double jeopardy clause in Kentucky

2025“The double jeopardy clause of the Fifth Amendment to the United States Constitution provides in pertinent part that no person shall ‘be subject for the same offen[s]e to be twice put in jeopardy of life or limb.’ Kentucky’s Constitution includes a virtually identical provision in § 13.” Commonwealth v. Burge, 947 S.W.2d 805, 809 (Ky. 1996).

2020Here, no double jeopardy violation occurred because a conviction under both charges does not violate the Blockburger same-elements test, “which is the test we typically employ to determine if multiple convictions have been improperly imposed for the same conduct in violation of the double jeopardy clause of the Fifth Amendment.” Kiper v. Commonwealth, 399 S.W.3d 736, 742 (Ky. 2012) (citing Burge, 947 S.W.2d at 811 ).

2024This Court has repeatedly held “[t]he remedy for these types of double jeopardy violations is to vacate the conviction for the lesser offense.” Lloyd v. Commonwealth, 324 S.W.3d 384 , 391 n. 26 (Ky. 2010); Brown v. Commonwealth, 297 S.W.3d 557 , 562–563 (Ky. 2009) (“Given that first-degree fleeing or evading police is a felony and that second-degree wanton endangerment is a misdemeanor, the remedy is to vacate the lesser offenses of wanton endangerment”); Clark v. Commonwealth, 267 S.W.3d 668, 678 (Ky. 2008) (When a person is improperly convicted of two or more offenses arising “out of a singl

2016“If, however, the exact same facts could prove the commission of two separate offenses, then the double jeopardy clause mandates that while a defendant may be prosecuted under both offenses, he may be convicted under only one of the statutes.” Clark v. Commonwealth, 267 S.W.3d 668, 675 (Ky. 2008).

2023To determine whether a double jeopardy violation has occurred, Kentucky courts use the test outlined in Blockburger v. United States, 284 U.S. 299, 304 (1932), to determine whether each charge requires proof of a fact that the other does not.3 We review Howell’s acts under the framework of the sexual abuse statute to determine whether the convictions violate double jeopardy.

2023To determine whether a double jeopardy violation has occurred, Kentucky courts use the test outlined in Blockburger v. United States, 284 U.S. 299, 304 (1932), to determine whether each charge requires proof of a fact that the other does not.3 We review Howell’s acts under the framework of the sexual abuse statute to determine whether the convictions violate double jeopardy.

2008Dishman v. Commonwealth, 906 S.W.2d 335, 341 (Ky.1995) (citing United States v. Felix, 503 U.S. 378 , 112 S.Ct. 1377 , 118 L.Ed.2d 25 (1992)).

2008Dishman v. Commonwealth, 906 S.W.2d 335, 341 (Ky.1995) (citing United States v. Felix, 503 U.S. 378 , 112 S.Ct. 1377 , 118 L.Ed.2d 25 (1992)).

1995Walden, supra; Ingram, supra. An overlap of proof does not necessarily establish a double jeopardy violation.

1995Walden, supra; Ingram, supra. An overlap of proof does not necessarily establish a double jeopardy violation.

2023See Cardine v. Commonwealth, 283 S.W.3d 641, 652 (Ky. 2009).2 The double jeopardy clause of the Fifth Amendment of the United States Constitution provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb[.]” Section 13 of the Kentucky Constitution contains similar language.

2021This issue was unpreserved at trial, so we review for palpable error.2 We will uphold the judgment unless the error created a manifest injustice that clearly deprived Towe of a fair trial.3 We have held that a double-jeopardy violation results in manifest injustice, so a finding that Towe was convicted twice for the same conduct will warrant a reversal of his convictions.4 We review the sufficiency of jury instructions de novo.5 We find the jury instructions sufficiently differentiated the culpable conduct for sexual abuse and sodomy, so Towe’s convictions under both did 2 Martin v. Commonweal

2014See also Jackson v. Commonwealth, 670 S.W.2d 828 (Ky.1984), overruled on other grounds by Cooley v. Commonwealth, 821 S.W.2d 90 (Ky.1991) (theft of a radio scanner and guns from the same residence at the same time did not constitute two thefts; expressly recognizing Double Jeopardy violation on appeal despite the defendant’s failure to raise the issue in the trial court).

