posted on April 7, 2004 01:19:35 PM newOMG reamond brought out exceptions to the rule cases... and do we know if the permissions were granted? No
What do you mean exceptions and permissions ?? No case is heard by the USSC unless granted cert. You're an idiot - LMAO!!!
By the way "exceptions" made by the USSC are the law of the land.
Bottom line-- I am right.
She can appeal.
BTW--- I stopped looking after bringing up 122 USSC cases - there are thousands more if you include the lower appellate cases. It would appear the "exceptions to the rule cases" are solid legal positions of the Supreme Court.
posted on April 7, 2004 01:24:28 PM new
If you ever even get a summons for jaywalking 12, I think you should get a lawyer. With your legal smarts, you'd probably be sentenced to life, deported, and accused of killing Jimmy Hoffa if you represented yourself for jaywalking.
posted on April 7, 2004 01:51:01 PM new
Reamond - do you feel tht she should not have been charged in thendeath as a result of not having the reccomended treatment or do you feel that she should not have been charged with anything at all including usage the endagerment charges which are frequently brought against mothers whose infants are born with drugs in their system?
Do you believe that at the point in time that a woman makes th decision to carry a child to term she fails to adopt a certain degree of responsibility for the welfare of that child?
~~~ • ~~~ • ~~~ • ~~~ • ~~~
If it's really "common" sense, why do so few people actually have it?
posted on April 7, 2004 01:52:24 PM new
Whatever, plea bargain or not. Did anyone else notice the woman had cocaine and alcohol in her system. Is there more to this story then 'refusing a C section'?
__________________________________
"Somewhere, something incredible is waiting to be known."- Carl Sagan
posted on April 7, 2004 05:26:06 PM newReamond - do you feel tht she should not have been charged in thendeath as a result of not having the reccomended treatment or do you feel that she should not have been charged with anything at all including usage the endagerment charges which are frequently brought against mothers whose infants are born with drugs in their system?
She should not have been charged at all. This is a touching case, it always is when you involve a fetus or a child, but the privacy and autonomy principles are more important, especially for females.
Do you believe that at the point in time that a woman makes th decision to carry a child to term she fails to adopt a certain degree of responsibility for the welfare of that child?
What I believe is really of no consequence, in fact many might be surprised by what I believe. With that said, it is outside the realm of the government to tell pregnant women what medical procedures they must submit to, just as it is outside the realm of the government to tell anyone of sound mind to submit to any medical procedure. Should the government prevent procreation of people with genetic disabilities ? Arguments could be made both ways, but it should not be in the governments power to make that decision.vAnd I don't think a woman has made a decision to carry to full term until she delivers.
edited to add- I did some digging, she also got no jail time in the plea bargain.
posted on April 7, 2004 05:31:01 PM newYou're wrong in your general statment about appeal... those case were not even along the lines of this one...
I am exactly right, and what's more the United States Supreme Court agrees with me. The cases are exactly along the lines of this one. You've just had your nose rubbed in it and are trying desperately to remove your feet from your mouth.
Nice try though... you should thank whoever helped you with the big words...
Which BIG words "the", or "it", or perhaps "all" or "at".
If you let me know what elementary grade level you comprehend at, I'll try to dumb down our discourse.
posted on April 7, 2004 05:47:42 PM new
::With that said, it is outside the realm of the government to tell pregnant women what medical procedures they must submit to, just as it is outside the realm of the government to tell anyone of sound mind to submit to any medical procedure.::
That is not what I was talking about, I as talking about the endangerment charges stemming from the drugs and alcohol present in the infants systems. Should a pregnant mother be held resposible for taking substances that are knowingly harmful to the child they are carrying once a decision to carry the child to term is made?
~~~ • ~~~ • ~~~ • ~~~ • ~~~
If it's really "common" sense, why do so few people actually have it?
posted on April 7, 2004 05:54:46 PM new
The substance abuse should carry no more criminal charges than abuse/possession charges that a male would face, certainly no more penalties than Rush Limbaugh gets.
