Blockburger test in Ohio

2023To determine whether a single act or transaction constitutes separate offenses for double jeopardy purposes, the “test to be applied * * * is whether each provision requires proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932). {¶40} The Blockburger test applied here reveals that appellant’s felony possession of firearms convictions required proof of facts which are not required for a conviction for the marihuana possession offenses and seat belt offenses.

2023To determine whether a single act or transaction constitutes separate offenses for double jeopardy purposes, the “test to be applied * * * is whether each provision requires proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932). {¶40} The Blockburger test applied here reveals that appellant’s felony possession of firearms convictions required proof of facts which are not required for a conviction for the marihuana possession offenses and seat belt offenses.

2024The United States Supreme Court has summarized the Blockburger test as an inquiry that asks “whether each offense contains an element not contained in the other; if not, they are the ‘same offence’ and double jeopardy bars additional punishment and successive prosecution.” United States v. Dixon, 509 U.S. 688, 696 , 113 S.Ct. 2849 , 125 L.Ed.2d 556 (1993). {¶24} In the felony indictment in this case, Rocubert is charged in each count with Aggravated Vehicular Homicide in violation of R.C. 2903.06(A)(1)(a), which provides, in relevant part: No person, while operating or participating in the ope

2024The United States Supreme Court has summarized the Blockburger test as an inquiry that asks “whether each offense contains an element not contained in the other; if not, they are the ‘same offence’ and double jeopardy bars additional punishment and successive prosecution.” United States v. Dixon, 509 U.S. 688, 696 , 113 S.Ct. 2849 , 125 L.Ed.2d 556 (1993). {¶24} In the felony indictment in this case, Rocubert is charged in each count with Aggravated Vehicular Homicide in violation of R.C. 2903.06(A)(1)(a), which provides, in relevant part: No person, while operating or participating in the ope

2014Therefore, just because some courts have held that the 5 In Wisconsin v. Mitchell, 508 U.S. 476 , 113 S.Ct. 2194 , 124 L.Ed.2d 436 (1993), a defendant unsuccessfully challenged enhanced penalty provision for hate crimes as violating First Amendment. 6 See also Rutledge v. United States, 517 U.S. 292, 297 , 116 S.Ct. 1241 , 134 L.Ed.2d 419 (1996) (holding that when two statutes define the “same offense,” the Blockburger test presumes that the imposition of dual punishments for simultaneous violation of both statutes violates double jeopardy; Brown v. Ohio, 432 U.S. 161, 168-169 , 97 S.Ct. 2221

2014Therefore, just because some courts have held that the 5 In Wisconsin v. Mitchell, 508 U.S. 476 , 113 S.Ct. 2194 , 124 L.Ed.2d 436 (1993), a defendant unsuccessfully challenged enhanced penalty provision for hate crimes as violating First Amendment. 6 See also Rutledge v. United States, 517 U.S. 292, 297 , 116 S.Ct. 1241 , 134 L.Ed.2d 419 (1996) (holding that when two statutes define the “same offense,” the Blockburger test presumes that the imposition of dual punishments for simultaneous violation of both statutes violates double jeopardy; Brown v. Ohio, 432 U.S. 161, 168-169 , 97 S.Ct. 2221

2004In State v. Uskert (1999), 85 Ohio St.3d 593 , 595 , the Supreme Court of Ohio discussed double jeopardy as follows: {¶ 50} "As this court recognized recently, `the Double Jeopardy Clause of each Constitution prohibits (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense'." State v. Gustafson (1996), 76 Ohio St.3d at 432 , 1996-Ohio-425 citing United States v. Halper (1989), 490 U.S. 435 , 440 , 109 S.Ct. 1892 , 1897 , 104 L.Ed.2d 487 , 496 . {¶ 51} As stated by the Ohio

2004In State v. Uskert (1999), 85 Ohio St.3d 593 , 595 , the Supreme Court of Ohio discussed double jeopardy as follows: {¶ 50} "As this court recognized recently, `the Double Jeopardy Clause of each Constitution prohibits (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense'." State v. Gustafson (1996), 76 Ohio St.3d at 432 , 1996-Ohio-425 citing United States v. Halper (1989), 490 U.S. 435 , 440 , 109 S.Ct. 1892 , 1897 , 104 L.Ed.2d 487 , 496 . {¶ 51} As stated by the Ohio

