104.3Double Jeopardy

Mistrial, Retrial and Appeal
Last Updated: 12/01/23

Key Concepts

  • In the most common mistrial situation (hung jury and the defense moves for a mistrial), the state will typically be allowed to retry the defendant for the same offense.
  • In more complex situations, such as judicial error in granting the mistrial or when the defense objects, additional criteria may have to be met to permit a retrial.
  • Defendant must timely raise any double jeopardy objections at the time of retrial, and is not entitled to an immediate appeal if that objection is overruled.

Prosecution for Same Offense After a Mistrial is Declared

If a mistrial is granted based on the defendant’s motion (or on the judge’s motion but with defendant’s consent), double jeopardy will generally not bar a second trial unless the defendant’s motion or consent was prompted by prosecutorial misconduct that was intended to provoke a motion for mistrial. Oregon v. Kennedy, 456 U.S. 667, 679 (1982); State v. Walker, 332 N.C. 520, 539 (1992); State v. White, 322 N.C. 506, 511 (1988) (Kennedy ruling adopted under state constitution); State v. White, 85 N.C. App. 81, 87 (1987). The same principle likely applies to judicial misconduct. United States v. Dinitz, 424 U.S. 600, 611 (1976) (dicta).

However, when a trial court declares a mistrial on its own motion (or the state’s motion) over the defendant’s objection, certain criteria must be met or else a retrial can be barred by double jeopardy.

First, there must be a “manifest necessity” to support declaring the mistrial (e.g., deadlocked jury, death or disability of judge/juror, lack of jurisdiction, etc.). See Arizona v. Washington, 434 U.S. 497, 506 (1978); State v. Sanders, 347 N.C. 587, 599 (1998).

Second, G.S. 15A-­1064 requires a trial judge before granting a mistrial to make findings of fact concerning the grounds for the mistrial, and it is error to fail to do so. See State v. Odom, 316 N.C. 306, 311 (1986) (findings of fact under G.S. 15A-­1064 are mandatory but defendant failed to preserve error for review on appeal by failing to object to declaration of mistrial); State v. Lachat, 317 N.C. 73, 85-­87 (1986) (where record was unclear as to whether manifest necessity for mistrial existed, failure to make findings of fact barred a second trial despite defendant’s lack of objection; Odom rule requiring objection should not be applied in capital cases); State v. Pakulski, 319 N.C. 562, 570-­71 (1987) (failure to find facts did not bar a second trial where manifest necessity for mistrial clearly appeared on the record); State v. Sanders, 122 N.C. App. 691, 696 (1996) (trial court erred by failing to find facts but defendant did not object and thus failed to preserve issue for review); State v. White, 85 N.C. App. 81, 85 (1987) (where grounds for mistrial clearly appeared on record, trial court’s failure to find facts was harmless error), aff’d, 322 N.C. 506 (1988).

In cases where a mistrial is declared and the jury indicates that it was only deadlocked on a lesser-included offense, double jeopardy does not bar re-prosecution of all offenses, even if the jury reported (e.g., through a written note or a colloquy with the judge) that it was unanimous for or against guilt of the greater offense. There must be a final verdict before there can be an implied acquittal. Blueford v. Arkansas, 566 U.S. 599 (2012); State v. Booker, 306 N.C. 302 (1982) (judge submitted first-degree murder and second-degree murder; jury indicated in a note that it was deadlocked on second-degree murder and judge ordered mistrial; court ruled that this was not an implied acquittal of first-degree murder, and double jeopardy did not bar re-prosecution of first-degree murder); State v. Hatcher, 117 N.C. App. 78 (1994) (mistrial on charged offense does not bar submission of lesser offense at retrial even though lesser offenses were not submitted at first trial); State v. Williams, 110 N.C. App. 306 (1993) (ruling similar to Booker); State v. Herndon, 177 N.C. App. 353 (2006) (jury’s note about its agreement on an issue in first trial, which ended in a hung jury, did not bar re-litigation of that issue in second trial on grounds of collateral estoppel or double jeopardy).

