Criminal double jeopardy: FOLEY V. COM. (COA 9/7/2007)

FOLEY V. COM.
CRIMINAL:  DOUBLE JEOPARDY
2006-CA-002098
PUBLISHED: REVERSING AND REMANDING
PANEL: DIXON, PRESIDING; VANMETER, GRAVES CONCUR
COUNTY: HARDIN
DATE RENDERED: 09/07/2007

CA reversed and remanded Defendant’s conviction for fleeing and evading on double jeopardy grounds.  Here, Foley led police on a high-speed pursuit that began in Hardin County and ended in Bullitt County.  Defendant pleaded guilty in Bullitt County and subsequently was convicted at trial in Hardin County for the same incident.  CA held that because Foley was prosecuted and pled guilty in the Bullitt Circuit Court to fleeing or evading under KRS 520.095, he cannot be prosecuted in Hardin County for a violation of the same statutory provision based upon the same facts. KRS 505.030(1)(b).  As such, the TC erred in failing to dismiss the charge of fleeing and evading. CA held that fleeing or evading, under circumstances as occurred in this case, is a single continuous act, regardless of how many police officers may be considered to have given an order to stop.

The double jeopardy clause of the Fifth Amendment to the United States Constitution provides, in pertinent part, that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." Section 13 of Kentucky’s Constitution includes a virtually identical provision and affords protections which parallel those guaranteed by the Fifth Amendment. Cooley v. Commonwealth, 821 S.W.2d 90, 92 (Ky. 1991). The double jeopardy clause prohibits a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). Kentucky’s statutory scheme in KRS 505.020 et seq. establishes a method of analyzing double jeopardy challenges for multiple offenses (KRS 505.020); former prosecutions for the same offense (KRS 505.030); former prosecutions for different offenses (KRS 505.040); and former prosecutions in other jurisdictions (KRS 505.050).

Digested by Scott C. Byrd
www.Olginandbyrd.com

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