2008In Whalen, Justice Rehnquist favored a comparison of the statutes in the abstract over a comparison of the crimes as charged: “[BJecause the Blockburger test is simply an attempt to determine legislative intent, it seems more natural to apply it to the language as drafted by the legislature than to the wording of a particular indictment.” Whalen at 711, 100 S.Ct. 1432 , 63 L.Ed.2d 715 (Rehnquist, J., dissenting). {¶ 21} In Cabrales, we acknowledged that Ranee has “produced inconsistent, unreasonable, and, at times, absurd results.” Cabrales, 118 Ohio St.3d 54 , 2008-Ohio-1625 , 886 N.E.2d 181,

2008In Whalen, Justice Rehnquist favored a comparison of the statutes in the abstract over a comparison of the crimes as charged: “[BJecause the Blockburger test is simply an attempt to determine legislative intent, it seems more natural to apply it to the language as drafted by the legislature than to the wording of a particular indictment.” Whalen at 711, 100 S.Ct. 1432 , 63 L.Ed.2d 715 (Rehnquist, J., dissenting). {¶ 21} In Cabrales, we acknowledged that Ranee has “produced inconsistent, unreasonable, and, at times, absurd results.” Cabrales, 118 Ohio St.3d 54 , 2008-Ohio-1625 , 886 N.E.2d 181,

2015But just as it is unnecessary to apply the Blockburger test where there exists a clearer indication of legislative intent, Missouri v. Hunter, 459 U.S. 359, 367 , 103 S.Ct. 673 , 74 L.Ed.2d 535 (1983), this court has recognized that it is unnecessary to compare the elements of offenses in cases in which the legislative import may be apparent on the face of a statute itself.

2015But just as it is unnecessary to apply the Blockburger test where there exists a clearer indication of legislative intent, Missouri v. Hunter, 459 U.S. 359, 367 , 103 S.Ct. 673 , 74 L.Ed.2d 535 (1983), this court has recognized that it is unnecessary to compare the elements of offenses in cases in which the legislative import may be apparent on the face of a statute itself.

2005The Supreme Court stated, "where a legislature expresses its intent to permit cumulative punishments for such crimes, the Blockburger test must yield." Id. {¶ 9} Continuing, the Supreme Court found in Rance that the legislature expressed its intent in R.C. 2941.25 , Ohio's multiple-count statute, to permit, in appropriate cases, cumulative punishments for the same conduct. 1 Id. at 639 .

2005The Supreme Court stated, "where a legislature expresses its intent to permit cumulative punishments for such crimes, the Blockburger test must yield." Id. {¶ 9} Continuing, the Supreme Court found in Rance that the legislature expressed its intent in R.C. 2941.25 , Ohio's multiple-count statute, to permit, in appropriate cases, cumulative punishments for the same conduct. 1 Id. at 639 .

1999In Grady v. Corbin (1990), 495 U.S. 508 , the Court recognized the continuing validity of the Blockburger test.

1999In Grady v. Corbin (1990), 495 U.S. 508 , the Court recognized the continuing validity of the Blockburger test.

2017State v. Zima, 102 Ohio St.3d 61 , 2004-Ohio-1807 , 806 N.E.2d 542, ¶ 17 , citing State v. Best, 42 Ohio St.2d 530, 533 , 330 N.E.2d 421 (1975). “[T]he state and the city are parts of a single sovereignty, and double jeopardy stands as a bar to a prosecution by one, after an accused has been in jeopardy for the same offense in a prosecution by the other.” Best at 533 , citing Waller v. Florida, 397 U.S. 387 , 90 S.Ct. 1184 , 25 L.Ed.2d 435 (1970). *434 {¶ 17} This court has relied on the Blockburger test to determine whether two prosecutions involve the same offense.