Again, when we interject the government's interest in these health concerns, what about the woman who uses too much salt, is overweight, etc.. It is not that pro-choice people are callous towards the fetus, but the right that must be surrendered is too great not to overcome the interests of the fetus.
posted on April 7, 2004 07:25:53 PM new
But there are cases, and all of them prove my position. If you were right, there would be no cases addressing issues of plea bargained cases.
There would in fact be cases to support your position if you were right. The appeal cases would in fact be a denial of the appeal due to the plea bargain "no appeal" terms and all other merits of the appeal would not be reached.
So again, you are wrong. Plea bargained cases can be appealed, and in fact are all the time.
posted on April 8, 2004 06:39:06 AM new
Reamond is correct about being able to appeal. There are appeals on plea bargain every day, but 99.9% of them are denied.
He is incorrect about double jeopardy attaching. In order for the double jeopardy clause to attach to any action, "the accused must first suffer an actual acquittal or conviction on the merits of the offense . Then, and only then, will a second prosecution for that same offense be barred."
When you enter a plea bargain you waive the jury trial and therefore the "merits of the offense" are never heard...thus double jeopardy does not attach.
As Twelvepole said, the plea becomes null and void. Then the original charges stand. It's basically like going back to square one and starting over.
[ edited by tnernie on Apr 8, 2004 06:42 AM ]
posted on April 8, 2004 07:02:48 AM newFenix, also if she was on drugs when she made the plea bargain, she could appeal.
Most likely she had been incarcerated awaiting trial, so she was probably not on drugs when she entered her plea.
IMHO...without having the actual case file and evidence to look at, we cannot pass judgment on the case. I for one, don't believe even half of what I read in the newspapers, so we don't know that we've heard "the truth, the whole truth and nothing but the truth".
posted on April 8, 2004 10:34:36 AM newThere are appeals on plea bargain every day, but 99.9% of them are denied.
That statement is pretty much supported on the FindLaw site under plea bargains. The cases that go to the USSC have usually done so because rights were violated in some way.
posted on April 8, 2004 10:55:24 AM new
You're wrong tnernie. A guilty plea is a conviction on the merits of the offense.
Below is a US Supreme Court case that is on point. The defendants plead guilty, then were punished again via civil penalties for the same acts, and the US Supreme Court upheld the lower court's finding of double jeopardy.
If you were correct, because there was a guilty ples, they never would have reviewed the merits of the appeal and just ruled that double jeopardy could not apply.
DEPARTMENT OF REVENUE OF MONTANA, PETITIONER v. KURTH RANCH et al.
on writ of certiorari to the united states court of appeals for the ninth circuit
[June 6, 1994]
Justice Stevens delivered the opinion of the Court.
[n.1]
Montana's Dangerous Drug Tax Act [n.2] took effect on October 1, 1987. The Act imposes a tax "on the possession and storage of dangerous drugs," [n.3] § 15-25-111, and expressly provides that the tax is to be "collected only after any state or federal fines or forfeitures have been satisfied." § 15-25-111(3). The tax is either 10 percent of the assessed market value of the drugs as determined by the Montana Department of Revenue (DOR) or a specified amount depending on the drug ($100 per ounce for marijuana, for example, and $250 per ounce for hashish), whichever is greater. § 15-25-111(2). The Act directs the state treasurer to allocate the tax proceeds to special funds to support "youth evaluation" and "chemical abuse" programs and "to enforce the drug laws." §§ 15-25-121, 15-25-122. [n.4]
In addition to imposing reporting responsibilities on law enforcement agencies, [n.5] the Act also authorizes theDOR to adopt rules to administer and enforce the tax. Under those rules, taxpayers must file a return within 72 hours of their arrest. Mont. Admin. Rule 42.34.102(1) (1988). The Rule also provides that "[a]t the time of arrest law enforcement personnel shall complete the dangerous drug information report as required by the department and afford the taxpayer an opportunity to sign it." Rule 42.34.102(3). If the tax payer refuses to do so, the law enforcement officer is required to file the form within 72 hours of the arrest. Ibid. The "associated criminal nature of assessments under this act" justifies the expedited collection procedures. See Rule 42.34.103(3) (1988). The taxpayer has no obligation to file a return or to pay any tax unless and until he is arrested.
