double jeopardy clause in Alaska

2021In any event, as the State points out, the appellate courts have previously upheld operating convictions based on similar facts and Simpson fails to meaningfully distinguish his case from those prior cases.14 Merger of the weapons misconduct convictions Whether guilty verdicts merge into a single conviction is a mixed question of fact and law — the facts underlying the offenses are reviewed for clear error but “[t]he ultimate legal question of merger under the double-jeopardy clause is reviewed de novo.”15 Multiple convictions arising from the same course of conduct do not violate double jeopa

2009In answering the question of whether Cronce could properly receive separate convictions for second-degree assault and third-degree assault, my colleagues apply a constitutional analysis: they conclude that separate convictions are barred by the double jeopardy clause of the Alaska Constitution as construed by our supreme court in Whitton v. State, 479 P.2d 302 (Alaska 1970).

2024It is established law that courts may modify probation or impose suspended time in a manner that is detrimental to the defendant without violating the double jeopardy clause as long as the defendant’s sentence is not increased.23 Unlike in Dodge, where the court’s action increased the original sentence from 1 year to 1 year and 90 days, in Summerall’s case, 22 Id. 23 See Reyes v. State, 978 P.2d 635, 639-40 (Alaska App. 1999). –9– 2788 the total jail time imposed (up to 2 years and 8 months) was less than the time remaining on Summerall’s original sentence (over 7 years).24 For these reasons,

2006See also Reyes v. State, 978 P.2d 635, 639 (Alaska App.1999) (the upward modification of a defendant's sentence when the defendant's probation is revoked does not violate the double jeopardy clause). 6 .

2008March v. State, 859 P.2d 714, 717 (Alaska App.1993). 2 .

2007Koehler v. State, 519 P.2d 442, 448 (Alaska 1974); Nelson v. State, 874 P.2d 298, 308 (Alaska App.1994); March v. State, 859 P.2d 714, 717 (Alaska App.1993); Staael v. State, 697 P.2d 1050, 1053 (Alaska App.19835). 2 .

1975V provides in part: [N]or shall any person be subject for the the same offense to be twice put in jeopardy of life or limb. [3] Koehler v. State, 519 P.2d 442 , 445 n. 3 (Alaska 1974); citing Muller v. State, 478 P.2d 822 (Alaska 1971), as dispositive of the question whether a petition for review of an order denying a double jeopardy claim should be granted. [4] See note 2, supra. [5] Koehler v. State, 519 P.2d 442, 448 (Alaska 1974); Selman v. State, 406 P.2d 181, 186 (Alaska 1965). [6] 22 U.S. (9 Wheat.) 579 , 6 L.Ed. 165 (1824). [7] Lewis v. State, 452 P.2d 892, 895 (Alaska 1969). [8] Mulle

1975V provides in part: [N]or shall any person be subject for the the same offense to be twice put in jeopardy of life or limb. [3] Koehler v. State, 519 P.2d 442 , 445 n. 3 (Alaska 1974); citing Muller v. State, 478 P.2d 822 (Alaska 1971), as dispositive of the question whether a petition for review of an order denying a double jeopardy claim should be granted. [4] See note 2, supra. [5] Koehler v. State, 519 P.2d 442, 448 (Alaska 1974); Selman v. State, 406 P.2d 181, 186 (Alaska 1965). [6] 22 U.S. (9 Wheat.) 579 , 6 L.Ed. 165 (1824). [7] Lewis v. State, 452 P.2d 892, 895 (Alaska 1969). [8] Mulle

2021See Benton v. Maryland, 395 U.S. 784 (1969). 4 See North Carolina v. Pearce, 395 U.S. 711, 717 (1969); Todd v. State, 917 P.2d 674, 677, 681 (Alaska 1996). 5 AMC 08 .10.050(B).

2010Todd, 917 P.2d at 681-83 .

1980See Whitton v. State, 479 P.2d 302, 308 (Alaska 1970), in which we quoted with approval the teaching of North Carolina v. Pearce, 395 U.S. 711 , 89 S.Ct. 2072 , 23 L.Ed.2d 656 (1969), that the double jeopardy clause protects against multiple punishment for the same offense. 6 .