State’s Right to Appeal and Retry a Charge that was Dismissed After Jeopardy Attached (Specific Instances)

  1. Charge Dismissed Because of Fatal Variance
    There is no double jeopardy bar to a second trial when a charge is dismissed because there was a fatal variance between the proof and the allegations in the charge. State v. Mason, 174 N.C. App. 206 (2005); State v. Stinson, 263 N.C. 283 (1965); State v. Johnson, 9 N.C. App. 253 (1970); State v. Miller, 271 N.C. 646 (1967).
  2. State’s Right to Retry Charge Dismissed Because of Defective Indictment
    There is no double jeopardy bar to a second trial when a charge is dismissed because an indictment or other criminal pleading is fatally defective. State v. Whitley, 264 N.C. 742 (1965); State v. Jernigan, 255 N.C. 732 (1961); State v. Coleman, 253 N.C. 799 (1961); State v. Barnes, 253 N.C. 711 (1961).
  3. State’s Appeal of Mid-trial Dismissal of Charge
    The state may appeal and retry the case as long as it is not otherwise prohibited by double jeopardy, and the grounds for dismissal were not based on defendant’s guilt or innocence. G.S. 15A-1445(a); State v. Priddy, 115 N.C. App. 547 (1994) (trial judge erroneously found he did not have jurisdiction and dismissed the charge, state appealed, and the court ruled, based on United States v. Scott, 437 U.S. 82 (1978), that the Double Jeopardy Clause did not prohibit appeal and re-prosecution because the trial judge’s dismissal was not based on grounds of factual guilt or innocence); State v. Shedd, 117 N.C. App. 122 (1994) (judge dismissed first-degree murder charges against the defendant during trial because of discovery violations by the state; the court ruled that the state was authorized to appeal the midtrial dismissal without violating the Double Jeopardy Clause, because the dismissal was unrelated to a finding of the defendant’s factual guilt or innocence); but see State v. Vestal, 131 N.C. App. 756 (1998) (court dismissed charge on its own motion after jury was sworn, finding that police department had violated a court order regarding evidence destruction – state appealed, but appeal was dismissed and double jeopardy barred retrial since defendant had no role in seeking the dismissal and he was entitled to have case heard by the jury that was impaneled and sworn).
  4. State’s Appeal After Post-Verdict or Post-Trial Dismissal
    If a superior court judge grants a defendant’s post-trial motion to dismiss for insufficient evidence after the jury had returned a guilty verdict, and the state appeals and prevails, it does not violate double jeopardy to reinstate the guilty verdict against the defendant. State v. Scott, 146 N.C. App. 283 (2001), reversed on other grounds, 356 N.C. 591 (2002); see also State v. Allen, 144 N.C. App. 386 (2001) (trial judge declared mistrial for a hung jury, defendant later filed a motion for appropriate relief seeking dismissal based on sufficiency of the evidence, which the judge granted and state appealed – appellate court allowed appeal, reversed dismissal, and double jeopardy did not bar retrial).

Due Process: More Serious Charge after Appeal for Trial De Novo in Superior Court

If a defendant is convicted of a misdemeanor (for example, misdemeanor assault) in district court and appeals for trial de novo in superior court, the state’s later indictment of the defendant for a felony offense arising out of the same incident will generally be barred, based on a presumption of vindictiveness under the Due Process Clause, and the impermissible 'chilling effect' it would have on the defendant's exercise of the right to appeal. See Blackledge v. Perry, 417 U.S. 21 (1974); Thigpen v. Roberts, 468 U.S. 27 (1984) (prosecution of manslaughter was barred under Blackledge when charge was brought after conviction of misdemeanor traffic offenses in lower court and appeal for trial de novo in higher court; court stated in footnote 6 that state may attempt to rebut presumption of vindictiveness).

North Carolina's appellate courts have applied Blackledge and endorsed its reasoning. See State v. Mayes, 31 N.C. App. 694 (1976) (prosecution of felonious assault was barred under Blackledge when charge was brought after conviction of misdemeanor assault in district court and appeal for trial de novo in superior court); State v. Phillips, 38 N.C. App. 377 (1978) (finding it was a due process violation to charge and convict defendant of burglary in superior court after he was convicted of misdemeanor breaking or entering in district court and appealed); State v. Bissette, 142 N.C. App. 669 (2001) (reversing defendant's felony larceny conviction in superior court after he was convicted of misdemeanor larceny in district court based on same offense and appealed - applying Blackledge, court also noted that "this result did not depend upon a showing of actual retaliatory motive on the part of the prosecutor, since it was the mere potential for vindictiveness entering into the two-tiered appellate process which constituted a violation of the defendant’s rights").

Practice Pointer

Negotiated pleas are different
If the defendant pleads guilty pursuant to an agreement, such as where a felony larceny charge was reduced to misdemeanor larceny pursuant to a plea agreement, but then the defendant appeals the misdemeanor conviction and seeks trial de novo in superior court, the state is not bound to proceed only on the misdemeanor charge. For more information, see the related entry on Plea Agreements: Entry and Enforcement, Section F.

