double jeopardy clause in Virgin Islands

2015The pivotal question in determining whether a double jeopardy violation has occurred is determining the “unit of prosecution.” Id. (citing Bell v. United States, 349 U.S. 81, 83 , 75 S. Ct. 620 , 99 L.

2015Castillo v. People, 59 V.I. 240, 285 (V.I. 2013) (Hodge, C.J., concurring in part).

2013See Blockburger v. United States, 284 U.S. 299, 304 , 52 S. Ct. 180 , 76 L.

2013See Blockburger v. United States, 284 U.S. 299, 304 , 52 S. Ct. 180 , 76 L.

2024We have found that where the Superior Court enters a judgment of acquittal after a jury has rendered a guilty verdict, the “People may . . . appeal from that ruling without subjecting the defendant to double jeopardy.” People v. Clarke, 55 V.1. 473, 477 (V.I. 2011) (citing Smith v. Massachusetts, 543 U.S. 462, 467 (2005)).

2016LEXIS 9473 (Cal. Ct. App. Oct. 19, 2004) (unpublished) (“[T]rial counsel may waive an accused’s double jeopardy rights as a matter of trial tactics.”) (citing People v. Brandon, 40 Cal. App. 4th 1172 , 47 Cal. Rptr. 2d 383, 385 (1995)); Poretta v. Commonwealth, 409 Mass. 763 , 569 N.E.2d 794, 796 (1991) (“[TJhere can be no doubt that the Federal Constitution does not condition the permissibility of retrial on the defendant’s personal, explicit assent to a mistrial motion brought by his attorney.”); People v. Ferguson, 67 N.Y.2d 383 , 494 N.E.2d 77, 80-82 , 502 N.Y.S.2d 972 (1986) (holding that

2016LEXIS 9473 (Cal. Ct. App. Oct. 19, 2004) (unpublished) (“[T]rial counsel may waive an accused’s double jeopardy rights as a matter of trial tactics.”) (citing People v. Brandon, 40 Cal. App. 4th 1172 , 47 Cal. Rptr. 2d 383, 385 (1995)); Poretta v. Commonwealth, 409 Mass. 763 , 569 N.E.2d 794, 796 (1991) (“[TJhere can be no doubt that the Federal Constitution does not condition the permissibility of retrial on the defendant’s personal, explicit assent to a mistrial motion brought by his attorney.”); People v. Ferguson, 67 N.Y.2d 383 , 494 N.E.2d 77, 80-82 , 502 N.Y.S.2d 972 (1986) (holding that

2016LEXIS 9473 (Cal. Ct. App. Oct. 19, 2004) (unpublished) (“[T]rial counsel may waive an accused’s double jeopardy rights as a matter of trial tactics.”) (citing People v. Brandon, 40 Cal. App. 4th 1172 , 47 Cal. Rptr. 2d 383, 385 (1995)); Poretta v. Commonwealth, 409 Mass. 763 , 569 N.E.2d 794, 796 (1991) (“[TJhere can be no doubt that the Federal Constitution does not condition the permissibility of retrial on the defendant’s personal, explicit assent to a mistrial motion brought by his attorney.”); People v. Ferguson, 67 N.Y.2d 383 , 494 N.E.2d 77, 80-82 , 502 N.Y.S.2d 972 (1986) (holding that

2016LEXIS 9473 (Cal. Ct. App. Oct. 19, 2004) (unpublished) (“[T]rial counsel may waive an accused’s double jeopardy rights as a matter of trial tactics.”) (citing People v. Brandon, 40 Cal. App. 4th 1172 , 47 Cal. Rptr. 2d 383, 385 (1995)); Poretta v. Commonwealth, 409 Mass. 763 , 569 N.E.2d 794, 796 (1991) (“[TJhere can be no doubt that the Federal Constitution does not condition the permissibility of retrial on the defendant’s personal, explicit assent to a mistrial motion brought by his attorney.”); People v. Ferguson, 67 N.Y.2d 383 , 494 N.E.2d 77, 80-82 , 502 N.Y.S.2d 972 (1986) (holding that

2016LEXIS 9473 (Cal. Ct. App. Oct. 19, 2004) (unpublished) (“[T]rial counsel may waive an accused’s double jeopardy rights as a matter of trial tactics.”) (citing People v. Brandon, 40 Cal. App. 4th 1172 , 47 Cal. Rptr. 2d 383, 385 (1995)); Poretta v. Commonwealth, 409 Mass. 763 , 569 N.E.2d 794, 796 (1991) (“[TJhere can be no doubt that the Federal Constitution does not condition the permissibility of retrial on the defendant’s personal, explicit assent to a mistrial motion brought by his attorney.”); People v. Ferguson, 67 N.Y.2d 383 , 494 N.E.2d 77, 80-82 , 502 N.Y.S.2d 972 (1986) (holding that

2016See, e.g., Jones v. Barnes, 463 U.S. 745, 751 , 103 S. Ct. 3308 , 77 L.