1980See Whitton v. State, 479 P.2d 302, 308 (Alaska 1970), in which we quoted with approval the teaching of North Carolina v. Pearce, 395 U.S. 711 , 89 S.Ct. 2072 , 23 L.Ed.2d 656 (1969), that the double jeopardy clause protects against multiple punishment for the same offense. 6 .

2019We discussed this point of law more explicitly in Staael v. State , 697 P.2d 1050 (Alaska App. 1985) : Brown [ v. Ohio ] and the line of cases it relies upon ... reach a result which in Alaska is required by statute.

2007Koehler v. State, 519 P.2d 442, 448 (Alaska 1974); Nelson v. State, 874 P.2d 298, 308 (Alaska App.1994); March v. State, 859 P.2d 714, 717 (Alaska App.1993); Staael v. State, 697 P.2d 1050, 1053 (Alaska App.19835). 2 .

2011Simmons, 899 P.2d at 936 , quoting Brown v. Ohio, 432 U.S. 161, 169 , 97 S.Ct. 2221, 2227 , 53 L.Ed.2d 187 (1977).

1995See United States v. Halper, 490 U.S. 435, 450 , 109 S.Ct. 1892, 1903 , 104 L.Ed.2d 487 (1989) (The double jeopardy clause only “ensur[es] that the [defendant’s] total punishment did not exceed that authorized by the legislature”.); Brown v. Ohio, 432 U.S. at 165 , 97 S.Ct. at 2225 (“[T]he role of the constitutional guarantee is limited to assuring that the [sentencing] court does not exceed its legislative authorization.”). .

2021In any event, as the State points out, the appellate courts have previously upheld operating convictions based on similar facts and Simpson fails to meaningfully distinguish his case from those prior cases.14 Merger of the weapons misconduct convictions Whether guilty verdicts merge into a single conviction is a mixed question of fact and law — the facts underlying the offenses are reviewed for clear error but “[t]he ultimate legal question of merger under the double-jeopardy clause is reviewed de novo.”15 Multiple convictions arising from the same course of conduct do not violate double jeopa

1993This is essentially the same argument that the Alaska Supreme Court rejected in Mead v. State, 489 P.2d 738, 740-43 (Alaska 1971).

2017At that time, the court must merge one or more of the verdicts so that the defendant receives only the number of convictions and sentences allowed by the double jeopardy clause.2 1 See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court to independently assess any concession of error by the State in a criminal case); see also Allain v. State, 810 P.2d 1019, 1021 (Alaska App. 1991) (finding State’s concession that merger of two counts should result in a single conviction to be well-taken). 2 Garhart v. State, 147 P.3d 746, 753-54 (Alaska App. 2006) (citing Gilbert v.

2017At that time, the court must merge one or more of the verdicts so that the defendant receives only the number of convictions and sentences allowed by the double jeopardy clause.2 1 See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court to independently assess any concession of error by the State in a criminal case); see also Allain v. State, 810 P.2d 1019, 1021 (Alaska App. 1991) (finding State’s concession that merger of two counts should result in a single conviction to be well-taken). 2 Garhart v. State, 147 P.3d 746, 753-54 (Alaska App. 2006) (citing Gilbert v.

2017At that time, the court must merge one or more of the verdicts so that the defendant receives only the number of convictions and sentences allowed by the double jeopardy clause.2 1 See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court to independently assess any concession of error by the State in a criminal case); see also Allain v. State, 810 P.2d 1019, 1021 (Alaska App. 1991) (finding State’s concession that merger of two counts should result in a single conviction to be well-taken). 2 Garhart v. State, 147 P.3d 746, 753-54 (Alaska App. 2006) (citing Gilbert v.