The six respondents, all members of the extended Kurth family, have for years operated a mixed grain and livestock farm in central Montana. [n.6] In 1986 they began to cultivate and sell marijuana. About two weeks after the new Drug Tax Act went into effect, Montana law enforcement officers raided the farm, arrested the Kurths, and confiscated all the marijuana plants, materials, and paraphernalia they found. In re Kurth Ranch, 145 B. R. 61, 66 (Bkrtcy. Ct. Mont. 1990). [n.7] Theraid put an end to the marijuana business and gave rise to four separate legal proceedings.
In one of those proceedings, the State filed criminal charges against all six respondents in the Montana District Court, charging each with conspiracy to possess drugs with the intent to sell, Mont. Code Ann. § 45-4" 102 (1987), or, in the alternative, possession of drugs with the intent to sell, § 45-9-103. [n.8] Each respondent initially pleaded not guilty, but subsequently entered into a plea agreement. On July 18, 1988, the court sentenced Richard Kurth and Judith Kurth to prison and imposed suspended or deferred sentences on the other four family members.
The county attorney also filed a civil forfeiture action seeking recovery of cash and equipment used in the marijuana operation. The confiscated drugs were not involved in that action, presumably because law enforcement agents had destroyed them after an inventory. The respondents settled the forfeiture action with an agreement to forfeit $18,016.83 in cash and various items of equipment.
The third proceeding involved the assessment of the new tax on dangerous drugs. Despite difficulties the DOR had in applying the Act for the first time, it ultimately attempted to collect almost $900,000 in taxes on marijuana plants, harvested marijuana, hash tar and hash oil, interest, and penalties. [n.10] The Kurths contested the assessments in administrative proceedings. Those proceedings were automatically stayed in September 1988, however, when the Kurths initiated the fourth legal proceeding triggered by the raid on their farm: a petition for bankruptcy under Chapter 11 of the Bankruptcy Code. See 11 U.S.C. § 362(a).
In the bankruptcy proceedings, the Kurths objected to the DOR's proof of claim for unpaid drug taxes and challenged the constitutionality of the Montana tax. After a trial, the Bankruptcy Court held most of the assessment invalid as a matter of state law, [n.11] but concluded that an assessment of $181,000 on 1,811 ounces of harvested marijuana was authorized by the Act. It held that assessment invalid under the Federal Constitution.
Relying primarily on United States v. Halper, 490 U.S. 435 (1989), the Bankruptcy Court decided that the assessment constituted a form of double jeopardy. Thecourt rejected the State's argument that the tax was not a penalty because it was designed to recover law enforcement costs; as the court noted, the DOR "failed to introduce one scintilla of evidence as to cost of the above government programs or costs of law enforcement incurred to combat illegal drug activity." 145 B. R., at 74. After noting that a portion of the assessment resulted in a tax eight times the product's market value, [n.12] the court explained that the punitive character of the tax was evident
"because drug tax laws have historically been regarded as penal in nature, the Montana Act promotes the traditional aims of punishment-- retribution and deterrence, the tax applies to behavior which is already a crime, the tax allows for sanctions by restraint of Debtors' property, the tax requires a finding of illegal possession of dangerous drugs and therefore a finding of scienter, the tax will promote elimination of illegal drug possession, and the tax appears excessive in relation to the alternate purpose assigned, especially in the absence of any record developed by the State as to societal costs. Finally, the tax follows arrest for possession of illegal drugs and the tax report is made by law enforcement officers, not the taxpayer, who may or may not sign the report." Id., at 75-76.
These aspects led the court to the "inescapable conclusion" that the drug tax statute's purpose was deterrence and punishment. Id., at 76.