Due Process: Re-charging Offenses Dismissed Because Motion to Continue was Denied

Ordinarily the state is not barred from recharging an offense if it was dismissed because the state’s motion to continue was denied, unless other factors such as speedy trial or statute of limitations are involved.  See State v. Friend, 219 N.C. App. 338 (2012) (no violation of due process when the state refiled DWI charges against the defendant after having taken a dismissal of them in response to the trial court’s denial of its motion to continue). For further discussion, see John Rubin, "Another Salvo in the District Court Calendar Wars," N.C. Criminal Law Blog (Feb. 28, 2013).

Defendant’s Right to Raise Double Jeopardy Issue After Guilty or No Contest Plea

As a result of two decisions of the United States Supreme Court—Menna v. New York, 423 U.S. 61 (1975) and United States v. Broce, 488 U.S. 563 (1989)—a guilty plea waives a double jeopardy issue on appeal or collateral attack except if the double jeopardy issue can be resolved by examining the face of the criminal pleadings themselves. Thus, if other evidence must be considered, a guilty plea waives a double jeopardy issue on appeal or collateral attack. See, e.g., United States v. Brown, 155 F.3d 431 (4th Cir. 1998) (judge erred under United States v. Broce in holding evidentiary hearing to determine if defendant’s second drug conviction—based on a guilty plea—was barred by double jeopardy, because issue must be resolved solely by examining record of prior proceedings).

But North Carolina’s appellate courts have gone further, and held that a guilty or no contest plea serves as a general waiver of any subsequent claim that the prosecution was barred by double jeopardy. See State v. Hopkins, 279 N.C. 473 (1971) (where defendant, through his counsel, entered plea of guilty to criminal charge after his plea of former jeopardy was overruled, defendant waived his right, if any, to dismissal of charge on ground of former jeopardy); State v. Corbett, 191 N.C. App. 1, aff’d per curiam, 362 N.C. 672 (2008) (by pleading guilty, defendant waived claim that prosecution for felony habitual DWI after he pleaded guilty to misdemeanor DWI arising from same offense violated prohibition against double jeopardy); State v. Rinehart, 195 N.C. App. 774 (2009) (defendant who entered Alford plea to felonious escape and attaining habitual felon status did not have right to appeal denial of motions to dismiss on grounds of double jeopardy). The defendant must properly assert a double jeopardy issue at trial in order to raise the issue on appeal or collateral attack. State v. McKenzie, 292 N.C. 170 (1977).

Defendant’s Appeal of Double Jeopardy Issue to Appellate Division

  1. Denial of Motion to Dismiss
    A defendant has no right to a pretrial appeal to the appellate division of a judge’s denial of a defendant’s motion to dismiss a criminal charge on double jeopardy grounds. A defendant may only raise this issue after conviction. State v. Shoff, 342 N.C. 638 (1996); State v. Brunson, 165 N.C. App. 667 (2004) (defendant appealed drug convictions in state court, arguing he had already been prosecuted in federal court so prosecution was barred by G.S. 90-97 – court agreed as to trafficking charges, but conspiracy charges were not barred because they were not charged federally).
  2. State’s Failure to Join Related Offense
    G.S. 15A-926(c)(2) provides that a defendant who has been tried for one offense may thereafter move to dismiss a charge of a joinable offense. The motion to dismiss must be made before the second trial, and must be granted unless: (a) a motion for joinder of these offenses had been previously denied; (b) the court finds that the right of joinder has been waived; or (c) the court finds that because the prosecutor did not have sufficient evidence to warrant trying this offense at the time of the first trial, or because of some other reason, the ends of justice would be defeated if the motion were granted. G.S. 15A-926(c)(3) provides that the right to joinder under G.S. 15A-926(c) is inapplicable when the defendant has pleaded guilty or no contest to the previous charge. State v. Warren, 313 N.C. 254 (1985) (no error in state’s bringing burglary and larceny charges after trial for related murder when there was insufficient evidence at time of murder trial to charge burglary and larceny offenses; see G.S. 15A-926(c)(2)c.); State v. Jones, 50 N.C. App. 263 (1981) (defendant waived right to dismissal of joinable offenses tried separately when defendant failed to make motion for joinder of all pending joinable offenses, per G.S. 15A-926(c)(1), (c)(2)b.).
Portions of this entry were excerpted from the 2013 North Carolina Defender Manual, Volume II, Chapter 31.