2017At that time, the court must merge one or more of the verdicts so that the defendant receives only the number of convictions and sentences allowed by the double jeopardy clause.2 1 See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court to independently assess any concession of error by the State in a criminal case); see also Allain v. State, 810 P.2d 1019, 1021 (Alaska App. 1991) (finding State’s concession that merger of two counts should result in a single conviction to be well-taken). 2 Garhart v. State, 147 P.3d 746, 753-54 (Alaska App. 2006) (citing Gilbert v.

2017At that time, the court must merge one or more of the verdicts so that the defendant receives only the number of convictions and sentences allowed by the double jeopardy clause.2 1 See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court to independently assess any concession of error by the State in a criminal case); see also Allain v. State, 810 P.2d 1019, 1021 (Alaska App. 1991) (finding State’s concession that merger of two counts should result in a single conviction to be well-taken). 2 Garhart v. State, 147 P.3d 746, 753-54 (Alaska App. 2006) (citing Gilbert v.

2017At that time, the court must merge one or more of the verdicts so that the defendant receives only the number of convictions and sentences allowed by the double jeopardy clause.2 1 See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court to independently assess any concession of error by the State in a criminal case); see also Allain v. State, 810 P.2d 1019, 1021 (Alaska App. 1991) (finding State’s concession that merger of two counts should result in a single conviction to be well-taken). 2 Garhart v. State, 147 P.3d 746, 753-54 (Alaska App. 2006) (citing Gilbert v.

2007Koehler v. State, 519 P.2d 442, 448 (Alaska 1974); Nelson v. State, 874 P.2d 298, 308 (Alaska App.1994); March v. State, 859 P.2d 714, 717 (Alaska App.1993); Staael v. State, 697 P.2d 1050, 1053 (Alaska App.19835). 2 .

1997Nelson v. State, 874 P.2d 298, 308 (Alaska App.1994); March v. State, 859 P.2d 714, 717 (Alaska App.1993).

1995Compare Waller v. Florida, 397 U.S. 387 , 90 S.Ct. 1184 , 25 L.Ed.2d 435 (1970), holding that municipalities are not separate sovereigns for double jeopardy purposes because their power to prosecute criminal offenses “springs from the same organic law” as the state’s power; therefore, the double jeopardy clause is violated when a defendant is successively prosecuted first by a municipality and then by the state.

1995Compare Waller v. Florida, 397 U.S. 387 , 90 S.Ct. 1184 , 25 L.Ed.2d 435 (1970), holding that municipalities are not separate sovereigns for double jeopardy purposes because their power to prosecute criminal offenses “springs from the same organic law” as the state’s power; therefore, the double jeopardy clause is violated when a defendant is successively prosecuted first by a municipality and then by the state.

1990Article 1, section 9 of the Alaska Constitution provides, in relevant part, that “[n]o person shall be put in jeopardy twice for the same offense.” It is well settled that this provision prohibits the court from increasing a sentence once it has been meaningfully imposed; this prohibition operates to assure that criminal defendants are not subjected “to the anxiety and insecurity against which the constitutional prohibition of double jeopardy stands as a safeguard.” Shagloak v. State, 582 P.2d 1034, 1037 (Alaska 1978).

1990“A sentence is meaningfully imposed when it is legally imposed and not subject to change under [Alaska’s] criminal rules.” Shagloak, 582 P.2d at 1037 (footnotes omitted).

2019For this reason, this Court held that the double jeopardy clause prevented the State from retrying Whiteaker on any charge except criminally negligent homicide - the least serious *219 charge on which the jury might potentially have been deadlocked. 41 As the United States Supreme Court explained in Green v. United States , 355 U.S. 184 , 190-91, 78 S.Ct. 221 , 225, 2 L.Ed.2d 199 (1957), there are actually two constitutional theories that potentially support this result.

2019For this reason, this Court held that the double jeopardy clause prevented the State from retrying Whiteaker on any charge except criminally negligent homicide - the least serious *219 charge on which the jury might potentially have been deadlocked. 41 As the United States Supreme Court explained in Green v. United States , 355 U.S. 184 , 190-91, 78 S.Ct. 221 , 225, 2 L.Ed.2d 199 (1957), there are actually two constitutional theories that potentially support this result.