2017State v. Zima, 102 Ohio St.3d 61 , 2004-Ohio-1807 , 806 N.E.2d 542, ¶ 17 , citing State v. Best, 42 Ohio St.2d 530, 533 , 330 N.E.2d 421 (1975). “[T]he state and the city are parts of a single sovereignty, and double jeopardy stands as a bar to a prosecution by one, after an accused has been in jeopardy for the same offense in a prosecution by the other.” Best at 533 , citing Waller v. Florida, 397 U.S. 387 , 90 S.Ct. 1184 , 25 L.Ed.2d 435 (1970). *434 {¶ 17} This court has relied on the Blockburger test to determine whether two prosecutions involve the same offense.

2008Furthermore, “the Blockburger test can be used to ascertain whether the legislature intended to have a single transaction constitute separate offenses even though they are proscribed by a single statutory provision.” State v. Delfino (1986), 22 Ohio St.3d 270, 273 , 22 OBR 443, 490 N.E.2d 884 , citing United States v. Davis (C.A.5, 1981), 656 F.2d 153 .

2008Furthermore, “the Blockburger test can be used to ascertain whether the legislature intended to have a single transaction constitute separate offenses even though they are proscribed by a single statutory provision.” State v. Delfino (1986), 22 Ohio St.3d 270, 273 , 22 OBR 443, 490 N.E.2d 884 , citing United States v. Davis (C.A.5, 1981), 656 F.2d 153 .

1999See Ohio v. Johnson (1984), 467 U.S. 493, 499 , 104 S.Ct. 2536, 2541 , 81 L.Ed.2d 425, 433 . {¶ 10} We agree, therefore, with the state’s contention that the familiar Blockburger test, which is a rule of statutory construction, is not useful where the General Assembly’s intent is clear. “[T]he Blockburger rule is not controlling when 4 January Term, 1999 the legislative intent is clear from the face of the statute or the legislative history.” Garrett v. United States (1985), 471 U.S. 773, 779 , 105 S.Ct. 2407, 2411 , 85 L.Ed.2d 764, 771 .

1999See Ohio v. Johnson (1984), 467 U.S. 493, 499 , 104 S.Ct. 2536, 2541 , 81 L.Ed.2d 425, 433 . {¶ 10} We agree, therefore, with the state’s contention that the familiar Blockburger test, which is a rule of statutory construction, is not useful where the General Assembly’s intent is clear. “[T]he Blockburger rule is not controlling when 4 January Term, 1999 the legislative intent is clear from the face of the statute or the legislative history.” Garrett v. United States (1985), 471 U.S. 773, 779 , 105 S.Ct. 2407, 2411 , 85 L.Ed.2d 764, 771 .

2005Albernaz v. United States (1981), 450 U.S. 333 , 101 S.Ct. 1137 , 67 L.Ed.2d 275 . “[T]he Blockburger rule is not controlling when the legislative intent is clear from the face of the statute or the legislative history.” Garrett v. United States (1985), 471 U.S. 773, 779 , 105 S.Ct. 2407, 2411 , 85 L.Ed.2d 764 .

2005Albernaz v. United States (1981), 450 U.S. 333 , 101 S.Ct. 1137 , 67 L.Ed.2d 275 . “[T]he Blockburger rule is not controlling when the legislative intent is clear from the face of the statute or the legislative history.” Garrett v. United States (1985), 471 U.S. 773, 779 , 105 S.Ct. 2407, 2411 , 85 L.Ed.2d 764 .

2008Essentially, ‘[i]f 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.’ ” State v. Tolbert, supra, 60 Ohio St.3d at 91 , 573 N.E.2d 617, fn. 3 , quoting Iannelli v. United States (1975), 420 U.S. 770, 785 , 95 S.Ct. 1284 , 43 L.Ed.2d 616, fn. 17 .

2008Essentially, ‘[i]f 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.’ ” State v. Tolbert, supra, 60 Ohio St.3d at 91 , 573 N.E.2d 617, fn. 3 , quoting Iannelli v. United States (1975), 420 U.S. 770, 785 , 95 S.Ct. 1284 , 43 L.Ed.2d 616, fn. 17 .

2014Illinois v. Vitale, 447 U.S. 410, 416 , 100 S.Ct. 2260 , 65 L.Ed.2d 228 (1980). {¶14} The Blockburger test, however, is not controlling in cases where the legislature manifests a clear rule for determining what constitutes the same offense.

