What is Double Jeopardy?

March 1, 2022 Don Pumphrey, Jr. Criminal Defense Social Share

Double Jeopardy is a constitutional clause commonly brought up in the media but rarely understood in its entirety. Most know it’s a right and has to do with being accused of the same crime more than once, but a lot more goes into this constitutional provision than can be put simply. In this blog post, we’ll explore what Double Jeopardy really means and how it applies to Florida criminal law. The Double Jeopardy Clause essentially prohibits the State from prosecuting someone twice for a crime that is the same or substantially the same.

Double Jeopardy Defined

In Florida, the Double Jeopardy Clause is contained in the Florida and United States constitutions. In the United States Constitution, the Fifth Amendment states that “[n]o person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb . . . .” It serves as a guarantee against Double Jeopardy, protecting citizens from an overarching state police power. Its most common application is to prohibit the re-trial of a criminal defendant after they have already been acquitted, but there are many other applications available for the Double Jeopardy Clause in Florida.

Goals of the Double Jeopardy Clause

Generally, there are three main objectives: 

1. To prohibit the state from prosecuting and punishing for the same offense after a defendant has already been acquitted.
2. To prohibit the state from prosecuting and punishing for the same offense after the defendant has already been convicted.
3. To prohibit the defendant from receiving more than one sentence for the same criminal conviction.

When Does the Double Jeopardy Clause Apply?

It generally applies in any Florida proceeding that seeks to punish an offender. So, all prosecutions for felonies and misdemeanors trigger the Double Jeopardy Clause. This applies both at the state and federal levels of the criminal justice system. The United States Supreme Court’s incorporation doctrine allows the Double Jeopardy Clause of the United States Constitution to apply to the states. This protection is also written in Florida’s Constitution in Article 1, section 9: “No person shall be deprived of life, liberty or property without due process of law, or be twice put in jeopardy for the same offense.” The Double Jeopardy Clause does not apply in civil or administrative proceedings.

When Does the Double Jeopardy Protection Attached?

The key focal point in triggering Double Jeopardy protection is determining when the defendant is “in jeopardy” during a criminal proceeding. It usually does not apply if:

• The criminal defendant was arrested, briefly detained, and then released because there was not sufficient evidence; or
• The criminal defendant was indicted on criminal charges but the charges were subsequently dismissed.

In the above situations, there was no jeopardy at play. So, the state and law enforcement can still move the case forward.
Double Jeopardy has attached if:

• In a Jury Trial
  • A jury was sworn in for a criminal defendant’s trial.
• In a Bench Trial
  • The first witness was sworn in and the case is being heard by a judge.
• In Plea Bargaining
  • The criminal defendant accepts a plea.
• In a Mistrial
  • If a mistrial occurs because of misconduct by the state, overreaching by the state, or the state pushing the defendant to seek a mistrial.

Until Double Jeopardy protections have legally attached to a case or a defendant, the constitution does not prohibit re-trying the criminal defendant for that crime.

How Double Jeopardy Applies to Multiple Prosecutions

Oftentimes, a situation can result in the commission of multiple criminal offenses. As long as the crimes are considered separate criminal offenses, a criminal defendant can constitutionally face multiple punishments for that single criminal episode, one for each distinct offense. If the offenses are not distinct or separate and they come from the same criminal situation, then the Double Jeopardy Clause can constitutionally bar the prosecution and punishment of the same offenses.

Courts use the Blockburger test in determining when offenses that come from the same criminal situation are substantially the same or separate. This test, coming from Blockburger v. U.S., 284 U.S. 299 (1932), inquires whether each offense has an element that the other does not have. If the offenses don’t each have an element that the other does not have, then the offenses are considered the same offense and Double Jeopardy will apply.

Double Jeopardy and Lesser/Greater Offenses

If a criminal defendant is tried or convicted of a lesser included offense, the Double Jeopardy Clause will prevent the prosecution or punishment for the greater offense that comes from the same criminal situation. If conviction of the greater offense is not possible without the conviction of the lesser included offense, the Double Jeopardy Clause will prevent prosecution for the lesser included offense after the criminal defendant is convicted of the greater offense.

Tallahassee Criminal Defense Attorney

Ensure your rights are protected during your criminal proceeding. If you or a loved one has been accused of a crime in Florida, contact a qualified Tallahassee criminal defense attorney as soon as possible to discuss your case. Don Pumphrey and the members of the legal team at Pumphrey Law Firm have decades of experience protecting the rights of their clients and fighting for their freedom. Give us a call at (850) 681 – 7777 or send an online message to discuss your legal matter during an open and free consultation with an attorney in our team.

Written by Gabi D’Esposito

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