1995The Alaska Supreme Court’s Decision in Tuckfield As discussed above, Todd relies on the Alaska Supreme Court’s decision in Tuck-field for the proposition that the double jeopardy clause is invariably violated when a defendant is “convict[ed] of both an offense and a lesser included offense, unless the convictions arise from separate conduct.” Tuck- *681 field, 621 P.2d at 1352 .

1983MULTIPLE PUNISHMENT DOUBLE JEOPARDY Hughes argues that the trial judge erred in allowing him to be convicted of both attempted armed robbery and manslaughter. [1] Hughes argues that his conviction of *844 both these offenses constitutes a violation of the double jeopardy clauses of the United States and Alaska Constitutions. [2] Hughes argues that in his case attempted armed robbery was a lesser-included offense of manslaughter and that convicting him of both offenses violated the double jeopardy rule of Tuckfield v. State, 621 P.2d 1350 (Alaska 1981).

2022Under this statute, Halper was subject to a civil penalty of $2000 for each of the 65 fraudulent claims he submitted — a total of 64 490 U.S. 435 , 109 S.Ct. 1892 , 104 L.Ed.2d 487 (1989). 65 Halper, 490 U.S. at 437 , 109 S.Ct. at 1895–96. – 81 – 2734 $130,000, even though Medicare had lost only a few hundred dollars when it paid Halper’s fraudulent claims. 66 The trial court ruled that a civil penalty of this magnitude was, in effect, a criminal punishment — and that the double jeopardy clause of the Fifth Amendment protected Halper from receiving a second punishment for his crime. 67 And the

2022Under this statute, Halper was subject to a civil penalty of $2000 for each of the 65 fraudulent claims he submitted — a total of 64 490 U.S. 435 , 109 S.Ct. 1892 , 104 L.Ed.2d 487 (1989). 65 Halper, 490 U.S. at 437 , 109 S.Ct. at 1895–96. – 81 – 2734 $130,000, even though Medicare had lost only a few hundred dollars when it paid Halper’s fraudulent claims. 66 The trial court ruled that a civil penalty of this magnitude was, in effect, a criminal punishment — and that the double jeopardy clause of the Fifth Amendment protected Halper from receiving a second punishment for his crime. 67 And the

1995Federal Double Jeopardy Law The double jeopardy clause of the Fifth Amendment, made applicable to the states by the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784 , 89 S.Ct. 2056 , 23 L.Ed.2d 707 (1969), prohibits a government from twice putting a defendant in jeopardy for the “same offense”.

1995Federal Double Jeopardy Law The double jeopardy clause of the Fifth Amendment, made applicable to the states by the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784 , 89 S.Ct. 2056 , 23 L.Ed.2d 707 (1969), prohibits a government from twice putting a defendant in jeopardy for the “same offense”.

2024It is established law that courts may modify probation or impose suspended time in a manner that is detrimental to the defendant without violating the double jeopardy clause as long as the defendant’s sentence is not increased.23 Unlike in Dodge, where the court’s action increased the original sentence from 1 year to 1 year and 90 days, in Summerall’s case, 22 Id. 23 See Reyes v. State, 978 P.2d 635, 639-40 (Alaska App. 1999). –9– 2788 the total jail time imposed (up to 2 years and 8 months) was less than the time remaining on Summerall’s original sentence (over 7 years).24 For these reasons,

2002Dodge v. Anchorage, 877 P.2d 270, 272 (Alaska App.1994) (citing Lock v. State, 609 P.2d 539 (Alaska App.1980)); cf. Hester v. State, 777 P.2d 217, 219 (Alaska App.1989) (addition of thirty-day inpatient treatment requirement not designated in the judgment violated the double jeopardy clause because the defendant was subjected to restraints equivalent to custody). .

