- Double jeopardy precludes a second criminal punishment for the same offense. It may also preclude some civil sanctions and remedies.
- Due process and statutory restrictions generally preclude imposition of a more severe sentence upon retrial in Superior Court, but there is no prohibition against receiving a more severe sentence in a trial de novo appealed from District Court.
Punishments Covered by Double Jeopardy
Punishments imposed for criminal offenses, criminal contempt imposed after a plenary hearing, and infractions are all included within double jeopardy. In addition, some civil remedies may also constitute “punishment” falling within double jeopardy, and thus barring a criminal prosecution for the same conduct. To determine whether a civil remedy is a punishment for double jeopardy purposes, the court engages in a two-step process. See Hudson v. United States, 522 U.S. 93 (1997).
The first question is whether the legislature indicated a preference for assigning the remedy either a “criminal” or “civil” label. If the legislature identified it as a criminal statute, then it is, and the inquiry is concluded.
If the legislature labeled it a civil remedy (or in cases where it’s unclear), the second question the court asks is whether the intent of the section is so punitive that it should be considered criminal, regardless of how it’s labeled. To make that determination, the court considers seven factors set out in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) (e.g., whether the sanction has historically been viewed as a punishment, promotes the aims of punishment such as retribution and deterrence, or addresses conduct which is already a crime). The Court noted that these factors must be considered in terms of the civil remedy statute at issue, not the particular civil remedy imposed in the case, and “only the clearest proof” will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal punishment.
Relevant cases on some of the most common “civil remedy vs. dual punishment” issues are summarized below:
- Civil Penalties Related to DWI and Habitual DWI
Civil penalties related to DWI offenses, such as a license revocation, generally have not been deemed a punishment for double jeopardy purposes. See State v. McKenzie, 367 N.C. 112 (2013) (holding that civil revocation of defendant’s commercial driver’s license for up to a year did not create double jeopardy bar to subsequent prosecution for DWI); State v. Bradley, 181 N.C. App. 557 (2007) (habitual DWI offense is not unconstitutional under the Double Jeopardy Clause based on the rulings in either Apprendi or Blakely); State v. Streckfuss, 171 N.C. App. 81 (2005) (seizing defendant’s out-of-state driver’s license in conjunction with pretrial thirty-day revocation under S. 20-16.5 was not punishment under Double Jeopardy Clause to bar later prosecution of DWI); State v. Evans, 145 N.C. App. 324 (2001) (thirty-day pretrial impaired driving license revocation under G.S. 20-16.5 is not punishment under United States and North Carolina constitutions and thus does not bar later prosecution of DWI).
- Sex Offender Civil Remedies/Sanctions
Registration, no contact orders, commitment, and satellite-based monitoring are civil remedies, not a punishment under double jeopardy. See State v. Hunt, 221 N.C. App. 48 (2012) (civil no contact order for convicted sex offender entered under S. 15A-1340.50 was not punishment under double jeopardy clause); State v. Anderson, 198 N.C. App. 201 (2009) (satellite-based monitoring is civil in nature, so its imposition does not violate a defendant’s right to be free from double jeopardy); Kansas v. Hendricks, 521 U.S. 346 (1997) (civil commitment of sexual offenders does not constitute punishment under double jeopardy provisions).
- Civil Remedies for Property Offenses
Civil remedies such as forfeiture generally have not been deemed "punishment" for double jeopardy purposes. See United States v. Ursery, 518 U.S. 267 (1996) (in rem forfeiture of property generally does not constitute punishment under double jeopardy); State v. Beckham, 148 N.C. App. 282 (2002) (defendant’s repayment of $200 to business under G.S. 1-538.2, which sets forth the civil liability for larceny, shoplifting, and similar theft offenses, did not create double jeopardy bar to his later prosecution for larceny of the property).
- Other Administrative Agencies
Separate actions by an administrative agency do not bar the state from prosecution on double jeopardy grounds. See In re Phillips, 128 N.C. App. 732 (1998) (school suspension for theft was not punishment to bar later prosecution for that theft); State v. Wilson, 127 N.C. App. 129 (1997) (Alcohol Beverage Commission administrative action was not punishment to bar later prosecution for selling beer to person under 21).