1992In Cooley v. Commonwealth, Ky., 821 S.W.2d 90 (1991), we said that the beginning point in a double jeopardy analysis is a determination of whether the Legislature intended to impose multiple or cumulative punishments for the same act or course of conduct.

2025However, our Supreme Court has observed a rule established by the United States Supreme Court that where “the double jeopardy violation is clear from the record without the need for additional fact finding, a guilty plea does not preclude subsequent relief.” Henry v. Commonwealth, 275 S.W.3d 194, 202 (Ky. 2008), overruled on other grounds by Rose v. Commonwealth, 322 S.W.3d 76 (Ky. 2010) (citing United States v. Broce, 488 U.S. 563 (1989)).

2023But our Supreme Court explicitly held in Henry, supra, that an express waiver in exchange for a benefit validly waives a defendant’s ability to raise a double jeopardy claim on appeal.

1995Walden, supra; Ingram, supra. An overlap of proof does not necessarily establish a double jeopardy violation.

1995Walden, supra; Ingram, supra. An overlap of proof does not necessarily establish a double jeopardy violation.

2009In Sherley v. Commonwealth, 558 S.W.2d 615, 618 (Ky.1977), overruled on other grounds by Dixon v. Commonwealth, 263 S.W.3d 583 (Ky.2008), this Court heard a double jeopardy claim even though it was not raised at trial.

2009A failure to object to a double jeopardy violation does "not constitute a waiver of the right to raise the issue for the first time on appellate review.” Gunter v. Commonwealth, 576 S.W.2d 518, 522 (Ky.1978) (citing Sherley v. Commonwealth, 558 S.W.2d 615, 617 (Ky.1977)). 24 .

2025Kiper v. Commonwealth, 399 S.W.3d 736, 740 (Ky. 2012).

2020Here, no double jeopardy violation occurred because a conviction under both charges does not violate the Blockburger same-elements test, “which is the test we typically employ to determine if multiple convictions have been improperly imposed for the same conduct in violation of the double jeopardy clause of the Fifth Amendment.” Kiper v. Commonwealth, 399 S.W.3d 736, 742 (Ky. 2012) (citing Burge, 947 S.W.2d at 811 ).

2009A failure to object to a double jeopardy violation does "not constitute a waiver of the right to raise the issue for the first time on appellate review.” Gunter v. Commonwealth, 576 S.W.2d 518, 522 (Ky.1978). 23 .

2009A failure to object to a double jeopardy violation does "not constitute a waiver of the right to raise the issue for the first time on appellate review.” Gunter v. Commonwealth, 576 S.W.2d 518, 522 (Ky.1978) (citing Sherley v. Commonwealth, 558 S.W.2d 615, 617 (Ky.1977)). 24 .

2024This Court has repeatedly held “[t]he remedy for these types of double jeopardy violations is to vacate the conviction for the lesser offense.” Lloyd v. Commonwealth, 324 S.W.3d 384 , 391 n. 26 (Ky. 2010); Brown v. Commonwealth, 297 S.W.3d 557 , 562–563 (Ky. 2009) (“Given that first-degree fleeing or evading police is a felony and that second-degree wanton endangerment is a misdemeanor, the remedy is to vacate the lesser offenses of wanton endangerment”); Clark v. Commonwealth, 267 S.W.3d 668, 678 (Ky. 2008) (When a person is improperly convicted of two or more offenses arising “out of a singl

2012However, we have repeatedly held that “[t]he remedy for these types of double jeopardy violations is to vacate the conviction for the lesser offense.” Lloyd v. Commonwealth, 324 S.W.3d 384 , 391 n. 26 (Ky.2010); Brown v. Commonwealth, 297 S.W.3d 557, 562-563 (Ky.2009) (“Given that first-degree fleeing or evading police is a felony and that second-degree wanton endangerment is a misdemeanor, the remedy is to vacate the lesser offenses of wanton endangerment.”); Clark v. Commonwealth, 267 S.W.3d 668, 678 (Ky.2008) (When a person is improperly convicted of two or more offenses arising “out of a s

2022The Commonwealth notes that if there is a double-jeopardy violation, the appropriate remedy would be for the Court to vacate or reverse the lesser included charge. “[A]n appellant’s failure to present a double-jeopardy argument to the trial court should not result in allowing a conviction that violates double jeopardy to stand.” Early v. Commonwealth, 470 S.W.3d 729, 737 (Ky. 2015).

