double jeopardy clause in Utah

2001Retrial was proper on this ground alone, regardless of the prose-cutorial misconduct, and neither the State nor defendant should be denied the right to a fair, error-free determination; " 'the double jeopardy clause may not deny either side that right.'" Lopes, 1999 UT 24 at ¶ 21 , 993 P.2d 854 (quoting State v. Lamorie, 610 P.2d 342, 347 (Utah 1980)). ' 146 We note that defendant would have us completely ignore the fact that his convie- . tion was reversed as a direct result of his appellate challenges.

1999See State v. Lamorie, 610 P.2d 342, 347 (Utah 1980) ("The state and the accused share the right to a fair, error-free determination of the guilt or innocence of the accused, and the double jeopardy clause may not deny either side that right."). ¶ 22 We hold that the gang enhancement statute creates a new and separate offense and, therefore, the Code requires each element of this crime be proved beyond a reasonable doubt.

1989As to his double jeopardy argument, we recently held in State v. Holland, 777 P.2d 1019, 1023 (Utah 1989), that for the reasons there stated, section 76-5-202(l)(h) does not violate the double jeopardy clause of the federal constitution.

1989As to his double jeopardy argument, we recently held in State v. Holland, 777 P.2d 1019, 1023 (Utah 1989), that for the reasons there stated, section 76-5-202(1)(h) does not violate the double jeopardy clause of the federal constitution.

2014See State v. Harris, 2004 UT 103 , ¶ 24 n. 6, 104 P.3d 1250 (stating that Utah Code section 76-1-403 codifies a double jeopardy standard similar to that of the Utah Constitution); State v. Franklin, 735 P.2d 34, 37 (Utah 1987) ("'It is ... appropriate to view section 76-1-404 as a legislative codification of traditional double jeopardy interpretation.").

2014See State v. Harris, 2004 UT 103 , ¶ 24 n. 6, 104 P.3d 1250 (stating that Utah Code section 76-1-403 codifies a double jeopardy standard similar to that of the Utah Constitution); State v. Franklin, 735 P.2d 34, 37 (Utah 1987) ("'It is ... appropriate to view section 76-1-404 as a legislative codification of traditional double jeopardy interpretation.").

2016And ―[b]ecause the elements of [the defendant‘s] separate prosecutions differ[ed], and either offense could have been established without establishing the other,‖ the court held that ―the double jeopardy doctrine [did] not apply.‖ Id. ¶136 The double jeopardy premise of the Lee-Finlayson test cannot stand in light of the above.

2016And ―[b]ecause the elements of [the defendant‘s] separate prosecutions differ[ed], and either offense could have been established without establishing the other,‖ the court held that ―the double jeopardy doctrine [did] not apply.‖ Id. ¶136 The double jeopardy premise of the Lee-Finlayson test cannot stand in light of the above.

2026Id. at 698 . ¶30 Second, State v. Ambrose, 598 P.2d 354 (Utah 1979), overruled on other grounds by Harris, 2004 UT 103, ¶ 20 .

2014Id. ¶ 12 While the trial judge must ultimately bear the burden of making the determination that none of the alternatives are reasonable, “the prosecutor must shoulder the burden of justifying the mistrial if he is to avoid the double jeopardy bar.” Am-brose, 598 P.2d at 359 (internal quotation marks omitted).

2020See, e.g., Arizona v. Washington, 434 U.S. 497, 505, 509 (1978) (holding that district courts “may discharge a genuinely deadlocked jury and require the defendant to submit to a second trial” because no verdict has been reached, and “[u]nlike the situation in which the trial has ended in an acquittal or conviction, retrial is not automatically barred when a criminal proceeding is terminated without finally resolving the merits of the charges against the accused”); State v. Trafny, 799 P.2d 704, 709 (Utah 1990) (holding that the double jeopardy clause protects only defendants who are subject to

1979And in Arizona v. Washington, 434 U.S. 497, 505 , 98 S.Ct. 824, 830 , 54 L.Ed.2d 717 (1978), the court stated: ... in view of the importance of the right [of the accused to have his trial concluded by a particular tribunal], and the fact that it is frustrated by any mistrial, the prosecutor must shoulder the burden of justifying the mistrial if he is to avoid the double jeopardy bar.

2010However, we no longer view Mendoza as controlling authority in light of its reliance on the double jeopardy analysis contained in United States v. Halper, 490 U.S. 435 , 109 S.Ct. 1892 , 104 L.Ed.2d 487 (1989), which was substantially overruled by Hudson.

2010However, we no longer view Mendoza as controlling authority in light of its reliance on the double jeopardy analysis contained in United States v. Halper, 490 U.S. 435 , 109 S.Ct. 1892 , 104 L.Ed.2d 487 (1989), which was substantially overruled by Hudson.