The District Court affirmed. Agreeing with the Bankruptcy Court's findings and reasoning, it concluded that the Montana Dangerous Drug Tax Act "simply punishes the Kurths a second time for the same criminal conduct." In re Kurth Ranch, CV 90-084%PGH, 1991 WL 365065 (D. Mont., Apr. 23, 1991) (reprinted at App. to Pet. for Cert. 22). That and the DOR's failure to provide an accounting of its actual damages or costs convinced the Bankruptcy Court that the tax assessments violated the Fifth Amendment's Double Jeopardy Clause. Ibid.
The Court of Appeals for the Ninth Circuit also affirmed, but based its conclusion largely on the State's refusal to offer evidence justifying the tax, and accordingly refused to hold the tax unconstitutional on its face. In re Kurth Ranch, 986 F. 2d 1308, 1312 (CA9 1993). The court first determined that under Halper, a disproportionately large civil penalty can be punitive for double jeopardy purposes. Id., at 1310. That the assessment is called a tax, as opposed to some kind of penalty, is not controlling. Id., at 1310-1311. The central inquiry under Halper, the court determined, is whether the sanction imposed is rationally related to the damages the government suffered. Id., at 1311. That inquiry only applies to cases in which there has been a separate criminal conviction, however. [n.13] The courtconcluded that the Kurths were entitled to an accounting to determine if the sanction constitutes an impermissible second punishment, and because the State refused to offer any such evidence, it held the tax unconstitutional as applied to the Kurths. 986 F. 2d, at 1312.
While this case was pending on appeal, the Montana Supreme Court reversed two lower state court decisions that had held that the Dangerous Drug Tax was a form of double jeopardy. Sorensen v. State Dept. of Revenue, 254 Mont. 61, 836 P. 2d 29 (1992). Over the dissent of two Justices, the State Supreme Court found that the legislature had intended to establish a civil, not a criminal, penalty and that the tax had a remedial purpose other than promoting retribution and deterrence. Id., at 31. The court found that Halper was not controlling, both because it expressly announced " `a rule for the rare case' " and because the case involved a civil penalty, not a tax. Id., at 32-33. The Sorensen court concluded that the drug tax was not excessive and that a tax, unlike the civil sanction at issue in Halper, requires no proof of the State's remedial costs on the part of the State. Id., at 33.
The Montana Supreme Court's decision is directly at odds with the conclusion reached in the federal proceedings involving the Kurths. We therefore granted certiorari to review the decision of the Court of Appeals. 509 U. S. ___ (1993). We now affirm its judgment.
In Halper we considered "whether and under what circumstances a civil penalty may constitute `punishment' for the purpose of double jeopardy analysis." 490 U. S., at 436. Our answer to that question does notdecide the different question whether Montana's tax should be characterized as punishment.
Halper was convicted of 65 separate violations of the criminal false claims statute, 18 U.S.C. § 287 each involving a demand for $12 in reimbursement for medical services worth only $3. After Halper was sentenced to two years in prison and fined $5,000, the Government filed a separate action to recover a $2,000 civil penalty for each of the 65 violations. See 31 U.S.C. § 3729 (1982 ed., Supp. II). The District Court found that the $130,000 recovery the statute authorized "bore no `rational relation' to the sum of the Government's $585 actual loss plus its costs in investigating and prosecuting Halper's false claims." 490 U. S., at 439. In the court's view, a civil penalty "more than 220 times greater than the Government's measurable los[s] qualified as punishment" that was barred by the Double Jeopardy Clause. Ibid.
On direct appeal to this Court, we rejected the Government's submission that the Double Jeopardy Clause only applied to punishment imposed in criminal proceedings, reasoning that its violation "can be identified only by assessing the character of the actual sanctions imposed on the individual by the machinery of the state." Id., at 447. [n.14] In making such an assessment, "the labels `criminal' and `civil' are not of paramount importance." Ibid. Accepting the District Court's findings, we held that "a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extentthat the second sanction may not fairly be characterizedas remedial, but only as a deterrent or retribution." Id., at 448-449.