2018Any ambiguity must be resolved in favor of the accused."). 18 See Marks v. State , 496 P.2d 66 , 67-68 (Alaska 1972) (requiring an appellate court to independently evaluate any concession of error by the State in a criminal case). 19 Nicklie v. State , 402 P.3d 424 , 425-26 (Alaska App. 2017). 20 See id. at 426 . 21 See AS 12.55.155(f) (requiring defendants to prove mitigating factors by clear and convincing evidence).

2017At that time, the court must merge one or more of the verdicts so that the defendant receives only the number of convictions and sentences allowed by the double jeopardy clause.2 1 See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court to independently assess any concession of error by the State in a criminal case); see also Allain v. State, 810 P.2d 1019, 1021 (Alaska App. 1991) (finding State’s concession that merger of two counts should result in a single conviction to be well-taken). 2 Garhart v. State, 147 P.3d 746, 753-54 (Alaska App. 2006) (citing Gilbert v.

2017At that time, the court must merge one or more of the verdicts so that the defendant receives only the number of convictions and sentences allowed by the double jeopardy clause.2 1 See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court to independently assess any concession of error by the State in a criminal case); see also Allain v. State, 810 P.2d 1019, 1021 (Alaska App. 1991) (finding State’s concession that merger of two counts should result in a single conviction to be well-taken). 2 Garhart v. State, 147 P.3d 746, 753-54 (Alaska App. 2006) (citing Gilbert v.

2008In Allain, 810 P.2d at 1021-22 , this Court examined this issue at some length and ultimately concluded that the double jeopardy clause allows a sentencing court to alter the defendant's sentences on the remaining counts, so long as the defendant's new sentences do not exceed the composite term that the defendant originally received.

2009I reach this conclusion as a matter of statutory interpretation and substantive criminal law, rather than under a double jeopardy analysis. . 459 U.S. 359, 365-66 , 103 S.Ct. 673, 678 , 74 L.Ed.2d 535 (1983).

2009I reach this conclusion as a matter of statutory interpretation and substantive criminal law, rather than under a double jeopardy analysis. . 459 U.S. 359, 365-66 , 103 S.Ct. 673, 678 , 74 L.Ed.2d 535 (1983).

2007The Second Circuit rejected this argument, concluding that a criminal defendant was barred from employing the double jeopardy clause as a "sword": [T]he Supreme Court has made clear that a criminal defendant is not "entitled to use the Double Jeopardy Clause as a sword." Ohio v. Johnson, 467 U.S. 493, 502 , 104 S.Ct. 2536, 2542 , 81 L.Ed.2d 425 (1984); see also Jeffers v. United States, 432 U.S. 137, 152-54 , 97 S.Ct. 2207, 2217-18 , 53 L.Ed.2d 168 (1977).

2007The Second Circuit rejected this argument, concluding that a criminal defendant was barred from employing the double jeopardy clause as a "sword": [T]he Supreme Court has made clear that a criminal defendant is not "entitled to use the Double Jeopardy Clause as a sword." Ohio v. Johnson, 467 U.S. 493, 502 , 104 S.Ct. 2536, 2542 , 81 L.Ed.2d 425 (1984); see also Jeffers v. United States, 432 U.S. 137, 152-54 , 97 S.Ct. 2207, 2217-18 , 53 L.Ed.2d 168 (1977).

1996Breed v. Jones, 421 U.S. 519, 531 , 95 S.Ct. 1779, 1786-87 , 44 L.Ed.2d 346 (1975).

1996Breed v. Jones, 421 U.S. 519, 531 , 95 S.Ct. 1779, 1786-87 , 44 L.Ed.2d 346 (1975).

1990See Sonnier v. State, 483 P.2d 1003, 1005 (Alaska 1971) (“once a sentence has been meaningfully imposed, it may not, at a later time, be increased”). 1 The requirement that Hester serve an additional two years of probation is VACATED and the case is REMANDED for resentencing consistent with this opinion. .

1990The double jeopardy clause of the Alaska Constitution prevents an increase in any sentence that has been “meaningfully imposed.” See Alaska Constitution, article I, § 9; Sonnier v. State, 483 P.2d 1003 (Alaska 1971).