2002See State v. Smith, 812 P.2d 470 , 478 n. 3 (Utah Ct.App.1991). [5] Under our present law, the double jeopardy clause "protects against successive prosecutions for the same offense after acquittal." Monge v. California, 524 U.S. 721, 727-28 , 118 S.Ct. 2246 , 141 L.Ed.2d 615 (1998); see also Green v. United States, 355 U.S. 184, 193-94 , 78 S.Ct. 221 , 2 L.Ed.2d 199 (1957).

2002See State v. Smith, 812 P.2d 470 , 478 n. 3 (Utah Ct.App.1991). [5] Under our present law, the double jeopardy clause "protects against successive prosecutions for the same offense after acquittal." Monge v. California, 524 U.S. 721, 727-28 , 118 S.Ct. 2246 , 141 L.Ed.2d 615 (1998); see also Green v. United States, 355 U.S. 184, 193-94 , 78 S.Ct. 221 , 2 L.Ed.2d 199 (1957).

1999Thus, for Maguire to be precluded from being resentenced at a second trial, he must have had a legitimate expectation of finality in the original proceedings. ¶ 9 Although Maguire had completed his original sentence for the aggravated assault conviction, when he was granted leave to withdraw his plea and elected to do so he, in effect, voluntarily initiated a second trial on the same charges stemming from the assault upon his grandmother. [2] "The double jeopardy clause stands as a major qualification of the power to grant a new trial in a criminal case (except, of course, where the motion is

1999Thus, for Maguire to be precluded from being resen-tenced at a second trial, he must have had a legitimate expectation of finality in the original proceedings. ¶ 9 Although Maguire had completed his original sentence for the aggravated assault conviction, when he was granted leave to withdraw his plea and elected to do so he, in effect, voluntarily initiated a second trial on the same charges stemming from the assault upon his grandmother. 2 “The double jeopardy clause stands as a major qualification of the power to grant a new trial in a criminal case (except, of course, where the motion is m

2001However, as he states in his brief, "Defendant, after denial of the automatic appeal by the Utah Supreme Court, filed a writ of habeas corpus in the federal system, resulting in a finding that the trial judge had committed error failing to apply the correct standard of competency at the competency hearings." " 'Where the defendant has complained of errors that vitiate the prior proceedings and judgment and they are nullified at his request, he cannot then take the inconsistent position that there was a valid proceeding and judgment against him which constitute a former jeopardy.!" McNair, 666

2001However, as he states in his brief, "Defendant, after denial of the automatic appeal by the Utah Supreme Court, filed a writ of habeas corpus in the federal system, resulting in a finding that the trial judge had committed error failing to apply the correct standard of competency at the competency hearings." " 'Where the defendant has complained of errors that vitiate the prior proceedings and judgment and they are nullified at his request, he cannot then take the inconsistent position that there was a valid proceeding and judgment against him which constitute a former jeopardy.!" McNair, 666

1983See United States v. Scott, supra. *1066 Defendant relies on United States v. Jenkins, 420 U.S. 358 , 95 S.Ct. 1006 , 43 L.Ed.2d 250 (1975), for the proposition that he may not be retried on the forgery charge. 4 Jenkins held that where it is not clear whether the trial court’s ruling dismissing an indictment was based on a factual determination of guilt or innocence, or on a ruling as to a controlling question of law, a retrial was barred by the double jeopardy clause if a reversal and remand would require further proceedings to adjudicate the factual elements of the offense charged. 5 That r

1983See United States v. Scott, supra. *1066 Defendant relies on United States v. Jenkins, 420 U.S. 358 , 95 S.Ct. 1006 , 43 L.Ed.2d 250 (1975), for the proposition that he may not be retried on the forgery charge. 4 Jenkins held that where it is not clear whether the trial court’s ruling dismissing an indictment was based on a factual determination of guilt or innocence, or on a ruling as to a controlling question of law, a retrial was barred by the double jeopardy clause if a reversal and remand would require further proceedings to adjudicate the factual elements of the offense charged. 5 That r

2026State v. Germonto, 868 P.2d 50, 58 (Utah 1993) (quotation simplified).

2022See State v. Sanchez, 2020 UT App 158, ¶ 14 , 477 P.3d 501 . 20200230-CA 5 2022 UT App 136 State v. Hebeishy & Sadler ¶13 Second, Hebeishy separately contends that the district court erred in denying his motion to dismiss two of the predicate offenses on which the pattern of unlawful activity charge was based, asserting that the State cannot rely on the offenses because they are barred by the applicable statute of limitations, the double jeopardy clause, and Utah’s single criminal episode statute.