2016See, e.g., Jones v. Barnes, 463 U.S. 745, 751 , 103 S. Ct. 3308 , 77 L.

2013As this Court has previously made clear, section 104 offers protection greater than, and in addition to, the Double Jeopardy Clause, Rawlins v. People, 58 V.I. 261, 275-76 (V.I. 2013) (stating that section 104 “provides greater protections than the Double Jeopardy Clause of the United States Constitution”), and so a section 104 challenge should be addressed separately from any Double Jeopardy analysis.

2013See Hunter, 459 U.S. at 367-68 (noting that the Blockburger test often used in Double Jeopardy analysis is a “rule of statutory construction,” but it does not apply where clear expressions of legislative intent indicate a desire to impose multiple punishments, and in such cases, there is no constitutional violation) (citing Albernaz v. United States, 450 U.S. 333, 344 , 101 S. Ct. 1137 , 67 L.

2013See Hunter, 459 U.S. at 367-68 (noting that the Blockburger test often used in Double Jeopardy analysis is a “rule of statutory construction,” but it does not apply where clear expressions of legislative intent indicate a desire to impose multiple punishments, and in such cases, there is no constitutional violation) (citing Albernaz v. United States, 450 U.S. 333, 344 , 101 S. Ct. 1137 , 67 L.

2013In Soto, the Third Circuit considered the United States Supreme Court’s synthesis of this aspect of the Double Jeopardy doctrine as set forth in Missouri v. Hunter, 459 U.S. 359, 365-69 , 103 S. Ct. 673 , 74 L.

2013In Soto, the Third Circuit considered the United States Supreme Court’s synthesis of this aspect of the Double Jeopardy doctrine as set forth in Missouri v. Hunter, 459 U.S. 359, 365-69 , 103 S. Ct. 673 , 74 L.

2013See Beazer East, Inc. v. Mead Corp., 525 F.3d 255, 263 (3d Cir. 2008) (“any issue that could have been but was not raised on appeal is waived”) (internal citation and quotation marks omitted).

2012Section 33(d)(5) further requires that an “appeal in all such cases shall be taken within thirty days after the decision, judgment or order has been rendered and shall be diligently prosecuted.” In First American Development Group/Carib, LLC v. WestLB AG, this Court recognized that the thirty day time limitation found in section 33(d)(5) is jurisdictional. 55 V.I. 594, 601 (V.I. 2011) (“When the time to appeal or seek review is established by statute, timeliness is a jurisdictional issue, therefore, a petition filed out of time deprives the court of jurisdiction to entertain the appeal.” (quot

2012Section 33(d)(5) further requires that an “appeal in all such cases shall be taken within thirty days after the decision, judgment or order has been rendered and shall be diligently prosecuted.” In First American Development Group/Carib, LLC v. WestLB AG, this Court recognized that the thirty day time limitation found in section 33(d)(5) is jurisdictional. 55 V.I. 594, 601 (V.I. 2011) (“When the time to appeal or seek review is established by statute, timeliness is a jurisdictional issue, therefore, a petition filed out of time deprives the court of jurisdiction to entertain the appeal.” (quot

2010(See 48 U.S.C. § 1561 (1976)); Government of the Virgin Islands v. Josiah, 641 F.2d 1103 (3d Cir. 1981); Government of the V.I. v. Christiensen, 673 F.2d 713, 717 (3d Cir. 1982)).

2010“Under the double jeopardy clause,” which is also made applicable to the Virgin Islands pursuant to section 3 of the ROA, “an acquittal in abench trial is conclusive.” Rivera v. Sheriff of Cook County, 162 F.3d 486, 488 (7th Cir. 1998) (citing Finch v. United States, 433 U.S. 676 , 97 S. Ct. 2909 , 53 L.

2009See People v. Moquin, 77 N.Y.2d 449 , 570 N.E.2d 1059, 1061 , 568 N.Y.S.2d 710 (N.Y. 1991) (holding that courts lack inherent authority to vacate plea accepted after erroneous dismissal of first degree murder count because jeopardy attached when judge imposed sentence on lesser charge).

