Double jeopardy does not bar successive prosecution when each offense contains a statutory element not present in the others under the Blockburger test.
A defendant convicted of fleeing a police officer and driving with a suspended license moves to dismiss a pending fourth-offense driving under the influence charge on double jeopardy grounds. The trial court grants the motion based on the Grady test. The appellate court must determine whether the subsequent Supreme Court decision in Dixon, which overruled Grady and reinstated the Blockburger same-elements test, applies retroactively to cases pending on appeal. The court holds that Dixon applies because the case was on appeal when decided. Applying the same-elements test, the court finds that each charged offense contains a statutory element not present in the others. Consequently, double jeopardy does not bar the prosecution of the driving under the influence charge, and the dismissal is reversed.
Other citing cases
- Michael J. Kurzawa v. Eurial K. Jordan, 146 F.3d 435 (7th Cir. 1998).published
- State v. Mateen, 678 So. 2d 449 (Fla. 2d DCA 1996).published
v.
Jerry GREGORY
The State of Florida seeks review of the trial court’s dismissal of a charge against Jerry Gregory on double jeopardy grounds. We reverse on the authority of United States v. Dixon, — U.S. —, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993), and remand for further prosecution.
The state charged Gregory with driving under the influence (D.U.I.) as a fourth offense, fleeing and attempting to elude a police officer and driving with a suspended license. Gregory pled guilty to the charges of fleeing a police officer and driving with a suspended license. He was sentenced to jail terms of nine months for each of these charges, to run concurrently. He then moved to dismiss the D.U.I. charge on double jeopardy grounds. The trial court granted his motion, relying on Grady v. Corbin, 495 U.S. 508,110 S.Ct. 2084, 109 L.Ed.2d 548 (1990).
The state points out that the United States Supreme Court overruled Grady in Dixon. It asserts that Dixon is applicable here because this ease was pending on appeal at the time Dixon was decided. We agree. See State v. Murray, 644 So.2d 533 (Fla. 4th DCA 1994) (“[bjecause this ease is currently on appeal, there is no reason why Dixon should not be applied retroactively”); State v. Dunsford, 634 So.2d 319 n. 1 (Fla. 1st DCA 1994); Hernandez v. Superior Court in and for County of Maricopa, 179 Ariz. 515, 880 P.2d 735 (Ct.App.1994).
Dixon announced a return to the double jeopardy analysis used in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Blockburger established the “same elements” test, which focuses on whether each offense contains a statutory element that is not contained in the other. If each offense has at least one element that the other does not, double jeopardy does not bar multiple punishment and successive prosecution. Dixon, — U.S. at —, 113 S.Ct. at 2856; Blockburger, 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309. The crimes for which the state charged Gregory, driving under the influence, driving with a suspended license and fleeing or attempting to elude a law enforcement officer all contain an element not present in the others. See §§ 316.913, 316.1935, 322.34, Fla.Stat. (1991). While Gregory does not even argue that he would prevail under the “same elements” test, we note that, under Dixon, prosecution of the D.U.I. charge is not barred by double jeopardy. We reverse and remand for further prosecution.
Reversed and remanded.
PATTERSON and FULMER, JJ., concur.