- Probation/Post-release Violations
The same conduct may be addressed by both a probation or post-release supervision violation and a new criminal charge without violating double jeopardy. See State v. Sparks, 362 N.C. 181 (2008) (double jeopardy did not bar the criminal prosecution of a registered sex offender for failing to register a change of address with a sheriff after the same conduct had been used as basis to revoke the offender’s post-release supervision); State v. Monk, 132 N.C. App 248 (1999) (double jeopardy does not bar criminal prosecution for substantive offense used as basis for probation violation).
Double Jeopardy Inapplicable to Sentencing Hearing, Except Death Sentence Verdict
The Double Jeopardy Clause does not apply to sentencing hearings, except that a defendant who has been sentenced to life imprisonment in a capital sentencing hearing may not—if granted a new trial or sentencing hearing—be sentenced to death. Bullington v. Missouri, 451 U.S. 430 (1981) (double jeopardy bars death penalty at resentencing hearing after defendant received life imprisonment at prior sentencing hearing). See also Monge v. California, 524 U.S. 721 (1998) (double jeopardy does not apply to noncapital sentencing hearing); State v. Jones, 314 N.C. 644 (1985) (double jeopardy does not apply to finding of aggravating and mitigating factors under Fair Sentencing Act; sentencing judge properly found aggravating factor that was not found at prior sentencing hearing); State v. Duke, 360 N.C. 110 (2005) (no double jeopardy violation in submitting aggravating circumstance in capital resentencing hearing that had not been submitted in first capital sentencing hearing in which defendant had received death sentence); State v. Adams, 347 N.C. 48 (1997) (double jeopardy did not bar state from proving aggravating circumstance at capital resentencing hearing, even though state had stipulated at prior hearing that aggravating circumstance did not exist).
Due Process Issues Regarding Increased Sentence After Retrial or Trial De Novo
- Increased Sentence After Retrial in Superior Court
Although the Double Jeopardy Clause does not prohibit an increased sentence after a retrial, the Court in North Carolina v. Pearce, 395 U.S. 711 (1969) ruled that the Due Process Clause requires an increased sentence must be justified by the defendant’s misconduct occurring after the original sentence was imposed. However, North Carolina statutory law imposes a more severe restriction than Pearce on an increased sentence after retrial. G.S. 15A-1335 provides that when a conviction or sentence imposed in superior court has been set aside on direct review or collateral attack, a judge may not impose a new sentence for the same offense, or for a different offense based on the same conduct, that is more severe. For cases interpreting this statute, see State v. Hemby, 333 N.C. 331 (1993); State v. Nixon, 119 N.C. App. 571 (1995); State v. Harris, 115 N.C. App. 42 (1994); State v. Pakulski, 106 N.C. App. 444 (1992); State v. Kirkpatrick, 89 N.C. App. 353 (1988).
- Increased Sentence After Trial De Novo in Superior Court
There is no constitutional prohibition on increasing a defendant’s sentence after a conviction in superior court on appeal for trial de novo from district court, absent proof of actual vindictiveness for the defendant’s asserting the right to trial de novo. See Colten v. Kentucky, 407 U.S. 104 (1972) (ruling in North Carolina v. Pearce inapplicable to increased sentence in trial de novo system); State v. Sparrow, 276 N.C. 499 (1970) (similar ruling, even though it was decided before Colten); State v. Butts, 22 N.C. App. 504 (1974) (citing Colton, holding that a greater sentence may be imposed upon retrial in superior court and it does not create a presumption of vindictiveness).
However, in State v. Midgett, 78 N.C. App. 387 (1985), without discussing either the Colten or Sparrow rulings, the North Carolina Court of Appeals relied on Wasman v. United States, 468 U.S. 559 (1984) and stated that there is a presumption of vindictiveness when a defendant receives an increased sentence in superior court after trial de novo if the state offers no evidence to support the increase, or the sentencing court fails to explain or justify the increased sentence. The court’s statements in Midgett are inconsistent with Colten.