104.6Double Jeopardy

A Prior Conviction

In general, double jeopardy principles protect against a second prosecution for the same offense after conviction. Brown v. Ohio, 432 U.S. 161, 165 (1977); State v. Sparks, 362 N.C. 181, 186 (2008). This is true whether the conviction was based on a jury verdict, bench trial, or guilty plea. See State v. Neas, 278 N.C. 506, 512 (1971) (guilty plea, if accepted, “is the equivalent of a conviction.”). In North Carolina, a prayer for judgment continued (PJC) is not a conviction for double jeopardy purposes unless the trial court imposed conditions amounting to punishment. State v. Griffin, 246 N.C. 680, 683 (1957); State v. McDonald, 290 N.C. App. 92, 95 (2023); State v. Popp, 197 N.C. App. 226, 228 (2009); State v. Maye, 104 N.C. App. 437, 439 (1991); cf. G.S. 15A-101(4a). Further, unlike a prior acquittal, a prior conviction is not an absolute bar.

Lesser Included Offenses

As noted above, greater and lesser-included offenses are treated as the same offense. Hence, a defendant may not be retried for a greater offense following his conviction of a lesser-included offense, and vice versa: the sequence is immaterial. Brown v. Ohio, 432 U.S. 161, 168 (1977). An underlying offense (as the felony in felony murder) is considered a lesser-included offense, though the greater offense may otherwise be proven without it. Illinois v. Vitale, 447 U.S. 410, 420-21 (1980); State v. Gardner, 315 N.C. 444, 455 (1986).

Subsequent Developments

A defendant may, however, be prosecuted for a greater offense, despite a prior conviction for a lesser-included offense, when the State was unable to proceed on the greater charge at the outset because additional facts had not occurred or not been discovered. Garrett v. United States, 471 U.S. 773, 792 (1985). Hence, a defendant, convicted of assault, may be prosecuted for murder if the victim later dies as a result of the assault. State v. Meadows, 272 N.C. 327, 332 (1968); State v. Tripp, 286 N.C. App. 737, 742 (2022); State v. Noffsinger, 286 N.C. App. 729, 734 (2022).

Severance

A defendant may also be prosecuted for the same offense following a conviction when the defendant elected to have the two offenses tried separately. Jeffers v. United States, 432 U.S. 137, 152 (1977); State v. Alston, 82 N.C. App. 372, 377 (1986), aff’d, 323 N.C. 614 (1988).

Guilty Plea

A defendant may be retried for the same offense if s/he is charged with both a greater and a lesser-included offense and, over the state’s objection, pleads guilty to the lesser. Ohio v. Johnson, 467 U.S. 493, 501-02 (1984); State v. Hamrick, 110 N.C. App. 60, 67 (1993).

Breach of plea agreement

If a defendant breaches a plea agreement pursuant to which s/he pled guilty to a lesser-included offense, there is no bar to prosecuting the greater offense. Ricketts v. Adamson, 483 U.S. 1, 11 (1987); State v. Rico, 218 N.C. App. 109, 122 (2012) (Steelman, J., dissenting in part), rev’d per curiam based on dissent, 366 N.C. 327 (2012). A defendant who pled guilty to reduced charges in district court and appealed to superior court for trial de novo – repudiating the plea agreement – may therefore be prosecuted on the original charges. State v. Fox, 34 N.C. App. 576, 579 (1977); cf. G.S. 7A-271(b); G.S. 15A-1431(b).

Overturned Conviction

As noted above, retrial for the same offense is not barred by a prior conviction when the defendant succeeds in having his conviction overturned on grounds other than insufficiency of evidence. Price v. Georgia, 398 U.S. 323, 326-27 (1970); Ball v. United States, 163 U.S. 662, 672 (1896): State v. Britt, 291 N.C. 528, 543 (1977); State v. Stafford, 274 N.C. 519, 532 (1968). If, however, a conviction is overturned due to the insufficiency of evidence, the defendant may not be retried. Burks v. United States, 437 U.S. 1, 18 (1978); State v. Mason, 174 N.C. App. 206, 208 (2005); State v. Callahan, 83 N.C. App. 323, 325 (1986). When an appellate court finds insufficient evidence of a greater offense, but the verdict indicates that jury found all the elements of a lesser-included offense, the reviewing court may remand for entry of judgment on the lesser-included offense. Morris v. Mathews, 475 U.S. 237, 246 (1986); State v. Stokes, 367 N.C. 474, 482 (2014); cf. G.S. 15A-1447(c).