2009See People v. Moquin, 77 N.Y.2d 449 , 570 N.E.2d 1059, 1061 , 568 N.Y.S.2d 710 (N.Y. 1991) (holding that courts lack inherent authority to vacate plea accepted after erroneous dismissal of first degree murder count because jeopardy attached when judge imposed sentence on lesser charge).

2009See U.S. v. Tafoya, 557 F.3d 1121, 1127 (10th Cir. Feb. 24, 2009) (finding of no goading supported by the facts when the government suggested a limiting instruction and argued against a mistrial, provided a rational explanation for the mishap, affirmatively stated no intention to goad, and did not ask a question that implied any intent to goad); see also Oregon v. Kennedy, 456 U.S. 667, 675-76 , 102 S. Ct. 2083 , 72 L.

2009See U.S. v. Tafoya, 557 F.3d 1121, 1127 (10th Cir. Feb. 24, 2009) (finding of no goading supported by the facts when the government suggested a limiting instruction and argued against a mistrial, provided a rational explanation for the mishap, affirmatively stated no intention to goad, and did not ask a question that implied any intent to goad); see also Oregon v. Kennedy, 456 U.S. 667, 675-76 , 102 S. Ct. 2083 , 72 L.

2009See U.S. v. Tafoya, 557 F.3d 1121, 1127 (10th Cir. Feb. 24, 2009) (finding of no goading supported by the facts when the government suggested a limiting instruction and argued against a mistrial, provided a rational explanation for the mishap, affirmatively stated no intention to goad, and did not ask a question that implied any intent to goad); see also Oregon v. Kennedy, 456 U.S. 667, 675-76 , 102 S. Ct. 2083 , 72 L.

2009See Fransaw v. Lynaugh, 810 F.2d 518, 523 (5th Cir. 1987) (collecting cases). 8 But the double jeopardy clause would likely preclude a direct appeal by the People even if jeopardy does not attach until the Superior Court issues a sentencing order.

2009See Fransaw v. Lynaugh, 810 F.2d 518, 523 (5th Cir. 1987) (collecting cases). 8 But the double jeopardy clause would likely preclude a direct appeal by the People even if jeopardy does not attach until the Superior Court issues a sentencing order.

2009Compare, e.g., State v. McAlear, 519 N.W.2d 596, 599 (S.D. 1994) (“In the case of a plea bargain, jeopardy attaches when the court accepts the guilty plea.”) (collecting cases) with State v. Angel, 132 N.M. 501 , 51 P.3d 1155, 1157-59 (2002) (“These cases all support the principle that jeopardy attaches when the court enters a judgment and imposes a sentence on the guilty plea, not when the plea was accepted.”) (collecting cases).

2009Compare, e.g., State v. McAlear, 519 N.W.2d 596, 599 (S.D. 1994) (“In the case of a plea bargain, jeopardy attaches when the court accepts the guilty plea.”) (collecting cases) with State v. Angel, 132 N.M. 501 , 51 P.3d 1155, 1157-59 (2002) (“These cases all support the principle that jeopardy attaches when the court enters a judgment and imposes a sentence on the guilty plea, not when the plea was accepted.”) (collecting cases).

2009Compare, e.g., State v. McAlear, 519 N.W.2d 596, 599 (S.D. 1994) (“In the case of a plea bargain, jeopardy attaches when the court accepts the guilty plea.”) (collecting cases) with State v. Angel, 132 N.M. 501 , 51 P.3d 1155, 1157-59 (2002) (“These cases all support the principle that jeopardy attaches when the court enters a judgment and imposes a sentence on the guilty plea, not when the plea was accepted.”) (collecting cases).

2008Brown v. Ohio, 432 U.S. at 168 (the greater offense is by definition the same offense as the lesser-included offense for double jeopardy purposes); see also Bedford, 671 F.2d at 765 (lesser-included offense would never constitute a different offense and seldom would be an additional offense within the meaning of Rule 7(e) of the Federal Rules of Criminal Procedure).

2008Brown, 432 U.S. at 164 .

2008Brown v. Ohio, 432 U.S. at 168 (the greater offense is by definition the same offense as the lesser-included offense for double jeopardy purposes); see also Bedford, 671 F.2d at 765 (lesser-included offense would never constitute a different offense and seldom would be an additional offense within the meaning of Rule 7(e) of the Federal Rules of Criminal Procedure).