2019Under our jurisprudence “[djouble jeopardy does not occur when a person is charged with specifically the matter to which the party objects and the ground or grounds of the objection.” 11 Early v. Commonwealth, 470 S.W.3d 729, 737 (Ky. 2015). (“Initially, we note that this issue is unpreserved.

2021STANDARD OF REVIEW “The double jeopardy clause prohibits a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense.” Foley v. Commonwealth, 233 S.W.3d 734, 736 (Ky. App. 2007) (citing Brown v. Ohio, 432 U.S. 161, 165 , 97 S. Ct. 2221, 2225 , 53 L.

2021STANDARD OF REVIEW “The double jeopardy clause prohibits a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense.” Foley v. Commonwealth, 233 S.W.3d 734, 736 (Ky. App. 2007) (citing Brown v. Ohio, 432 U.S. 161, 165 , 97 S. Ct. 2221, 2225 , 53 L.

2025However, “[o]ur double jeopardy analysis focuses solely on ‘whether each statute, on its face, contains a different element,’ Dixon v. Commonwealth, 263 S.W.3d 583, 591 (Ky. 2008), and ‘not the charging information, jury instruction, underlying proof needed, or the actual evidence presented at trial.’ Id. at 591 n.30 (quoting 21 Am.Jur.2d Criminal Law § 302 (2008)).” Kelly v. Commonwealth, 655 S.W.3d 154 , 162 (Ky. 2022). 5 Because McAuley does not raise a double jeopardy challenge to his conviction for possession of matter portraying a sexual performance by a minor, we will not analyze that c

2025However, “[o]ur double jeopardy analysis focuses solely on ‘whether each statute, on its face, contains a different element,’ Dixon v. Commonwealth, 263 S.W.3d 583, 591 (Ky. 2008), and ‘not the charging information, jury instruction, underlying proof needed, or the actual evidence presented at trial.’ Id. at 591 n.30 (quoting 21 Am.Jur.2d Criminal Law § 302 (2008)).” Kelly v. Commonwealth, 655 S.W.3d 154 , 162 (Ky. 2022). 5 Because McAuley does not raise a double jeopardy challenge to his conviction for possession of matter portraying a sexual performance by a minor, we will not analyze that c

1985Stamps v. Commonwealth, Ky., 648 S.W.2d 868, 869 (1983), specifically applies the holding in Oregon v. Kennedy, 456 U.S. 667 , 102 S.Ct. 2083 , 72 L.Ed.2d 416 (1982), to the double jeopardy clause in Kentucky.

1985Stamps v. Commonwealth, Ky., 648 S.W.2d 868, 869 (1983), specifically applies the holding in Oregon v. Kennedy, 456 U.S. 667 , 102 S.Ct. 2083 , 72 L.Ed.2d 416 (1982), to the double jeopardy clause in Kentucky.

2002None of the elements of the registration act run afoul of the double jeopardy analysis provided by this Court in Hourigan v. Commonwealth, Ky., 962 S.W.2d 860 (1998), or the United States Supreme Court in Hudson v. United States, 522 U.S. 93 , 118 S.Ct. 488 , 139 L.Ed.2d 450 (1997).

2002None of the elements of the registration act run afoul of the double jeopardy analysis provided by this Court in Hourigan v. Commonwealth, Ky., 962 S.W.2d 860 (1998), or the United States Supreme Court in Hudson v. United States, 522 U.S. 93 , 118 S.Ct. 488 , 139 L.Ed.2d 450 (1997).

2018Grundy v. Commonwealth, 25 S.W.3d 76, 87 (Ky. 2000).

2010We have previously expressed our disagreement with this position: “KRS 511.020(l)(b) requires no culpable mental state to prove the ‘physical injury’ aggra-vator, and a defendant may be found guilty of burglary first degree upon the physical injury of any nonparticipant if the injury is casually connected, pursuant to 501.060, to his conduct.” Grundy v. Commonwealth, 25 S.W.3d 76 , 87 n. 36 (Ky.2000).