double jeopardy clause in Nebraska

1995As we noted in State v. Palmer, 224 Neb. 282 , 399 N.W.2d 706 (1986): “[T]he U.S. Supreme Court [has] held that an appellate finding of insufficient evidence to convict is tantamount to an acquittal and, therefore, that the double jeopardy clause precludes a second trial once the reviewing court has found the evidence legally insufficient.” Id. at 295-96 , 399 N.W.2d at 718 (citing Burks v. United States, 437 U.S. 1 , 98 S. Ct. 2141 , 57 L.

1995As we noted in State v. Palmer, 224 Neb. 282 , 399 N.W.2d 706 (1986): “[T]he U.S. Supreme Court [has] held that an appellate finding of insufficient evidence to convict is tantamount to an acquittal and, therefore, that the double jeopardy clause precludes a second trial once the reviewing court has found the evidence legally insufficient.” Id. at 295-96 , 399 N.W.2d at 718 (citing Burks v. United States, 437 U.S. 1 , 98 S. Ct. 2141 , 57 L.

1995Ed. 2d 548 (1990), in which the Court added a second step to the double jeopardy analysis and held that even if the Blockburger test was satisfied, the Double Jeopardy Clause would still bar a subsequent prosecution “if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” In 1993, the U.S. Supreme Court overruled Grady and returned to the Blockburger test in U.S. v. Dixon, _ U.S. _, 113 S. Ct. 2849 , 125 L.

1995Ed. 2d 548 (1990), in which the Court added a second step to the double jeopardy analysis and held that even if the Blockburger test was satisfied, the Double Jeopardy Clause would still bar a subsequent prosecution “if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” In 1993, the U.S. Supreme Court overruled Grady and returned to the Blockburger test in U.S. v. Dixon, _ U.S. _, 113 S. Ct. 2849 , 125 L.

1995As we noted in State v. Palmer, 224 Neb. 282 , 399 N.W.2d 706 (1986): “[T]he U.S. Supreme Court [has] held that an appellate finding of insufficient evidence to convict is tantamount to an acquittal and, therefore, that the double jeopardy clause precludes a second trial once the reviewing court has found the evidence legally insufficient.” Id. at 295-96 , 399 N.W.2d at 718 (citing Burks v. United States, 437 U.S. 1 , 98 S. Ct. 2141 , 57 L.

1995As we noted in State v. Palmer, 224 Neb. 282 , 399 N.W.2d 706 (1986): “[T]he U.S. Supreme Court [has] held that an appellate finding of insufficient evidence to convict is tantamount to an acquittal and, therefore, that the double jeopardy clause precludes a second trial once the reviewing court has found the evidence legally insufficient.” Id. at 295-96 , 399 N.W.2d at 718 (citing Burks v. United States, 437 U.S. 1 , 98 S. Ct. 2141 , 57 L.

2009Grizzle points out that this court found a double jeopardy violation in State v. Dragoo, 17 Neb.App. 267 , 758 N.W.2d 60 (2008), affirmed 277 Neb. 858 , 765 N.W.2d 666 (2009) — which conclusion was subsequently affirmed by the Nebraska Supreme Court — even though prosecution of the two offenses "occurred in the same proceeding." Brief for appellant at 13 (emphasis omitted).

2009Grizzle points out that this court found a double jeopardy violation in State v. Dragoo, 17 Neb.App. 267 , 758 N.W.2d 60 (2008), affirmed 277 Neb. 858 , 765 N.W.2d 666 (2009) — which conclusion was subsequently affirmed by the Nebraska Supreme Court — even though prosecution of the two offenses "occurred in the same proceeding." Brief for appellant at 13 (emphasis omitted).

2017XIV, § 1 (“nor shall any State deprive any person of life, liberty, or property, without due process of law”); Benton v. Maryland, 395 U.S. 784 , 89 S. Ct. 2056 , 23 L.

2017XIV, § 1 (“nor shall any State deprive any person of life, liberty, or property, without due process of law”); Benton v. Maryland, 395 U.S. 784 , 89 S. Ct. 2056 , 23 L.

1997The applicable rule for a double jeopardy analysis was discussed in State v. Stubblefield, 249 Neb. 436, 442 , 543 N.W.2d 743, 747 (1996): *671 In Blockburger v. United States, 284 U.S. 299 , 52 S. Ct. 180 , 76 L.

1997The applicable rule for a double jeopardy analysis was discussed in State v. Stubblefield, 249 Neb. 436, 442 , 543 N.W.2d 743, 747 (1996): *671 In Blockburger v. United States, 284 U.S. 299 , 52 S. Ct. 180 , 76 L.