Halper thus decided that the legislature's description of a statute as civil does not foreclose the possibility that it has a punitive character. [n.15] We also recognized in Halper that a so called civil "penalty" may be remedial in character if it merely reimburses the government for its actual costs arising from the defendant's criminal conduct. Id., at 449-450, 452. We therefore remanded the case to the District Court to determine what portion of the statutory penalty could be sustained as compensation for the Government's actual damages.
Halper did not, however, consider whether a tax may similarly be characterized as punitive.
Criminal fines, civil penalties, civil forfeitures, and taxes all share certain features: They generate government revenues, impose fiscal burdens on individuals, and deter certain behavior. All of these sanctions are subject to constitutional constraints. A government may not impose criminal fines without first establishing guilt by proof beyond a reasonable doubt. Cf. In re Winship, 397 U.S. 358 (1970). A defendant convicted and punished for an offense may not have a nonremedial civil penaltyimposed against him for the same offense in a separate proceeding. Halper, supra. A civil forfeiture may violate the Eighth Amendment's proscription against excessive fines. Austin v. United States, 509 U. S. ___ (1993). And a statute imposing a tax on unlawful conduct may be invalid because its reporting requirements compel taxpayers to incriminate themselves. Marchetti v. United States, 390 U.S. 39 (1968).
As a general matter, the unlawfulness of an activity does not prevent its taxation. Marchetti, 390 U. S., at 44; United States v. Constantine, 296 U.S. 287, 293 (1935); James v. United States, 366 U.S. 213 (1961). Montana no doubt could collect its tax on the possession of marijuana, for example, if it had not previously punished the taxpayer for the same offense, or, indeed, if it had assessed the tax in the same proceeding that resulted in his conviction. Missouri v. Hunter, 459 U.S. 359, 368-369 (1983); see also Halper, 490 U. S., at 450. Here, we ask only whether the tax has punitive characteristics that subject it to the constraints of the Double Jeopardy Clause.
Although we have never held that a tax violated the Double Jeopardy Clause, we have assumed that one might. [n.16] In the context of other constitutional requirements, we have repeatedly examined taxes for constitutional validity. We have cautioned against invalidating a tax simply because its enforcement might be oppressive or because the legislature's motive was somehow suspect, A. Magnano Co. v. Hamilton, 292 U.S. 40, 44 (1934). Yet we have also recognized that "there comes a time in the extension of the penalizing features of the so called tax when it loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment." Id., at 46 (citing Child Labor Tax Case, 259 U.S. 20, 38 (1922)). That comment, together with Halper's unequivocal statement that labels do not control in a double jeopardy inquiry, indicates that a tax is not immune from double jeopardy scrutiny simply because it is a tax.
Halper recognized that "[t]his constitutional protection is intrinsically personal," and that only "the character of the actual sanctions" can substantiate a possible double jeopardy violation. 490 U. S., at 447. Whereas fines, penalties, and forfeitures are readily characterized as sanctions, taxes are typically different because they are usually motivated by revenue raising rather than punitive purposes. Yet at some point, an exaction labeled as a tax approaches punishment, and our task is to determine whether Montana's drug tax crosses that line.
We begin by noting that neither a high rate of taxation nor an obvious deterrent purpose automatically marks this tax a form of punishment. In this case, although those factors are not dispositive, they are at least consistent with a punitive character. A significant part of the assessment was more than eight times the drug's market value--a remarkably high tax. [n.17] Thatthe Montana legislature intended the tax to deter people from possessing marijuana is beyond question. [n.18] The DOR reminds us, however, that many taxes that are presumed valid, such as taxes on cigarettes and alcohol, are also both high and motivated to some extent by an interest in deterrence. Indeed, although no double jeopardy challenge was at issue, this Court sustained the steep $100 per ounce federal tax on marijuana in United States v. Sanchez, 340 U.S. 42 (1950). Thus, while a high tax rate and deterrent purpose lend support to the characterization of the drug tax as punishment, these features, in and of themselves, do not necessarily render the tax punitive. Cf. Sonzinsky v. United States, 300 U.S. 506, 513-514 (1937).
