Many people have heard of the “Double Jeopardy” rule in criminal cases, but are unsure exactly what that means. Essentially, it is a Constitutional right not to be put on trial twice for the same crime, if acquitted the first time. The U.S. Constitution’s Fifth Amendment and Article I, Section 9 of the Florida Constitution both aim to protect individuals from having their liberty put at risk – or “jeopardy” – again for the same crime if they were already cleared of a criminal charge.

Under the Fifth Amendment, a person shall not “be subject for the same offense to be twice put in jeopardy of life or limb”. This clause was further explained by the United State Supreme Court in Blockburger v. United States, 284 U.S. 299, 304 (1932). In its decision, the Court set forth what is still known as the Blockburger test to determine if double jeopardy applies: when the “same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied… is whether each provision requires proof of a fact which the other does not.”

In other words, if a new charge includes an element of law not required under the previous charge, the double jeopardy clause does not apply. If the new charge involves the same act (or series of acts) and the elements to be proven to a jury are the same, the new case fails under the double jeopardy rule. Florida Statutes, Sec. 775.021(4)(a) codify this principle as well for Florida criminal defendants.

How to Know Whether a New Charge Violates the Double Jeopardy Clause

All felony and misdemeanor prosecutions at both the State and Federal levels are subject to double jeopardy protections. Knowing whether this may apply to your case will depend on the circumstances and the legal proceedings involved with the previous charge. First, jeopardy must “attach” in the original case. This is an important distinction from the mere act of charges being filed in the first case.

For jeopardy to “attach”, any of the following must occur:

  • In a jury trial, the jury must be empaneled and sworn in;
  • In a non-jury bench trial, the judge must hear testimony from the first witness;
  • In a plea deal, the court must accept the defendant’s plea unconditionally.

What if there is a mistrial? Generally, mistrials do not trigger the double jeopardy clause unless there was some type of prosecutorial or judicial misconduct involved. A mistrial frequently occurs due to some procedural error or hung jury issue where a re-trial is necessary.

If jeopardy did attach in the previous case (say, the defendant was acquitted after a full jury trial), the next step would be to examine whether the facts of the new charge:

  1. Arise out of the same act or transaction as the previous case;
  2. Whether the new charge requires the prosecutor to prove some different or additional element that was not required before.

This requires careful examination, preferably with the assistance of skilled criminal defense counsel. Sometimes, whether it is due to overzealous prosecution or a mere oversight, people might face new charges that violate their rights under the United States and Florida Constitutions.

The Tampa Criminal Defense Attorneys at Trombley & Hanes Understand Your Constitutional Rights in Criminal Cases

At Trombley & Hanes, we have handled a wide variety of criminal defense cases involving Florida and Federal law. We know your Constitutional rights – including your rights under the Double Jeopardy clause. If there is any kind of overlap between a new charge and a case that has already passed through the legal process, you have the right to a determination that your rights aren’t being violated. Contact our Tampa criminal lawyers today for help.