2022See State v. Sanchez, 2020 UT App 158, ¶ 14 , 477 P.3d 501 . 20200230-CA 5 2022 UT App 136 State v. Hebeishy & Sadler ¶13 Second, Hebeishy separately contends that the district court erred in denying his motion to dismiss two of the predicate offenses on which the pattern of unlawful activity charge was based, asserting that the State cannot rely on the offenses because they are barred by the applicable statute of limitations, the double jeopardy clause, and Utah’s single criminal episode statute.

2022See State v. Sanchez, 2020 UT App 158, ¶ 14 , 477 P.3d 501 . 20200230-CA 5 2022 UT App 136 State v. Hebeishy & Sadler ¶13 Second, Hebeishy separately contends that the district court erred in denying his motion to dismiss two of the predicate offenses on which the pattern of unlawful activity charge was based, asserting that the State cannot rely on the offenses because they are barred by the applicable statute of limitations, the double jeopardy clause, and Utah’s single criminal episode statute.

2022The court denied Hebeishy’s motion to dismiss in its entirety but did not separately address Hebeishy’s argument based on the single criminal episode statute—an argument that was intertwined with the double jeopardy argument. 20200230-CA 18 2022 UT App 136 State v. Hebeishy & Sadler court observed that because there is an additional element in the pattern of unlawful activity charge, “the double jeopardy doctrine does not apply.” But in challenging the district court’s ruling, Hebeishy does not address the basis for the court’s decision or identify any specific flaw in its reasoning.

2020See, e.g., Arizona v. Washington, 434 U.S. 497, 505, 509 (1978) (holding that district courts “may discharge a genuinely deadlocked jury and require the defendant to submit to a second trial” because no verdict has been reached, and “[u]nlike the situation in which the trial has ended in an acquittal or conviction, retrial is not automatically barred when a criminal proceeding is terminated without finally resolving the merits of the charges against the accused”); State v. Trafny, 799 P.2d 704, 709 (Utah 1990) (holding that the double jeopardy clause protects only defendants who are subject to

2020See, e.g., Arizona v. Washington, 434 U.S. 497, 505, 509 (1978) (holding that district courts “may discharge a genuinely deadlocked jury and require the defendant to submit to a second trial” because no verdict has been reached, and “[u]nlike the situation in which the trial has ended in an acquittal or conviction, retrial is not automatically barred when a criminal proceeding is terminated without finally resolving the merits of the charges against the accused”); State v. Trafny, 799 P.2d 704, 709 (Utah 1990) (holding that the double jeopardy clause protects only defendants who are subject to

2019See United States v. Pierce , 60 F.3d 886 , 890 (1st Cir. 1995). ¶14 The Second Circuit Court of Appeals has addressed and rejected a similar argument.

2019Court v. Lydon , 466 U.S. 294 , 307, 104 S.Ct. 1805 , 80 L.Ed.2d 311 (1984) ("The primary purpose of foreclosing a second prosecution after conviction ... is to prevent a defendant from being subjected to multiple punishments for the same offense."); People v. McCutcheon , 68 Ill.2d 101 , 11 Ill.Dec. 278 , 368 N.E.2d 886 , 888 (1977) ("One of the purposes of the protection against double jeopardy is to protect an 'accused from the unfair harassment of successive trials.' " (quoting United States v. Goldman , 352 F.2d 263 , 266 (3d Cir. 1965) ).) ¶12 Gardner concedes that, for purposes of the d

2019Court v. Lydon , 466 U.S. 294 , 307, 104 S.Ct. 1805 , 80 L.Ed.2d 311 (1984) ("The primary purpose of foreclosing a second prosecution after conviction ... is to prevent a defendant from being subjected to multiple punishments for the same offense."); People v. McCutcheon , 68 Ill.2d 101 , 11 Ill.Dec. 278 , 368 N.E.2d 886 , 888 (1977) ("One of the purposes of the protection against double jeopardy is to protect an 'accused from the unfair harassment of successive trials.' " (quoting United States v. Goldman , 352 F.2d 263 , 266 (3d Cir. 1965) ).) ¶12 Gardner concedes that, for purposes of the d

2018See Bank of Am. v. Adamson , 2017 UT 2 , ¶ 11, 391 P.3d 196 (An issue is inadequately briefed if the argument "merely contains bald citations to authority [without] development of that authority...." (alteration in original) (citation omitted) ).

2018See Bank of Am. v. Adamson , 2017 UT 2 , ¶ 11, 391 P.3d 196 (An issue is inadequately briefed if the argument "merely contains bald citations to authority [without] development of that authority...." (alteration in original) (citation omitted) ).