2008We applied the analysis of multiple punishments under the Double Jeopardy Clause as set out in United States v. Ward, 448 U.S. 242 , 100 S. Ct. 2636 , 65 L.

2008We applied the analysis of multiple punishments under the Double Jeopardy Clause as set out in United States v. Ward, 448 U.S. 242 , 100 S. Ct. 2636 , 65 L.

1998Dandridge’s current counsel points out that 2 years prior to the commencement of the criminal prosecution of Dandridge, we decided in State v. One 1987 Toyota Pickup, 233 Neb. 670 , 447 N.W.2d 243 (1989), that the statutory forfeiture scheme embodied in § 28-431 was criminal in character and, thus, triggered double jeopardy protections.

1998Dandridge’s current counsel points out that 2 years prior to the commencement of the criminal prosecution of Dandridge, we decided in State v. One 1987 Toyota Pickup, 233 Neb. 670 , 447 N.W.2d 243 (1989), that the statutory forfeiture scheme embodied in § 28-431 was criminal in character and, thus, triggered double jeopardy protections.

1991In a footnote, the Court suggests this conclusion by stating the obvious corollary: “Similarly, if in the course of securing a conviction for one offense the State necessarily has proved the conduct comprising all of the elements of another offense not yet prosecuted (a ‘component offense’), the Double Jeopardy Clause would bar subsequent prosecution of the component offense.” (Emphasis supplied.) 110 S.Ct. at 2093 n.11.

1991In a *252 footnote, the Court suggests this conclusion by stating the obvious corollary: "Similarly, if in the course of securing a conviction for one offense the State necessarily has proved the conduct comprising all of the elements of another offense not yet prosecuted (a `component offense'), the Double Jeopardy Clause would bar subsequent prosecution of the component offense." (Emphasis supplied.) 110 S.Ct. at 2093 n. 11.

2023BERSHON Cite as 313 Neb. 153 We note, however, that even after the State’s evidence was presented, Bershon did not raise the double jeopardy argu- ments in the district court.

2023LEWIS Cite as 313 Neb. 879 Supreme Court in Blockburger. 8 One of the State’s arguments on appeal is that instead of Blockburger, the district court should have applied the double jeopardy framework from the U.S. Supreme Court case of Diaz v. United States. 9 To con- sider these arguments, we summarize pertinent holdings from both cases. (a) Blockburger In Blockburger, the Court held that “where the same act or transaction constitutes a violation of two distinct statu- tory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provi- sion r

2023LEWIS Cite as 313 Neb. 879 Supreme Court in Blockburger. 8 One of the State’s arguments on appeal is that instead of Blockburger, the district court should have applied the double jeopardy framework from the U.S. Supreme Court case of Diaz v. United States. 9 To con- sider these arguments, we summarize pertinent holdings from both cases. (a) Blockburger In Blockburger, the Court held that “where the same act or transaction constitutes a violation of two distinct statu- tory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provi- sion r

2023DOLINAR Cite as 315 Neb. 257 order on the grounds that § 28-431 is civil for purposes of a double jeopardy analysis.

2023DOLINAR Cite as 315 Neb. 257 brought § 28-431 in line with other civil in rem proceedings. 36 The Legislature thereby manifested its intent that proceedings under § 28-431 shall no longer be considered criminal for pur- poses of a double jeopardy analysis. [15] Looking to the factors set forth by the U.S. Supreme Court, we find no constitutional reason to negate this manifest intent.

2023Although the parties devote much of their appellate brief- ing to whether, under the Blockburger test, the crime of DUI/ serious bodily injury is a lesser-included offense of motor vehicle homicide/DUI, we do not find it necessary to address that question. 15 Instead, on the circumstances of this case, we agree the double jeopardy framework from Diaz governs our analysis. 12 See, e.g., Garrett v. United States, 471 U.S. 773, 778 , 105 S. Ct. 2407 , 85 L.

2023Although the parties devote much of their appellate brief- ing to whether, under the Blockburger test, the crime of DUI/ serious bodily injury is a lesser-included offense of motor vehicle homicide/DUI, we do not find it necessary to address that question. 15 Instead, on the circumstances of this case, we agree the double jeopardy framework from Diaz governs our analysis. 12 See, e.g., Garrett v. United States, 471 U.S. 773, 778 , 105 S. Ct. 2407 , 85 L.

2023Ed. 2d 764 (1985) (plurality disregards Blockburger in successive prosecution case and holds “[w]here the same conduct violates two statutory provisions, the first step in the double jeopardy analysis is to determine whether the legislature—in this case Congress—intended that each violation be a separate offense”); Albernaz v. United States, 450 U.S. 333 , 101 S. Ct. 1137 , 67 L.