Other unusual features, however, set the Montana statute apart from most taxes. First, this so called tax is conditioned on the commission of a crime. Thatcondition is "significant of penal and prohibitory intent rather than the gathering of revenue." [n.19] Moreover, the Court has relied on the absence of such a condition to support its conclusion that a particular federal tax was a civil rather than a criminal sanction. [n.20] In this case, the tax assessment not only hinges on the commission of a crime, it also is exacted only after the taxpayer has been arrested for the precise conduct that gives rise to the tax obligation in the first place. [n.21] Persons who have been arrested for possessing marijuana constitute the entire class of taxpayers subject to the Montana tax.
Taxes imposed upon illegal activities are fundamentally different from taxes with a pure revenue raising purpose that are imposed despite their adverse effect onthe taxed activity. But they differ as well from mixed motive taxes that governments impose both to deter a disfavored activity and to raise money. By imposing cigarette taxes, for example, a government wants to discourage smoking. But because the product's benefits--such as creating employment, satisfying consumer demand, and providing tax revenues--are regarded as outweighing the harm, that government will allow the manufacture, sale, and use of cigarettes as long as the manufacturers, sellers, and smokers pay high taxes that reduce consumption and increase government revenue. These justifications vanish when the taxed activity is completely forbidden, for the legitimate revenue raising purpose that might support such a tax could be equally well served by increasing the fine imposed upon conviction. [n.22]
The Montana tax is exceptional for an additional reason. Although it purports to be a species of property tax--that is, a "tax on the possession and storage ofdangerous drugs," Mont. Code Ann. § 15-25-111 (1987)--it is levied on goods that the taxpayer neither owns nor possesses when the tax is imposed. Indeed, the State presumably destroyed the contraband goods in this case before the tax on them was assessed. If a statute that amounts to a confiscation of property is unconstitutional, Heiner v. Donnan, 285 U.S. 312, 326 (1932); Nichols v. Coolidge, 274 U.S. 531, 542 (1927), a tax on previously confiscated goods is at least questionable. [n.23] A tax on "possession" of goods that no longer exist and that the taxpayer never lawfully possessed has an unmistakable punitive character. This tax, imposed on criminals and no others, departs so far from normal revenue laws as to become a form of punishment.
Taken as a whole, this drug tax is a concoction of anomalies, too far removed in crucial respects from a standard tax assessment to escape characterization as punishment for the purpose of Double Jeopardy analysis. [n.24]
Because Montana's tax is fairly characterized as punishment, the judgment of the Court of Appeals must be affirmed. In Halper, we recognized that a civil penalty may be imposed as a remedy for actual costs tothe State that are attributable to the defendant's conduct. 490 U. S., at 452. Yet as The Chief Justice points out, tax statutes serve a purpose quite different from civil penalties, and Halper's method of determining whether the exaction was remedial or punitive "simply does not work in the case of a tax statute." Post, at 3 (dissenting opinion). Subjecting Montana's drug tax to Halper's test for civil penalties is therefore inappropriate. Even if it were proper to permit such a showing, Montana has not claimed that its assessment in this case even remotely approximates the cost of investigating, apprehending, and prosecuting the Kurths, or that it roughly relates to any actual damages that they caused the State. And in any event, the formula by which Montana computed the tax assessment would have been the same regardless of the amount of the State's damages and, indeed, regardless of whether it suffered any harm at all.
This drug tax is not the kind of remedial sanction that may follow the first punishment of a criminal offense. Instead, it is a second punishment within the contemplation of a constitutional protection that has "deep roots in our history and jurisprudence," Halper, 490 U. S., at 440, and therefore must be imposed during the first prosecution or not at all. The proceeding Montana initiated to collect a tax on the possession of drugs was the functional equivalent of a successive criminal prosecution that placed the Kurths in jeopardy a second time "for the same offence."
posted on April 8, 2004 11:02:18 AM newThere are appeals on plea bargain every day, but 99.9% of them are denied.
Demied on what basis ? That they aren't allowed to appeal because of a guilty plea ? NO !
