 344 U.
S. 218 (1952). I feel that neither of these approaches
justifies the Court's result in the present case.
Nine days elapsed between the two incidents that are the basis
of petitioner's convictions. During that time the automobile moved
from East Cleveland to Wickliffe. It strains credulity to believe
that petitioner was operating the vehicle every minute of those
nine days. A time must have come when he stopped driving. the car.
When he operated it again nine days later in a different community,
the Ohio courts could properly find, consistently with the Double
Jeopardy Clause, that the acts were sufficiently distinct to
justify a
Page 432 U. S. 172
second prosecution. Only if the Clause requires the Ohio courts
to hold that the allowable unit of prosecution is the course of
conduct would the Court's result here be correct. On the facts of
this case, no such requirement should be inferred, and the state
courts should be free to construe Ohio's statute as they did.
This Court, I fear, gives undeserved emphasis,
ante at
432 U. S.
163-164, to the Ohio Court of Appeals' passing
observation that the Ohio misdemeanor of joyriding is an element of
the Ohio felony of auto theft. That observation was merely a
preliminary statement, indicating that the theft and any
simultaneous unlawful operation were one and the same. But the Ohio
Court of Appeals then went on flatly to hold that such simultaneity
was not present here. Thus, it seems to me, the Ohio courts did
precisely what this Court,
ante at
432 U.S. 169 n. 8, professes to say
they did not do.
In my view, we should not so willingly circumvent an
authoritative Ohio holding as to Ohio law. I would affirm the
judgment of the Court of Appeals.