2023Ed. 2d 764 (1985) (plurality disregards Blockburger in successive prosecution case and holds “[w]here the same conduct violates two statutory provisions, the first step in the double jeopardy analysis is to determine whether the legislature—in this case Congress—intended that each violation be a separate offense”); Albernaz v. United States, 450 U.S. 333 , 101 S. Ct. 1137 , 67 L.

2023Affirmed. 44 State v. Draper, 289 Neb. 777 , 857 N.W.2d 334 (2015).

2020Sierra also assigns that his attorney was deficient by fail- ing to (1) comply with discovery; (2) serve notice of Sierra’s alibi; (3) move for a continuance at the hearing on the motion - 257 - Nebraska Supreme Court Advance Sheets 305 Nebraska Reports STATE v. SIERRA Cite as 305 Neb. 249 in limine; (4) call Sierra’s fiance as a witness for the defense; (5) depose Sierra’s brother, mother, and fiance, as well as two potential alibi witnesses, prior to trial; (6) communicate with Sierra to prepare for trial; (7) assert a double jeopardy claim; (8) move to suppress identification evidence and e

2018State v. Combs, supra. The Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution provides, “No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb . . . .” The 5th Amendment’s - 743 - Nebraska Supreme Court A dvance Sheets 298 Nebraska R eports STATE v. BEDOLLA Cite as 298 Neb. 736 protection against double jeopardy applies to states through the 14th Amendment to the U.S. Constitution.

2018No. 91-644, 84 Stat. 1890. - 879 - Nebraska Supreme Court A dvance Sheets 299 Nebraska R eports STATE v. THALKEN Cite as 299 Neb. 857 or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.82 This revision to the Criminal Appeals Act made clear that “Congress was determined to avoid creating nonconstitutional bars to the Government’s right to appeal.”83 The evolution of the federal statute provides a cautionary tale.

2017App. P. § 2-109(D)(1)(e) (rev. 2014) (emphasis supplied). 15 State v. Williams, 278 Neb. 841, 850-51 , 774 N.W.2d 384, 392 (2009). 16 Id. at 847 , 774 N.W.2d at 390 . - 432 - Nebraska Supreme Court A dvance Sheets 297 Nebraska R eports STATE v. COMBS Cite as 297 Neb. 422 convicted, or been pardoned for the same offense.” A plea in bar may be used to raise a double jeopardy challenge to the State’s right to retry a defendant following a mistrial.17 [15-17] The Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution provides that “No person shall . . . be subject for the same offe

2016State v. Maeder, 229 Neb. 568 , 428 N.W.2d 180 (1988).

2016State v. Maeder, 229 Neb. 568 , 428 N.W.2d 180 (1988).

2016State v. Huff, 279 Neb. 68 , 776 N.W.2d 498 (2009), citing Blockburger v. United States, 284 U.S. 299 , 52 S. Ct. 180 , 76 L.

2016State v. Huff, 279 Neb. 68 , 776 N.W.2d 498 (2009), citing Blockburger v. United States, 284 U.S. 299 , 52 S. Ct. 180 , 76 L.

2015We affirm Ballew’s convictions and sentences. - 580 - Nebraska A dvance Sheets 291 Nebraska R eports STATE v. BALLEW Cite as 291 Neb. 577 II.

2015We conclude that such convictions and sentences did not violate double jeopardy and that therefore, the district court did not abuse its discretion when it rejected Ballew’s double jeopardy arguments and denied a new trial on such basis. [7,8] The Double Jeopardy Clauses of both the federal and Nebraska Constitutions protect against three distinct abuses: (1) a second prosecution for the same offense after acquittal, - 588 - Nebraska A dvance Sheets 291 Nebraska R eports STATE v. BALLEW Cite as 291 Neb. 577 (2) a second prosecution for the same offense after convic- tion, and (3) multiple puni

2014Most other state and federal courts hold that although collateral estoppel is embodied in the double jeopardy clause, it is actually a separate claim that mandates 12 State v. Young, 249 Neb. 539 , 544 N.W.2d 808 (1996). 13 Id. at 543 , 544 N.W.2d at 812 . 14 Monge v. California, 524 U.S. 721 , 118 S. Ct. 2246 , 141 L.

2014Most other state and federal courts hold that although collateral estoppel is embodied in the double jeopardy clause, it is actually a separate claim that mandates 12 State v. Young, 249 Neb. 539 , 544 N.W.2d 808 (1996). 13 Id. at 543 , 544 N.W.2d at 812 . 14 Monge v. California, 524 U.S. 721 , 118 S. Ct. 2246 , 141 L.