Do you know what percentage of cases the US Supreme Court gives cert to ? But the important thing is that any case the Supreme Court decides is the law for all such cases.
That statement is pretty much supported on the FindLaw site under plea bargains. The cases that go to the USSC have usually done so because rights were violated in some way.
Gee, isn't that what Reamond said at the begining of the thread when several legal eagles here said there could not be an appeal when a defendant pleads guilty ?
"There are any number of appeals that she can bring."
"She can claim constitutional violations of privacy and equal protections, and many other issues."
posted on April 8, 2004 11:11:39 AM newWhen you enter a plea bargain you waive the jury trial and therefore the "merits of the offense" are never heard...thus double jeopardy does not attach.
So completely wrong. What about a trial where you waive a jury ? Are you saying that it would not be a "convictions on the merits". And just to make it more clear on how wrong you are:
A guilty plea contains and is based on the "merits" of the case, including facts and all the elements of the law as applied. Even pleas that stipulate the defendant pleads guilty with the clause that he/she does so only because they believe they will be found guilty by a trial is based on the merits.
Convictions not on the merits would be such as a conviction in absentia, or other default mechanisms.
In any event, a plea bargain is a conviction on the merits.
posted on April 8, 2004 11:23:10 AM new
The double jeopardy analysis for this case will not have anything to do with the plea bargain, and once the court accepts the plea baragin, which then constitutes a conviction on the merits, double jeopardy will depend on the whether the statute she was convicted under could be interpreted as a lesser included offence or contain the same elements of whatever charges they may bring.
Prosecutors only get one bite at the apple for the same activities that gave rise to the prosecution, regardless of whether there is a plea bargain or not.
posted on April 8, 2004 12:50:41 PM newIf you were correct, because there was a guilty ples, they never would have reviewed the merits of the appeal and just ruled that double jeopardy could not apply.
Reamond, I read the entire case. It's comparing apples to oranges in regards to the case you're now discussing.
However...to humor you I will respond to it:
They didn't appeal their plea agreement, they appealed the tax imposed through the BANKRUPTCY COURT. Therefore, the original plea agreement (aka CRIMINAL CONVICTION) still stood, thus making it a valid and true conviction, which is why the Court felt that the tax/penalty which arose from the same offense constituted double jeopardy.
posted on April 8, 2004 12:54:00 PM new
[i][b]There are appeals on plea bargain every day, but 99.9% of them are denied.
Demied on what basis ? That they aren't allowed to appeal because of a guilty plea ? NO ! [/b][/i]
Reamond, please read a little more carefully.
I said:
Reamond is correct about being able to appeal.
I agreed with you on this one, I was simply stating that although they are ALLOWED to appeal most of the appeals are denied.
[ edited by tnernie on Apr 8, 2004 01:01 PM ]
posted on April 8, 2004 12:59:32 PM newWhen you enter a plea bargain you waive the jury trial and therefore the "merits of the offense" are never heard...thus double jeopardy does not attach.
So completely wrong. What about a trial where you waive a jury ? Are you saying that it would not be a "convictions on the merits".
Sorry, I should have been more specific:
A. When Does Right Against Double Jeopardy ATTACH?
Doesn't if civil trial. Jury trial when jury sworn. Bench trial when
1st Witness sworn.
B. Exceptions
Same sovereign/same offense/jeopardy attach, yet retrial OK
1. Jury unable to agree on verdict (if unanimous required)
2. Mistrial for Manifest Necessity (D appendicitis)
3. Retrial after Successful Appeal
4. [b] If Defendant breaches plea bargain agreement; plea & sentence vacated &
original charge reinstated. [/b]
Need *I* say more...
edited to try and fix the d*mn html tags.
[ edited by tnernie on Apr 8, 2004 01:03 PM ]
[ edited by tnernie on Apr 8, 2004 01:05 PM ]
[ edited by tnernie on Apr 8, 2004 01:06 PM ]
posted on April 8, 2004 01:12:41 PM newProsecutors only get one bite at the apple for the same activities that gave rise to the prosecution, regardless of whether there is a plea bargain or not.