2014Illinois v. Vitale, 447 U.S. 410, 416 , 100 S.Ct. 2260 , 65 L.Ed.2d 228 (1980). {¶14} The Blockburger test, however, is not controlling in cases where the legislature manifests a clear rule for determining what constitutes the same offense.

2006And 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. {¶ 27} "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. * * * 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 gau

2006And 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. {¶ 27} "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. * * * 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 gau

2018Mutter at ¶ 18, citing Diaz v. United States, 223 U.S. 442 , 32 S.Ct. 250 , 56 L.Ed. 50 (1912) (prosecution for homicide not barred after conviction for assault and battery when victim died after conviction); Garrett v. United States, 471 U.S. 773, 778 , 105 S.Ct. 2407 , 85 L.Ed.2d 764 (1985) (addressing continuing criminal enterprise); and Ohio v. Johnson, 467 U.S. 493, 501 , 104 S.Ct. 2536 , 81 L.Ed.2d 425 (1984) (in prosecution on multiple offenses, defendant’s plea to certain charges did not bar continued prosecution of remaining charges).

2018Mutter at ¶ 18, citing Diaz v. United States, 223 U.S. 442 , 32 S.Ct. 250 , 56 L.Ed. 50 (1912) (prosecution for homicide not barred after conviction for assault and battery when victim died after conviction); Garrett v. United States, 471 U.S. 773, 778 , 105 S.Ct. 2407 , 85 L.Ed.2d 764 (1985) (addressing continuing criminal enterprise); and Ohio v. Johnson, 467 U.S. 493, 501 , 104 S.Ct. 2536 , 81 L.Ed.2d 425 (1984) (in prosecution on multiple offenses, defendant’s plea to certain charges did not bar continued prosecution of remaining charges).

2006Id. {¶ 10} In Ohio, it is unnecessary to resort to the Blockburger test in determining whether cumulative punishments imposed within a single trial for more than one offense resulting from the same criminal conduct violate the federal and state constitutional provisions against double jeopardy.

2006Id. {¶ 10} In Ohio, it is unnecessary to resort to the Blockburger test in determining whether cumulative punishments imposed within a single trial for more than one offense resulting from the same criminal conduct violate the federal and state constitutional provisions against double jeopardy.

2008Furthermore, “the Blockburger test can be used to ascertain whether the legislature intended to have a single transaction constitute separate offenses even though they are proscribed by a single statutory provision.” State v. Delfino (1986), 22 Ohio St.3d 270, 273 , 22 OBR 443, 490 N.E.2d 884 , citing United States v. Davis (C.A.5, 1981), 656 F.2d 153 .

2008Furthermore, “the Blockburger test can be used to ascertain whether the legislature intended to have a single transaction constitute separate offenses even though they are proscribed by a single statutory provision.” State v. Delfino (1986), 22 Ohio St.3d 270, 273 , 22 OBR 443, 490 N.E.2d 884 , citing United States v. Davis (C.A.5, 1981), 656 F.2d 153 .

2004See, also, Pandelli v. United States (C.A.6, 1980), 635 F.2d 533, 537 (“The theory behind the [Whalen] analysis is that a criminal statute written in the alternative creates a separate offense for each alternative and should therefore be treated for double jeopardy purposes as separate statutes would”). 3 William D.

2004See, also, Pandelli v. United States (C.A.6, 1980), 635 F.2d 533, 537 (“The theory behind the [Whalen] analysis is that a criminal statute written in the alternative creates a separate offense for each alternative and should therefore be treated for double jeopardy purposes as separate statutes would”). 3 William D.

2023The Blockburger test “is a rule of statutory construction and is not controlling where there is a clear indication of legislative intent.” State v. Bickerstaff, 10 Ohio St.3d 62 , 461 N.E.2d 892, fn. 1 (1984).

2023The Blockburger test “is a rule of statutory construction and is not controlling where there is a clear indication of legislative intent.” State v. Bickerstaff, 10 Ohio St.3d 62 , 461 N.E.2d 892, fn. 1 (1984).